Justin Levine's Techdirt Profile

Justin Levine

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  • Nov Sat, 2012 @ 01:06pm

    Am I Dreaming???

    I feel like many others here - I can't believe what I am actually reading (in a good sense).

    It's not only sensible in its broad strokes, but they even get on the right track in terms of specific policy solutions such as the increasing graduated scale for copyright renewal term fees. The only change is they should make is that the fee should be the greater of either a percentage of revenue that the copyrighted work generates or fixed amount fee which sustainability increases for each new copyright term (that way, the many creative works that don't generate revenue such as scientific papers, memos and historical documents will also fall into the public domain within a reasonable amount of time).

    I'm with Nina Paley here - if the House Republicans actually passed a bill based on these proposals, I'd switch back to being a Republican.

  • Aug Thu, 2012 @ 12:07pm

    Re: The authors here are simply wrong about a variety of their claims.

    Not to flog a dead horse over proving my point, but here is what the 9th Circuit federal appeals court itself said about fair use this week [ http://www.ca9.uscourts.gov/datastore/opinions/2012/08/14/10-56710.pdf ]:

    "In the years following the 1976 Act, courts have decided countless cases involving the fair use doctrine. Some commentators have criticized the factors, labeling them 'billowing white goo' or 'naught but a fairy tale,' echoing courts that threw up their hands because the doctrine is 'so flexible as virtually to defy definition.' Princeton Univ. Press v. Mich. Doc. Servs., Inc., 99 F.3d 1381, 1392 (6th Cir. 1996) (citation omitted). A leading treatise in this area notes that the statute provides ?no guidance as to the relative weight to be ascribed to each of the listed factors,? and, in the end, ?courts are left with almost complete discretion in determining whether any given factor is present in any particular use.? Nimmer on Copyright ? 13.05[A] (footnotes omitted).

    We acknowledge the porous nature of the factors but nonetheless recognize that we are obliged to make sense of the doctrine and its predicates."

    Again, the authors' conclusion that "fair use is no vaguer or unclear than other rights of free expression" is a pure falsehood as the 9th Circuit itself points out here.

  • Aug Thu, 2012 @ 11:34am

    "[F]air use is only occasionally litigated; this is particularly true now, since fair use is regarded with such favor by judges. Copyright holders with good lawyers understand that any greater record of the useability of fair use is not good for their side..."

    Try explaining that to the Defendant who lost in the SECOND federal appeals court decision involving fair use to come out this week alone...

    http://www.ca6.uscourts.gov/opinions.pdf/12a0267p-06.pdf

    "[F]air use is no vaguer or unclear than other rights of free expression. Like with questions of libel, indecency or obscenity, there are clear areas of comfort and safety, marginal or risky areas, and troublesome areas. Most people most of the time know where they are..."

    Each new published case proves just how wrong this analysis is. Page 4 in the latest case from the 6th Circuit (linked to above states that the Defendant's counsel (a very knowledgeable and respected attorney on the East Coast who has been practicing IP law for nearly 40 years) advised the Defendant that it "could publish the photograph as 'fair use' without the need for permission". All of the many IP attorneys I know would probably be split 50/50 on this question.

    Again - facing IP questions in the real world of actual litigation is very different than the conclusions drawn up by academics and industry groups.

  • Aug Thu, 2012 @ 09:24am

    The authors here are simply wrong about a variety of their claims.

    "First, fair use is only occasionally litigated; this is particularly true now, since fair use is regarded with such favor by judges..." "...[O]ne's First Amendment rights within copyright are exercised vigorously by fair use..." "...Copyright holders with good lawyers understand that any greater record of the useability of fair use is not good for their side..."

    Tell me more about these views after you read the latest decision from the 9th Circuit:

    http://www.ca9.uscourts.gov/datastore/opinions/2012/08/14/10-56710.pdf

    http://www.politico.com/blogs/under-the-radar/2012/08/court-mag-violated-copyright-by-printing-wedding-photos-132187.html

    This confirms that we need to study the "myths and realities" concerning the article in this post before we discuss the myths and realities of fair use in the real world.

