Stairway to Heaven Copyright Trial Appeal

The battle over “Stairway to Heaven” will rage on for at least one more chapter as the copyright infringement case heads to a federal appeals court. Rolling Stone Magazine has the details.

At the crux of the “Stairway” lawsuit is the accusation that the IV classic copies a riff found on Spirit’s instrumental “Taurus,” which predates the 1971 single. In his appeal, Malifoy wrote that the jury did not find the two songs “substantially similar” because they were not permitted to hear the version of “Taurus” that Jimmy Page allegedly ripped off.

(via)

CBC, Copyright and Fair Dealing

When I happened upon the CBC’s “Reuse and Permissions” page, I clicked the link because I was curious how the nation’s publicly funded broadcasting company would feel if I tried to reuse the content that I helped pay for.

From the FAQ:

Q. I am a university student and have come across a video clip on your website that I am hoping to use in a presentation. Is it possible for me to use it?

A. Unfortunately, we can’t give permission for this type of use without charging a sizeable licensing fee. However, you are welcome to create a link to the cbc.ca page in your presentation, so your fellow students may view the CBC content.

They can’t give permission without a sizable licensing fee?! It seems they’re not actually interested in licensing their content either or perhaps they’d have some information regarding just how “sizable” a fee they mean. For some students, using a “link” to the CBC’s website is not possible if the presentation is going to be done at a school where the Internet is not available. Now, having said that, using the web browser to view their content IS making a copy! That’s how the Internet works, everything is a copy! So they’re giving permission to make a copy while at the same time trying to imply a restriction on ones right to change the format in which the copy exists (ie. only playing the content from their website).

Now for an organisation so reliant on tax payers’ funding, the CBC’s policy is in itself ridiculous, but if we take it a step further and consider what the Canadian Copyright Act states about students copying work for educational purposes, we find some rather revealing details (though I’m not a lawyer, this seems pretty simple to me).

In the 2004 landmark ruling by the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada the concept of fair dealing in Canada was clarified, in part, when the Court made the following general observation:

[I]t is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.

This brings up the question of what exactly is Fair Dealing? Well, again from the landmark Supreme Court of Canada case that establishes the bounds of fair dealing in Canadian copyright law CCH Canadian Ltd. v. Law Society of Upper Canada:

It is impossible to define what is “fair dealing”. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright.

In Canada, the six Fair Dealing exceptions are:

  1. The Purpose of the Dealing
  2. The Character of the Dealing
  3. The Amount of the Dealing
  4. Alternatives to the Dealing
  5. The Nature of the Work
  6. Effect of the Dealing on the Work

Though not all of these considerations will arise in every question of Fair Dealing, this list provides a useful analytical framework with which govern decisions of fairness.

Specifically, section 29.6 of the Canadian Copyright Act says:

“it is not an infringement of copyright for an educational institution or a person acting under its authority to

(a) make, at the time of its communication to the public by telecommunication, a single copy of a news program or a news commentary program, excluding documentaries, for the purposes of performing the copy for the students of the educational institution for educational or training purposes;

So, if you’re a student wanting to show a video clip of a news program or news commentary program, you don’t need the CBC’s permission to make a copy and you’re allowed to keep and show that copy for up to one year without paying royalties.

I think it’s disgraceful that CBC is so protective over their publicly funded content, however, the law does allow for the presentation of certain material for educational purposes in educational contexts. It’s too bad the CBC doesn’t realize this.

Pirates Dilemma

Matt Mason, author of The Pirate’s Dilemma: How Youth Culture Is Reinventing Capitalism (Amazon) and Jesse Alexander, producer of Heroes and Lost, are producing a new TV show called Pirates Dilemma. The following is a teaser showing how the show might look:

(via)

Letter to My MP

June 13th, 2008
To: Mr. Rick Casson
House of Commons
Parliament Buildings
Ottawa, Ontario K1A 0A6

CC: The Honourable Jim Prentice P.C, M.P.
5th floor, West Tower
C.D. Howe Building
235 Queen St.
Ottawa, Ontario K1A 0H5

CC: The Honourable Josée Verner, P.C., M.P.
Minister of Canadian Heritage
25 Eddy Street
Gatineau, Quebec K1A 0M5

Subject: Please Stand Against the New Copyright Bill

Dear Sir,

I am a constituent who has been following recent developments in Canadian copyright law. I’m concerned that the Copyright bill presented by the government on June 12th goes too far in outlawing the lawful use of copyrighted material, and does not take into account the needs of consumers and Canada’s creative community who are exploiting the potential of digital technology. I’m disappointed that this bill adopts an American approach to digital copyright laws, instead of crafting a Canadian approach.

Canada’s copyright laws need to advance Canada’s interests. This means copyright laws that respect ordinary consumer practises, such as unlocking cell phones and copying the contents of purchased CDs and DVDs for use in iPods (or other digital music players). The current bill outlaws these practises. This means copyright that facilitates the work of Canadian creators, such as documentary filmmakers, who instead find that this bill outlaws the use DVDs as source materials for their films. This means we find made-in-Canada solutions to the challenges of file-sharing, such as consideration of the Peer-to-Peer proposal of the Songwriters Association of Canada. Instead, this bill paves the road to importing the consumer file-sharing lawsuit strategy that has failed so spectacularly in the United States. Canada deserves better. WE DESERVE BETTER, and you can make a difference.

Please ensure that this bill really is made for Canadians by allowing all Canadian stakeholders a say in its final contents. That means meaningful consultation in the coming months, and opening up Canada’s copyright policy to more than just the special interests that lobbied behind the scenes for this law. As my MP, I urge you to represent my interests in the copyright debate.

