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Min's Blog

What do the copyright fights mean to us?

December 18th, 2009 · 13 Comments

I already talked about the Shepard Fairey case, the Irina controversy, Dr. Seuss v. Dr. Juice lawsuit, the “Prince” incidence and Youtube issues in my blog posts, but what do these cases mean to us and what impact do they have? With the invention of new technologies, such as Youtube, Facebook and p2p filing sharing software, one’s work becomes very to be disseminated widely within a short period of time; furthermore, the copies are impossible to be eradicated as they will linger for an extended period of time. With the development of technology, copyright issues are not only limited to texts, but also spread to every arena, such as music and fashion industry. Authors and artists can feel the danger and threat of the world nowadays, so they intuitively tighten control over their intellectual property. It is unfair for someone to steal their work on which they put so much effort.

Yet while they exert greater control over their intellectual property, they also built a barrier around themselves and subconsciously impede the intellectual exchange with the rest of the world. Because of the threat they feel, they are likely to become too paranoid about others’ attempts to borrow their concepts to discern the purposes of others’ usage. Some of them are  for creative purposes and for the greater good of the society. People’s opinions are made from reading others’ work, so without borrowing others’ work, critical thinking will be greatly deterred; people also get inspiration from others’ ideas and create their own, so without borrowing others’ ideas, creativity and intellectual stimulation will diminish. The government recognizes the need to protect the intellectuals’ rights so that they will not be discouraged from publicly expressing their ideas and also acknowledges the importance of the vitality of intellectual and cultural exchange, hence the copyright law with four “fair use” clauses.

Yet as  a lot of copyright infringing cases are fairly complicated, sometimes the four fair use guideline contradict each other. The court needs to judge case by case and weigh each guideline against each other, and as a result the judgement on how much weight to put on each one becomes subjective. Therefore, generally speaking, California’s district court is relatively lenient toward internet companies compared to New York’s, as the prosperity of the IT industry (symbolized by the Silicon Valley) might bend their preference; same rules apply to New York, as it is likely to favor the big, traditional companies. Viacom is playing smart as it sues Youtube in New York, as Youtube might have been won the case a long time ago if the case were processed in California. Therefore, the term “fairness” can get ambiguous sometimes.

Until the government comes up with better solutions, we need to be extra careful about including others’s work in their own (much like the way we freshman cite scholarly sources for Expos). One common misunderstanding is that even if you acknowledge the original author or artist by putting that person’s name down, or put a disclaimer notice, you can still be found liable for copyright infringement. Acknowledging the copyright owner may shield you from accusation of plagiarism, but not from copyright infringement. A disclaimer notice will come into use only when the court is having difficulty deciding fair use or not: its presence may help tilt the court’s decision toward the favorable side; it’s useless, however, if the court has strong arguments weighing against you. As “being careful” on the users’ side seems to be the best solution for now, I really worry about the chilling effect brought by the intense copyright battles. Maybe there are fewer interesting parodies, fewer creative designer dresses and fewer hilarious Youtube videos. I know that my life will not be that colorful if this is the case.

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The legality of Youtube and the flaws of its notice and takedown system

December 17th, 2009 · 6 Comments

Since I mentioned the “fight” between artists and Youtube in the last post, I want to take this opportunity to talk about the legality of Youtube. Since its creation, Youtube has been under fire from record labels, television and film producers, etc for showing copyrighted content. The fact that anyone can upload videos and anyone can watch them makes Youtube the perfect place to share copyrighted content, such as music videos, live performances and movies. The record companies, film producers and artist, etc thus worry about the impact it will have on their market as everyone can just watch their work for free.

One representative case is the pending case against Viacom, which filed a copyright infringement lawsuit on March 13, 2007  in the Southern District of New York demanding as much as $1 billion. Nevertheless, Youtube has very strong reasons (as a frequent Youtube user myself, I enjoy the expediency it brings and maybe biased on this issue). Youtube is a platform on which its users can upload videos, not a website that creates its own videos, so it is acting as a passive intermediary. It’s an innovative technology that everyone can access to exchange ideas, and a large fraction of the videos are purely self-made and innocuous. I think that Youtube should not be held responsible for what its users put because: 1. it does not know what the users upload. 2. it’s not feasible to “censor” every video, as it will be enormously time and money consuming. 3. it’s just an intermediary, and does not have the social responsibility to ensure the copyright owners’ interest. These issues are recognized and acknowledged by the DMCA(Digital Millennium Copyright Act), which limits the liability that internet intermediaries have to take when their users commit copyright infringement by uploading copyrighted work.  The court has the reputation to favor internet companies in a effort to preserve and propel creativity in the society, and it ruled that Viacom cannot seek punitive damages against Youtube; however, statutory damages remain unresolved. In order to eventually win this “marathon” case, Youtube needs to prove that it fulfills  the “safe harbor” provisions charted in DMCA. These provisions are not the emphasis here, since I am more interested about how the law tries to curb copyright infringement on websites like Youtube, as it is the ultimate goal.