  • Jun Thu, 2012 @ 02:19am

    Re: Re:

    What you are doing is mistaking influence with outright copying.
    A musician could be influenced by Jimi Hendrix, Kraftwerk, Beethoven and Miles Davis, plus many more. No artist is influenced by exactly the same combination of previous works, in exactly the same way and by the same amount.
    This inevitably results in randomness in influence and individual innovation.


    With all do respect, what you are doing is mistaking how the copyright law that Nina Paley is speaking out against actually operates.

    Copyright doesn't just prohibit "outright copying" as you put it, but it also prohibits the creation of what are known as "derivative works" which are very broadly defined. The prohibition against derivative works is in fact a prohibition of the very kind of "influence" that you claim to be in favor of.

    Let's take your own example of a musician being "influenced by Jimi Hendrix" for instance. Presumably, you are familiar with Hendrix's famous cover of the Star Spangled Banner which he played at Woodstock and elsewhere? Questions: Was Hendrix "outright copying" that song in your opinion? Or was he merely "influenced" by it as you put it? Or was it something else in-between those two characterizations?

    Fortunately for Hendrix, the Star Spangled Banner was in the public domain by the time he performed it. But that fact also goes to the heart of Paley's argument - recognizing that longer copyright terms (life + 70 years!!?) starve works out of the public domain and thus prevent artists from creating derivative works from them (which doesn't even deal with the question of "outright copying").

    Another question: If the original orchestration of the Star Spangled Banner remained in copyright in the 1960s due to a long copyright term under law, do you believe Jimi Hendrix would have had a fundamental right to perform his version of the song? Or do you believe that the Francis Scott Key estate (or other third party players or corporations with the rights to the tune) should have had the ability to prevent him from doing so? Wasn't he "copying" the song under your definition? He used all of the same notes within his version, right? Or was he merely "influenced" by it, as you use the term? If someone using Mickey Mouse in their independent film is "blatantly copying" in your view, then clearly Hendrix was "blatantly copying" Francis Scott Key and should be considered a moral reprobate in your (thankfully wrong) opinion.

    This is why many commenters here are calling you out on your ill-considered and blatantly false remarks that "all art is based on new ideas and innovation". If you would be so kind as to provide links to some of your own works, several of us would no doubt easily demonstrate that your "original" art could easily be characterized as a "derivative work" of an artist who came before you.

    The contours of copyright law and the human behaviors it legally prevents are far broader than you seem willing to admit. That is what Nina Paley is rebelling against. That is why she and her sympathizers are right, and why you are wrong.

  • Jun Sat, 2012 @ 05:12pm

    Myths and Realities about the myths and realities discussed here.

    You will find no stronger advocate than I for wanting to reclaim fair use - but I find many problems with the authors'a analysis here. They seem to leave the impression that standard practices within small niche social communities can compensate for (or are even more desirable than) a clearer set of principles from our appellate courts. I find this to be a huge falsehood. Behavioral agreements within communities (documentary filmmakers, poets, bloggers, etc.) has absolutely zero relevance when it comes down to a brass tax defense in court. What IS relevant are the four infinitely-malleable factors laid out in the fair use statute (17 USC 107) which allows judges to continue to rule by personal fiat on a case-by-case basis. The notion that a Documentary Filmmakers? Statement of Best Practices in Fair Use can take the place of a set of appellate court decisions on the subject is a nice fantasy that I wish were true - but it has no basis in reality and could inadvertently end up getting such filmmakers into trouble if they think its going to be a legitimate substitute for the usual legal analysis that courts engage in when deciding fair use cases.

    Such community practices may indicate a culture that is arising IN SPITE of the law - not as a SUBSTITUTE for it. To the extent that it may make overreaching copyright regimes simply unable to enforce its own dictates as practical matter, then I'm all in favor of it. But that is very different than what the authors seem to suggest here - that come 'community members' can get together and somehow decide on their own how the courts are going to interpret the contours of fair use.

