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Friday, April 23, 2010

The Copyright Law Is A Ass


Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, the Copyright and Patent Clause (or Patent and Copyright Clause), the Intellectual Property Clause and the Progress Clause, empowers the United States Congress:
“ To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Note the word "limited".

The current law says that copyright is for the "life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier. Copyright protection for works published prior to January 1, 1978, was increased by 20 years to a total of 95 years from their publication date."

I'd like to say that the continuing extensions of the copyright law is unconstitutional. I'd LIKE to say that, but I can't, because the Supreme Court ruled otherwise in 2003.

To be fair, this law is more or less consistent with the Berne convention, signed by the United States in 1988

But in a more fundamental way, there seems to be a gross lack of understanding about copyright generally. Copyright protection is not an absolute. People can use other people's copyrighted materials all the time through fair use, use in reviews, parody.

An interesting take on copyright comes from Paul Rapp, intellectual property lawyer from around these parts. He is also F. Lee Harvey Blotto, drummer of the almost legendary band Blotto.

Web portals like YouTube are protected by the "safe harbor" provisions of a law called the Digital Millennium Copyright Act, which says that YouTube generally doesn’t have to actively monitor what’s being posted on its site. Once the portal is informed that there’s infringing stuff posted, it has a duty to investigate and take down offending material. This merely reaffirms that it’s the copyright owners’ duty to police its copyright, not someone else’s. In other words, it’s Viacom’s job, not YouTube’s.

This makes perfect sense. Because often the copyright owner is fine that their stuff has been posted without permission. A few years ago I noticed that folks had posted Blotto’s old videos on YouTube. My reaction was "great, now I don’t have to do it." I’d been meaning to do it myself but was too lazy to figure out how. We wanted the videos up, for whatever promotional value they might bring. Somebody even posted "Lifeguard" under the heading "Worst 80’s Video Ever." It’s closing in on a quarter-million hits, and the comments are amazing. And I ain’t touchin’ it.

And I’m certainly not alone here. Lots of copyright owners turn a blind eye to "unauthorized" posts...

Several times a day someone sends me a YouTube link, usually of some old music video that’s brilliant, funny, or revealing, often all three at once. Does somebody own the copyrights to these things? Undoubtedly. Did they put them up themselves? Maybe, maybe not. And are they mad that their stuff’s on the internet? Probably not. They’re probably delighted.


So copyright, both in law and as a practical matter, is not as "obvious" or "simple" as it may appear.
***
And speaking of intellectual property gone awry, I think it's reprehensible that one company can "own" a patent on human genes and I was thrilled when the company Myriad lost a ruling over breast cancer-gene patents, a suit brought by the ACLU, plus the March of Dimes and a number of medical organizations.

ROG

5 comments:

Socks said...

Nice post on the subject! Ever since I worked in Paramount's legal dept., I've been pretty fascinated by copyrights. (I believe the attorneys went on to work in Viacom's intellectual property dept., after the buyout.) In Vegas, I was filing for copyrights of a little over two years' worth of titles. (Wonder what the authors would've thought of that!) In the beginning, I got pretty caught up in the Library of Congress' FAQs about copyrights and copyrighting. Truly the stuff of lawyer's dreams!

Socks said...

(ummm ... that's (lawyers' dreams")

Radikulman said...

Well Fair Use is a part of US copyright law. Look at my article on what YouTube has done this week that violates every bloggers rights to Fair Use.

http://www.blog.blacklogichosting.com/2010/04/hello-youtube-have-you-heard-about-fair-use/

Roger Owen Green said...

Yes, I know fair use is part of the copyright law, since I linked to it from copyright.gov

Arthur (AmeriNZ) said...

"Fair Use" is NOT a feature of other countries' copyright laws. For example, under New Zealand law, I can't claim "fair use" to include a clip of copyrighted music in my podcast, even if the purpose is clearly one of criticism, explanation, or other purpose allows in the USA

Copyright owners need to lighten up! They offer no legal way to reference their work within another work and, as a result, free expression is suppressed.

I release everything I do under Creative Commons license—not a perfect solution, but a helluva lot better than the ancient copyright laws we labour under!