The DMCA mandates Youtube to implement the notice and takedown system. It’s a system in which the copyright owners need to notice service providers, in this case Youtube, about copyright infringing activities, and Youtube has to to expeditiously remove the videos followed by sending the users notifications. Youtube’s immediate removal of videos of after Prince filed a request (even though it’s unreasonable like I said before), shows that it has an effective takedown system. It is not uncommon to see red tagline saying that the video is no longer available due to copyright issues, in place of the original video. In addition, Youtube creates a page informing users what kind of work does not infringe copyright.

Youtube has made good moves to accommodate the copyright owners’ requests, but is this notice and take-down system mandated by law really that effective? A large number of videos are uploaded around the world everyday, so it will take the copyright owners a lot of time and effort to search for potentially infringing materials. They need to wait for the “criminal” to jump out. According to Section 512(c)(3)(A)(iv) of the DMCA, sufficient information to identify the copyrighted works is needed in order to have a video removed. But how “sufficient” should that be? The wording of the law is very broad and elastic, which may decrease the accuracy of those notices. Most importantly, this system will have a chilling effect on its users. The users will be discouraged from uploading their materials in fear of getting implicated in a lawsuit. As a large number of common users do not know what counts as fair use, they will be deterred from uploading videos that are in fact not infringing.

There is also a technical flaw to the system. Ironically, I found a video on Youtube titled “How to get around copyright issues on Youtube!!” Even if Youtube (maybe they already did) find out about the video, they cannot take it down, as it is self-made and did not use any copyrighted work:

The guy (who unfortunately swears quite a lot) tried on the video he uploaded that was already made unavailable at some record label’s request. He clicked on “resolve copyright”, and typed “I am in no way associated with the content of this video, and in no form am I trying to take credit for the content shown” into the dispute claim form, and then BANG! he can watch his “lost” video live. By clicking several buttons and copy-and-paste, he is able to retrieve blocked content.

In short, my take on the whole Youtube issue is that it should not be responsible for the content its users upload, and that the notice and take-down system required by DMCA has many drawbacks need to be fixed.

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An Interesting Case: Prince, Radiohead & Youtube

December 16th, 2009 · 2 Comments

The copyright controversy of Youtube is old news, yet this case is “refreshing” to see: the one who requested to remove the videos from Youtube was not the copyright owner. Prince performed Radiohead’s “Creep” at the Coachella Valley Music and Arts Festival in Indio, California. After the performance, he requested to remove the videos shot by the fans, and left a message saying that the record company NPG Records removed the clips and claiming copyright violation. The song’s original artist, Radiohead, found it “hilarious” as even they could not see Princes’ rendition of their own song. According to the Huffington Post, Thom Yorke, Radiohead’s lead singer and principal songwriter, expressed an opposite opinion to Prince’s, “Well, tell him to unblock it. It’s our … song.” Digital ownership remains as a hot topic, and Youtube’s involvement in the controversies is inescapable.

I searched on Youtube for the live version of Prince’s rendition of the song “Creep” and was surprised to find one that survived the “purge”. The concert took place on April 26, 2009, and the video was posed on June 3, 2009, so I speculate that the user uploaded it after the take-down movement died down. Anyways, here is the URL:

This is quite an interesting twist in digital ownership, as it is the Radiohead who could rightfully request Youtube to take down infringing videos, not someone who performs their song and holds no ownership. I don’t think that just because the rendition of someone else’s song is unique the performer can claim the copyright. Under the Title 17, U.S. Code, copyright holders are defined as “authors of ‘original works of authorship'”. Prince had to personally ask for Radiohead’s permission before performing this song to the public, or else he will face lawsuits himself. Thus, his action was unreasonable. What makes this case funny is that Radiohead and Prince hold opposite views on the issue copyright. Radiohead famously released their album with optional digital pricing and opened a channel on Youtube. Why should Prince care about the copyright if the original artist does not even mind?

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Reasons to Love New York: The Irina Controversy in Project Runway

December 16th, 2009 · 10 Comments

My roommate Janet is OBSESSED with the show Project Runway and follows the modeling world very closely. One day she was enthusiastically talking to me about the latest episode, with which I unfortunately do not have much fascination; but she mentioned something that immediately caught my interest: some potential winner of the season is in a controversy involving copyright infringement. I snapped my finger–this is going to be the topic of my third post here!