    Other statements by the authors are simply incorrect. For instance, they don't seem to acknowledge the fact that courts (unfortunately) make a important distinction between 'parody' and 'satire' when considering copyright defenses. Presumably the authors are familiar with 'Dr. Seuss Enterprises v. Penguin Books'? Or Justice Kennedy's much discussed concurring opinion in 'Campbell v. Acuff-Rose Music'?

    As one who has litigated many libel cases, I can say with no uncertainty that the law of defamation is FAR more defined than that of fair use - precisely for the reason that the authors seem to be against cultivation: We have decades' worth of published appellate-level court opinions that have developed the law in this area and made the boundaries less fuzzy. The authors' conclusion that "fair use is no vaguer or unclear than other rights of free expression" is a pure falsehood.

    I am also at a loss to explain the authors' statement that fair use is only "occasionally litigated" because it is "regarded with such favor by judges". To begin with, the statement itself is contradictory since one could not possibly conclude that any legal matter that is only "occasionally litigated" could be described as being in "favor" by judges. Only a clear string of published legal opinions could demonstrate that - something which we clearly don't have now. (And for every successful fair use opinion the authors trot out, I'm confident that I could cite multiple counter examples which minimize the scope of fair use and which remain valid as legal precedent.) I have seen nothing to indicate that fair use is currently "in favor" by our courts. For decades, they have systematically chipped away at it - and I unfortunately see nothing to indicate a reversal of this trend. At the very least, I think the authors should provide some citations to back up their claims - not just provide conclusory statements as arguments.

    I have more issues with the post as well. But I will save them for another time and simply thank the authors for jump-starting a much needed discussion.

  • Jan Fri, 2012 @ 01:00pm

    Overthrowing the old cultural paradigms

    I'm beginning to think that the overall problem with copyright/remix/SOPA culture is largely a generational one. One generation that has now grown up communicating in a digital environment and those who haven't. Much like the shift with marijuana legalization, mixed-race marriage, attitudes on homosexuality, etc., we may have to simply wait for the older generation to die off before we can inherit a politically safe environment for a re-mix/file-sharing culture.

    I think appealing to reason won't work here. Their entire mindset is too fixed in the past. 30 years from now, will there be any Congressional candidate who can claim that they never downloaded a file from MegaUpload or similar 'cyber-locker' services? Never posted an infringing video to YouTube?

    Hopefully, the propaganda used by the old guard in the current information war will be looked upon with the same sense of bemusement as the 'Reefer Madness' film is with regards to the dangers of marijuana.

    Just like what every generation says about the one that came before it: 'They just don't get it.'

  • Jan Wed, 2012 @ 03:04pm

    Resist

    This decision has me so mad and depressed that I'm beginning to wonder if we should even bother continuing to hit our head against the wall with Congress and the Courts and just concentrate on nurturing cultural black-market ecosystems which are designed to ignore the law, make end runs around it and subvert copyright altogether.

    I am all for a strongly-enforced copyright regime which is geared towards maximizing both the creation and distribution of new works. But if forced into a binary choice between the current system and no copyright at all (and we ARE being forced into that choice by Congress and the Courts), then I will reluctantly have to side with the no copyright forces. As radical as it is, its still less radical than the status quo in terms of the goal of maximizing the distribution of new works.

    When combined with the SOPA outrage, this should be a Boston Tea Party moment (the 18th Century one - not the current incarnation). This should not be civil disobedience where we willingly offer up ourselves for punishment to make a point, but just actual disobedience where we put the onus on the government to try and forge a response to copyright infringement on such a massive scale that they will be forced to either create a totalitarian police state which brands its own people as a nation of 'thieves' for the sake of Big Content corporations, or accept an objective reality which treats infringement the same way that Barney Fife treats automobile speeding in terms of its enforcement.

    But in terms of productive copyright reform coming from either Congress or our legal system? I've given up. I'll let William Patry be the one to continue wasting his time living in that fantasy land.