Sincerely,

Jeff Milner

Check out Online Rights Canada’s new action alert, “Tell MPs What’s Wrong with the Prentice Bill” and use the site to send a message to your own Member of Parliament.

Here’s what their website says about it:

“After months of hesitation, Industry Minister Jim Prentice has finally revealed his re-write of Canada’s rules of copyright. Tell your MP just what you think of it.”

10113 people have used the copyrightforcanadians.ca website to take action. Add your voice today!

Say NO! to the Canadian DMCA

The Canadian government is about to bring down Canada’s version of the US Digital Millennium Copyright Act, and it promises to be the worst copyright law in the developed world. It will contain an “anti-circumvention” clause that prohibits breaking the locks off your music and movies in order to move them to new devices or watch them after the company that made them goes out of business — and it will follow the US’s disastrous lead with the DMCA in that there will be no exceptions to the ban on circumvention, not even for parody, fair dealing, time shifting, or other legal uses.

Basically, in the US, it is illegal to even ‘pick the locks’ of anything that is keeping you from accessing the content, EVEN IF YOU HAVE THE RIGHT TO DO SO.

In plain English? You can’t rip songs off YOUR CDs to play on YOUR iPod. The company who runs the DRM system goes out of business? Too bad. Want to unlock your cell phone to run on another network? Nope. You want to copy an eBook that is in the public domain? No way. You want to use a clip from a documentary DVD in your own commentary? Fat chance. You want to backup anything copyrighted that you bought? Think again.
The list goes on and on…

Larry Lessig on TED

This summer, while working at a camera/photography store in Lethbridge, one of the jobs I did was Photoshop work and printing photos.

One day a middle-aged woman came into the store carrying an old 8×10 of her deceased parents. She explained that the photo had been damaged when it fell off the wall and the glass protecting it, broke and cut into the image. She asked if we would be able to photoshop the damage out and make a new copy.

Before I could speak, the manager of the store pulled the image from my hand and inspected the photograph.

“Who took the photo?”

There was no stamp on the back and she didn’t know. She explained, “It was taken about 30 years ago by a photographer that their pastor hired to take family photos at their church”.

He told her due to copyright laws, he would not print her a new image. (Nevermind the illegally copied Photoshop program he was using to charge $45/hour to make other’s copies).

Should it be illegal to recover the woman’s photo? Common sense revolts at the idea.

But she never did get it fixed.

Update: I’ve since learned the manager has been “let go”.

See this great TED talk by Larry Lessig speaking about the shortcomings of our dusty, pre-digital intellectual property laws.

A Quick Review of Copyright

The other day I discovered a site hosting a modified version of my backmasking page. The version this site was hosting looked almost exactly like the version I had created except the links back to my website had been removed.

This morning I sent an email to the contact address listed asking them politely to remove it from their site. I haven’t heard back from them yet.

Shortly after I read the site’s own copyright notice:

Do not take [website name removed].com’s link out of any code found on [website name removed].com, if you do so you are breaking the law.

An interestingly strong position to take, considering that’s exactly what they did to me.

I also found it interesting that the site was using services from gocopyright.com. A site that claims for $59 they will register your online works with the United States Copyright Office.

(I am not a lawyer, so don’t take anything I say here as legal advice.)

If you’re worried about preserving your rights, you might be interested to know that copyright laws in Canada and the United States as they are now do not require the rights holder to register his or her works in order to hold the copyright. All you have to do is create a work, and presto—you own the copyright and you still have your $59!

As far as I can tell, the $59 is a waste of money for a service that claims, “Your copyright must be registered in order to take legal action against an act of infringement.” Though I am not a lawyer, I’d say this is not true. If you own the copyright, it stands to reason that you can take legal action regardless of registration.*

Independent of these issues, I’d caution anyone about using their service after reading their disclaimer that,

“You expressly agree to use this site at your own risk. The website content, forms, and material on our website are provided “as is”, without warranties of any kind either express or implied with regard to their legal effectiveness, adequacy, suitability or completeness.”

It sounds like they know it’s a superfluous service and don’t want to be caught without a legal leg to stand on, so they wrote one in.

As far as people out there copying my backmasking site goes, I prefer that they just paste a link to the site instead. Here’s an example of the code you could use:

<a href="http://jeffmilner.com/backmasking/>Jeff Milner's Backmasking Site</a>

*I suppose it should be noted that registration could be used as evidence that you are the original creator of the work, but it’s not the only way you could provide evidence.

Update: The website proprietor said he would take down the copied files, but had quite the gem of an explanation as to why he felt entitled to remove the links back to my site:

“Sorry about that, I will remove your content from my site as soon as possible. Note that it is not in my best interest to direct links to other sites unless you pay for advertising which I’m sure you won’t like to do.

Regards.”

Wow.

Creative Common Sense

Jason Scott wrote an astute post about the pros and cons of a creative commons liscense for people to consider.

Check it out.

One case that sticks out in my mind was this guy who had his stuff up on Opsound, totally claiming the license of CC-BY-SA, but also including “you may not make any changes to the work” in the description of his band. His music was pretty good, and I was considering using it, but that dissonant line got my attention. So I wrote him, and said “So are you licensing it Creative Commons, or is it copyrighted? Because you can’t have both those lines in there.” His response, somewhat crankily, was “No, it’s definitely CC licensed, but you can’t change it.” My ill-advised response was “Well, yes, yes I absolutely can.” Things went downhill from there.

It basically boils down to the importance of, not only reading but understanding, the small print.

The fact that I love this sort of stuff so much makes me wonder if I wouldn’t have been better off becoming an intellectual property lawyer.