After I did some research on this case, I learnt that Irina Shabayeva, one of the competing  fashion designers on Project Runway, got herself into copyright infringement controversy twice. The first time, she put the Coney Island image on her T-shirt and was told by the New York Magazine that the image was trademarked. She had to back out since the magazine has the copyright. Here are the trademarked image and her T-shirt design:


Her design does differ from the original, trademarked Coney Island image. The original is a photograph, whereas Irina’s is a piece of art. This is similar to the Shepard Fairey case that I talked about in the first post, yet there is a big difference. Shepard Fairey merely used the outline of the photograph and filled it with broad, bright strokes of color, so that his image looks so different from the original one that it can count as “transformative”. In this case, however, Irina just “transcribed” the trademarked image into art and added some background. The two images look essentially the same, and her work does not seek to convey a certain message. She did add a caption, and by zooming in multiple times on that image, I found that she misspelled “Coney” as “Conney”. Later I found that other commenters also pointed out this interesting fact.

The second controversy arose as she copied the whole chunk of New York Magazine’s (again?) article “Reasons to Love New York” on her new shirt.

Irina 1

After pressing Ctrl + a couple of times to zoom in, I can finally make out some sentences on her shirt:

“Because people will still do crazy things to live here.”

“Because just when you take the Empire State Building for granted, it seduces you again.”

Copying an excerpt from  a novel for book review is perfectly acceptable, but copying the entirety of a copyrighted article without first obtaining permission is illegal. According to the third guideline, determination of fair use should take into account “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” In this case, the designer blatantly violates this guideline as she directly copies the whole thing onto her shirt.

The only thing that differentiates it from a “regular” copyright infringement is the medium: instead of copying the whole thing into a book, she put it on the shirt. Regardless, she did not change anything–she did not criticize or ridicule the content or New York Magazine, and she just took it.

The nature of her work is undoubtedly commercial, as she will sell them for profits once she wins the contest and the producers agree to manufacture them. This blatantly breaches the copyright holders’ interest–although the fashionable clothes can sell for a high price, they do not get a single penny out of it.

In addition, the article “Reasons to Love New York”  primarily includes the author’s own original opinion, not factual account of New York; thus, the designer’s work does not satisfy the second requirement for fair use: the nature of the copyrighted work.

As the definition of “transformative use” is the most blurry among the four guidelines that the federal law charted out, many people are either too confused about the legality of their work or just try to pass off as fair use.  Sometimes, the line can get really fuzzy, so the court needs to judge case by case.

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Satire or Parody? Dr.Seuss Enterprises v. Penguin Books USA

December 16th, 2009 · 20 Comments

The book “The Cat NOT in th Hat! A Parody by Dr. Juice” was indicted as copyright infringement for infringing the original work, “The Cat in the Hat by Dr. Seuss”. The infringing work mimicked the original author’s style and gave a poetic rendition of facts of the O.J Simpson murder case. The defendant claimed that it was a parody, and that it was of transformative nature. The Ninth Circuit court judge O’Scannlain, however, found the defendant liable for infringement for merely satirizing the O.J Simpson case itself and not the original book, and for “borrowing” the image of the distinctive red and white striped stove-pipe hat.  The result of this case is significant as it clarifies the difference between satire and parody and the extent to which a derivative work has to be transformative in order to be considered as fair use.  Bearing in mind the four guidelines charted by the federal law that I outlined in the first post, I am going to explore how the judge reached the decision and whether this case should be resolved in this way.

Theodore Geisel, under the pseudonym of Dr. Seuss, created this “the Cat in the Hat” children’s book series. He aimed to enhance elementary school literacy by  using rhymed lines and simple words, and his books have been popular since then. The book is also mainly remembered by its main character: the tall, mischievous cat that wears a tall, red and white striped hat and a bow tie, and carries an umbrella. Part of the dispute is around the “borrowing” of this classic image. Let’s compare the covers of the two books:

the original workThe disputed work

On the over of the disputed work, O.J Simpson is put into the tall, striped hat. Instead of wearing a bow tie, however, he is wearing a long tie; instead of carrying an innocent umbrella, he is holding a pair of blood-dripping gloves. The word “NOT” is all capital letters and bolded, signaling its distinction from the original work. The author also chose a pseudonym that rhymes with “Seuss” in honor of the book’s rhymed poetic lines, indicating that it has “juicy” content. So let us take a look at its content to see if it’s really a “parody” as the author claims, or a satire as the court determined. The definition of “transformative use”, which is one of the four guidelines, is at the center of the whole dispute.