    If Shakespeare's true identity is ever conclusively established, what are we supposed to do now when his heirs come forward, bribe Congress to once again extend the length of protection and place his writings back under copyright, and then have people forced to pay royalties or prevent people from performing his works altogether? We certainly can't rely on the Supreme Court to protect us from the scenario now.

  • Nov Thu, 2011 @ 10:52am

    Copyfraud is a very underreported issue. But here is another example...

    Similar copyfraud claim going on with a Phillip K. Dick story. Dick's estate is trying to claim that because a story was first published without his consent, it isn't in the public domain. Background here:

    http://www.courthousenews.com/2011/10/31/41045.htm

  • Oct Fri, 2011 @ 02:58pm

    Re:

    If you have ever tried to get a proper photograph of a painting, you will know that there is plenty of skill and work required to make it happen. It's not a simple thing.

    Agreed. But as others here have pointed out, that is irrelevant to copyright. Copyright only rewards 'originality' - not the 'amount of work' you put into making an exact copy of something, or how much 'skill' it takes to make an exact copy of something. Since it is an exact copy of the image, it is 'unoriginal' - even if you broke your back to get the lighting right in order to make it unoriginal.

    The Supreme Court has expressly rejected the 'sweat of the brow' theory that you mistakenly seem to think applies in copyright law. If that were not the case, then people could claim copyright over the White Pages simply because they put 'work' and 'skill' into making an exact copy of the listings already in that book.

    See Feist v. Rual for a more detailed discussion:

    http://en.wikipedia.org/wiki/Feist_v._Rural

  • Oct Thu, 2011 @ 10:14am

    Re: Re: Transcript of the Supreme Court's Golan v. Holder argument.

    Agreed that its bad precedent. Though if you study the Supreme Court closely, they use precedent very cynically - relying on it when it suits them and they want to validate their personal beliefs through some "objective" matrix, but ignoring it when it gets in the way of the result they want to achieve.

    The difference they can hang their hat on in this instance is that copyright has a direct Free Speech component that patented inventions don't. Therefore, it makes sense to treat patent and copyright differently in this context. As blatantly unfair as it is, putting an expired patent back into protection doesn't stifle speech, whereas putting public domain works back into copyright protection suppresses massive amounts of speech.

    That would be the argument I would make to distinguish the 1815 patent case here.

  • Oct Wed, 2011 @ 02:59pm

    Another amazing excert from the Golan v. Holder argument...

    From pg 39-40 in the transcript of oral arguments. I can only shake my head so much here.

    "CHIEF JUSTICE ROBERTS: What about Jimmy Hendrix, right? He has a distinctive rendition of the national anthem, and all of a -- assuming the national anthem is suddenly entitled to copyright protection that it wasn't before, he can't do that, right?...So he is just out of luck? And that's just one example of many, where you take existing works and you have a derivative work or something that is distinctive to you. So those people are just out of luck?

    GENERAL VERRILLI: ...the Copyright Clause already contains very significant accommodations of First Amendment interests. The idea/expression dichotomy, fair use; and -- and that is going to provide -- maybe -- maybe Jimmy Hendrix could claim fair use in that situation...."

  • Oct Wed, 2011 @ 02:57pm

    Excpert from Golan v. Holder argument

    Good lord! From pg. 37 of the transcript...

    "CHIEF JUSTICE ROBERTS: General, there is something at least at an intuitive level appealing about Mr. Falzone's First Amendment argument. One day I can perform Shostakovich; Congress does something, the next day I can't. Doesn't that present a serious First Amendment problem?

    GENERAL VERRILLI: I don't think so, Mr. Chief Justice..."

  • Oct Wed, 2011 @ 02:55pm

    Transcript of the Supreme Court's Golan v. Holder argument.

    Can be read here [in PDF]:

    http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-545.pdf

  • Sep Fri, 2011 @ 10:10am

    You do indeed get sued for being similar...and that's (part of) the problem.

    "A lot of things are similar. But you don?t get sued for being similar. It needs to be the same thing. Almost doesn?t count."

    I guess this attorney isn't very knowledgeable about the reality of today's overly restrictive copyright regime. George Harrison had to find out the hard way when we was successfully sued for copyright infringement over claims that "My Sweet Lord" was "similar" to "He's So Fine" (popularized by the Chiffons).

    This is a case that is taught in many copyright classes in law school.

    Details here:

    http://cip.law.ucla.edu/cases/1970-1979/Pages/brightharrisongs.aspx

    http://www.benedict.com/Audio/harrison/harrison.aspx

  • Aug Thu, 2011 @ 11:32am

    Patent MAD

    Given the fact that the Supreme Court's Bilski decision has not issued a bright-line rule which would close the book entirely on business method patents, and given the fact that the Patent Office is still in the habit of granting ridiculously broad patents (or at least not tossing them immediately when faced with them), perhaps the solution is to fight fire with fire.

    A modest proposal: Have somebody "patent" a business method for the "efficient collection of patent fees" (based upon the business model that trolls currently use). Describe it all in the patent application (i.e., bundling broad patents together from diverse sources, creating shell corporations, writing demand letters for settlement, collecting money from the company which allegedly "infringed", etc.). Then license non-exlcusive rights to this patent to any legitimate (non-patent troll) business who wants to use it for a nominal sum of one-cent.

    Once you have done that and have a patent monopoly granted on this business method, any time a patent troll tries to sue a legitimate company for infringement, the legitimate company would not only have its traditional set of defenses, but could then counter-sue the troll for infringing its patent on the trolling business method (and demand a settlement sum equal to or greater than the sum the troll is demanding).

    In other words, the very act of patent trolling would then become an act of patent infringement.

    In the absence of Congressional action to fix this problem, setting up an automatic system of Mutually Assured Destruction seems like an alternative that must be considered.

    Anyone want to help get this started? Perhaps we could use a Kickstarter.com campaign to raise money for the attorney and filing fees.

  • Jul Wed, 2011 @ 11:57am

    Re:

    I'm not sure why, but you always gloss over the fact that non-literal copying can be infringing, that is, the test is whether they are "substantially similar."

    Nobody disputes that the current state of the law allows for liability over "substantially similar" items, and that such items can be "infringing" under the current state of the law.

    But (leaving aside the fact that none of the photos in this instance are "substantially" similar in any way) what Mike and I argue is that if you are going to have liability for "substantially similar" works, then its hypocritical for the legal establishment to claim that copyright doesn't protect "ideas". That is a false claim. It most certainly does protect "ideas" beyond their concrete expression. For the legal profession to state otherwise is a lie - pure and simple.

    The very definition of "copying" implies a literal cloned reproduction of an item. There is no such thing as a "substantially similar" copy. You can certainly have a substantially similar "work" or "idea". But if X is "substantially similar" to Y, then it is, by definition, not a "copy".

    The entire notion of copyright law protecting "derivative works" is completely inconsistent with the limitations that the social compromise over copyright was meant to embody. It also clearly hinders the creation of new works, rather than promotes them - which is what the very justification of the copyright clause is premised on.

  • Jul Sat, 2011 @ 10:53am

    Re: Re: Re: Re: Re: Re: Re:

    In the monkey case, almost all of the work was done by the photographer, and the money only triggered the shutter.

    100% wrong. The only "work" done in this case was leaving a camera out so that a monkey could unexpectedly take it and make photographs with it.

    Would you feel different if the photographer had set up an automated trigger under the monkey's feet?

    If the human photographer made deliberate artistic choices in terms of filters, lenses, f-stop, film stock (or digital equivalents), framing, etc., then yes. Simply having a force of nature or random event be the deliberately intended triggering device for the shutter would not divest the human from "authorship" in that scenario - but that isn't the case in this instance, and you know as such.