The disputed work recounts the trial from O.J Simpson’s perspective: “A man this famous/Never hires/Lawyers like/Jacoby Meyers/When you’re accused of a killing scheme/You need to build a real Dream Team” and “One knife?/Two knife?/Red knife/Dead wife.” The acceptable tranformative uses include but not limited to political commentaries, critical reviews or parody that ridicule the original author or work. Book reviews can use passages from the original work, as it gives a critical evaluation of the book and the author, thus stimulating intellectual exchange. Political commentaries enhance freedom of speech, as people don’t need to worry about being sued for copyright infringement while commenting on politicians’ work. All of these have one thing in common: they express their own opinions on the original work or the  author. Yet in this “the Cat Not in the Hat” uses Dr.Seuss’s style, which is famous for its rhymed and easy-to-understand lines, to ridicule O.J Simpson. “Dr.Juice” satirizes his book’s main character instead of the original work or author. So the “parody” becomes mimicking the other’s style to ridicule someone who is unrelated to the original work. This is not parody. This is satire.

The second most important factor that matters here is whether it harms the original work’s potential market. Dr. Seuss’s work have occupied a large market share ever since they first greeted the market. As we have seen before, the disputed work uses the symbolic and distinctive tall,  striped hat on the cover, and assumes the pseudonym “Dr. Juice” that rhymes with “Dr. Seuss”. Most importantly, it copies the original author’s style. By doing these, it gives the readers an illusion that the two books are similar and that the Dr. Seuss Enterprises have authorized that author to do so. Although I doubt that the book can have big impact on the original work’ market, since the book is in fact interesting and does have some entertainment values, it will usurp some readership away from the firm base of the original work.

And of course, Dr. Juice got the book published. It’s for commercial use.

In summary, I agree and satisfy with the court’s decision that “the Cat NOT in the Hat” infringes copyright. This case gives us a clear example of what constitutes “fair use” and of the difference between a parody and a satire. It warns people about the content they are ridiculing: it’s okay to satirize the original work or author, but merely ridiculing other unrelated stuff is a big no-no. Furthermore, it deters potential authors who want to use others’ styles but still want to squeeze into the “transformative use” slot.

Dr. Juice got to taste the “juice” of his own work.

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Introduction to Fair Use and Copyright Issues

November 30th, 2009 · 6 Comments

Hi everyone!

I am Min and currently a freshman in Harvard. I set up this blog for my freshman seminar’s final project and this is my first post. As copyright issues can get really complicated and confusing and people get paranoid about their intellectual property nowadays, I am going to examine various copyright infringement issues that involve different media within the context of the four factors to discuss if they should belong to the fair use category.

Copyright issues are not just limited to published print work: they extend to a wide range of areas, such as artwork, software and music, which I will talk about in the future posts. According the official definition of copyright in U.S Code title 17, copyright is “a form of protection proved by the laws of the United States to the authors of  ‘original works of authorship'”.  The owner of copyright is given the exclusive right to reproduce, prepare derivative works, distribute, perform and perform their works. Yet as the technology evolves daily, the definition of the exclusive rights get fuzzy and copyright issues have gone beyond their traditional definitions.  Sometimes it can also get political sensitive. Shepard Fairey’s popular portrait of Obama caused a lot of controversy for using Obama’s image from the AP press without permission. Shepard used a photograph taken by a AP press journalist in which Obama is looking up and turned it into a piece of art with broad strokes of colors that conveys the message of hope and optimism. Its ensued huge popularity among the voters might have contributed to Obama’s win in the 2008 election. Anticipating that the AP press would sue him, Fairey took the preemptive action by suing the AP press first. There are four guidelines to determine if his use is fair use:

1. The purpose and character of the use: is it for commercial use or for non-profit educational purposes?

2. The nature of the copyrighted work: is it transformative enough?

3. The amount and substantiality of the portion used from the copyrighted work.

4. The effect on the potential market: does it harm the market for the copyrighted work?

This case gives a new definition for fair use as it raises the crucial question: how creative does the work have to be in order to be considered fair use? The artist argues that his work is tranformative as he only used the outline of Obama from the original photograph and it doesn’t affect the photo’s potential market. The legal battle is still going on right now, but I will not go into much details about this case here, as it is well covered by the media. Instead, I will explore copyright infringement cases that have less coverage base on the aforementioned four guidelines. I will also discuss whether use of disclaimer notice and acknowledgement of sources can prevent users from infringement liabilities. Lastly, I am going to examine how the cases will affect the creativity of which we Americans are so proud.

Blog is an ideal platform for exchanging ideas. Thank you very much for coming to my blog, and I will appreciate it if you leave constructive comments to express your own opinion and tell me which part you agree/disagree with me.

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