    We have a fundamental disagreement on what constitutes "authorship" here. You seem to be suggesting that because the human's camera was used, the human must therefore be the "author" (which contradicts my "camera theft" scenario which you already conceded to). I hold (as does the actual law) that deliberate creative choices must be guided by human intent in order for there to be "authorship" under copyright law. There mere decision to be in proximity with monkeys with a camera is not enough of a creative choice to convey "authorship" to a human when monkeys are the ones making the "creative choices" in this instance.

    If you create an abstract work of art by having a dog randomly track paint on to your canvas, you could claim copyright since you deliberately chose the color and texture of the paint for the process, the size of the canvas, the type of animal to make the tracks, etc. But that is very different than fixing your garage one day, seeing a dog spill over your can of paint and track it through your house floor and then trying to claim copyright on the random patterns. No copyright would be available in that instance since there is no human authorship. They key here is how the law could plausibly interpret the concept of ?authorship?.

    It may be a silly distinction which differentiates these two examples, but then there are countless aspects of our current copyright laws which are entirely silly.

    The fact that UK law makes reference to both "creators" and "unknown" authors is irrelevant, since it assumes that all such "creators" and "unknown" authors must be human. Would you not agree? If you don't agree, then do we give copyright to a volcano whose lava flows create interesting rock formations?

    Even if an image was created entirely through human processes without any deliberate human "creativity" to guide it, it may still be uncopyrighted - such as the instance of a fixed-mounted security camera recording 24/7 which happens to capture a dramatic event. (Unless of course you'd also like to lecture Suffolk University Law Professor Stephen M. McJohn at tell him that he's wrong about copyright law too. You can read his scholarship on copyright which contains these conclusions here: http://books.google.com/books?id=Gq9VbEQnxaQC&lpg=PA20&pg=PA20#v=onepage&q&f=false )

    So sorry, even though you have now conceded my point about the "stolen camera" scenario, you now try to deny the facts in this case now that you have lost on the law. But the way you now characterize the facts is equally wrong. The human in this instance had his camera stolen by monkeys who managed to take photos with it. He did not purposefully set up his camera with pre-set conditions on the assumption that monkeys would take it and trigger the shutter mechanism in order to create a humanly-guided picture.

    You are still 100% wrong. You lost by arguing the law. You tries to change the subject by arguing the facts - and you've still lost. Now you will try to squirm out of this by changing the subject again no doubt (like pointing to the fact that copyright allows for "unknown" authors - even though it is clear that such "unknown" authors must still be human).

  • Jul Fri, 2011 @ 04:30pm

    Re: Re: Re: Re: Re:

    Justin, the only thing they would have to show is that they have a copyright on the image issued in the UK, and that is a simple as saying "my camera shot the image". The burden of proof would be to show that they do not have copyright, which is a pretty high hurdle.

    100% wrong.

    If I steal your camera from out of your hands, run off and use it to shoot an Ensel Adams-quality photo, you can prosecute me for theft of the physical camera and recover the actual film/digital card containing the image I shot, but you would NOT own the copyright on the photo I created. You could assert ownership over the single physical copy of the photo I created inside your camera, but you could NOT assert ownership over the copyright to it.

    To claim copyright privileges in the UK, you must claim "authorship". The fact that your camera was involved does not make you the "author" of the photo that I took with it. So it is irrelevant that "your camera shot the image".

    Again, one must first prove the existence of a valid copyright before forcing the user of the work to rebut the proof with further evidence showing that it either fell in to the public domain or that the affirmative defense of fair use applies.

    This is true both in the U.S. and the U.K. Your claims about the law in this instance are simply false and people who choose to believe you are simply deluding themselves based on their own ideological biases on how they wish the world would work.

  • Jul Fri, 2011 @ 11:46am

    Re: Re: Re: Re: Saying it was an "accident."

    Probably more accurately would be to compare this to the copyright on images taken at a wedding on the disposable cameras that some folks leave on the tables. I would assume the picture taker has no assumption of copyright ownership in those cases.

    Your assumption is 100% incorrect. Copyright law is clear that the picture taker would absolutely retain copyright in the image in this instance - absent an express agreement that they are taking the photo as part of a "work-for-hire" arrangement.

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