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Hatcher examines the workings of the American anime industry, paying the most attention to the history and physical process of fansubbing. Fansubbing is the process by which fans take Japanese anime (taped from broadcast television or DVD/home video), translate it and edit the video to include their own subtitles. Fansubs used to be distributed on VHS either in stores or among fan clubs, but are now almost exclusively found online. Hatcher suggests that the anime industry, though it has unquestionably benefited from fansubbing and other forms of high-level fan involvement, is now "held hostage by the internet and their otaku-consumers." By now professional licensing and localization companies can do much of their own advertising and market research due to the growth and age of the domestic marketplace; yet such companies know that to crack down on the core loyal fans will almost certainly result in a huge backlash from those on whom they rely most. In contrast to common internet "pirates," fansubbing groups commit infringing acts in the open (as publicized on websites or individual named in credits attached to their work) and are confident in the moral high ground of their actions (if a work is not yet licensed in America, it is seen as "perfectly legal" to make it available in fansubbed form, for example-despite international copyright laws); the common conception of "anime fair use" makes many technically illegal uses practically immune to legal retaliation
The almost forced acceptance of the fan use of anime in America, in order to maintain loyalty and relevancy among fanbase, makes anime music videos relatively easy to allow for domestic copyright holders. A lawsuit that attacks a now established tradition within the community would alienate much of a company's fanbase, driving them to other sources-including illegal ones if nothing else is available. Given the companies' general tolerance of (or lack of legal action against) the availability of full episodes or movies online, music videos are a much easier sell as "advertisements" for their products as opposed to replacements or illegal derivative works. And given the industry's heavy stake in the convention scene, it is clear that the community aspect of anime fandom must be maintained and courted in order to stay viable.
Perfect 10 v. Google, Inc. Order by United States District Court of California. February 2006.
In August 2005, Perfect 10 sued Google and Amazon for displaying thumb nail images. Perfect 10, an adult photography company, makes money by selling rights to copyrighted material. Perfect 10 sought an injunction and compensation from Google on the grounds that Google was illegally displaying thumbnail images of copyrighted Perfect 10 photos and linking to third party sites that further illegally host copyrighted materials. Google asserts that it does not infringe directly because it does not create the image that the image search pulls up and displays.
The court issued a preliminary injunction ruling that the thumbnail images from a Google image search did constitute copyright infringement, but the links provided to the full images did not. Google admitted that it created and stored the thumbnail images on its own servers. Thus, as to the thumbnails, Google distributed infringing copies of Perfect 10’s images. The links to the full size photographs do not involve any creation or dissemination even though there is a local browser caching. This local browser caching constitutes fair use. The court found that the use of the thumbnails was not fair use since Google made money from their creation and the thumbnails were not transformative because P10 also licenses thumbnail images. Thus, users could circumvent P10’s licenses by downloading the free thumbnails. The Court did note that Google does “provide great value to the public” as a search engine, stating that “search engines have become essential sources of vital information for individuals, government, non-profits and businesses….” Ultimately, Google’s thumbnail images did economically harm the value of the P10 images. Thus, the Court enjoined Google from further dissemination of the thumbnail images. In the case of AFP, Google must clearly not host and serve the image. However, the act of organizing the web and making news more readily available to users, perhaps even with leads and headlines seems reasonable.
Belgian Court Order in Copiepresse Litigation in Belgium. 8 September, 2006.
In September 2006, a Belgian Court ordered in response to a suit for copyright infringement brought by Belgium copyright firm Copiepresse that Google had no right to publish online properties represented by Copiepresse. Copiepresse based its suit on the Belgium copyright laws of 1994 and 2005 and the database law of 1998. Google did not appear at the hearing. Further proceedings were scheduled for a later date.
Google News, according to the Belgiam Court, receives search terms from users and returns automated results that ignore whether or not the news item returned is protected by copyright. As a result, the Belgium Court treated Google News as providing news content, not acting merely as a search engine. The Court held that Google News’s use of the copyrighted materials is illegal under the copyright law and database law. Moreover, Google’s caching is reprehensible and literally causing news agencies to “lose control of their web sites and their contents.” In caching websites, according to the Court, Google leverages its massive infrastructure to essentially create a local copy of the Internet. Consequently, if a newspaper publisher pulls an article off the Internet or charges for access to article archives, Google News users might still be able to see the article free of charge through a cached link. The caching process evades the newspaper publisher’s right to control its copyrighted materials.
Ultimately the Court ruled that Google News caused great financial loss to Copiepresse and would cause great harm to news services across Europe. The Court ordered Google to withdraw the cached articles, not to reference any of the five entities Copiepresse represented at all, to post the Court Order on Google Belgium and Google Belgium News, and that if Google did not comply with the Court Order to incur damages of $1 million euros a day.
While this Order addresses the effect of Google News under Belgium law, the case does not address United States copyright law raised in the AFP litigation. Fundamentally, though, this decision and lawsuit raises the question of whether Google News properly should be viewed as a search engine that organizes news or a source of news and whether Google News may be legitimately lawful under the law of one country but not under the law of another country.
**Update: Google appears headed to a settlement with Copiepresse. Neither side has provided the financial details of the agreement. On November 28, the Copiepresse secretary general stated, "The Internet is not the Wild West…We want to be part of Google, but not without control over our content.'' For its part, Google commented that without Copiepresse content, their Belgian news coverage was lacking and insufficient.
Call#: Van Pelt Library HM851 .G65 2006
Despite the predictions that the Internet would be tool of consensus for the world’s countries, applicable law continue to vary from nation to nation, luckily without impeding the growth of the Internet. Internet traffic, specifically ecommerce and media continue to thrive despite the application of local laws (148). Content providers have adapted to the wants and needs of local users across a variety of cultures and continents (149). There is no concept of universal free speech on the internet – what one country may consider as blasphemy might be the most treasured item of another country (150).
More relevantly, Goldsmith and Wu discuss how a court ruling in one country can be enforced in and intersect with the laws of another country. Using the example of Gutnick v. Dow Jones, in which business man Joseph Gutnick sued Baron’s online magazine, a subsidiary of Dow Jones, for defamation in an Australian court, the authors demonstrate that local law can coexist with the international scope of the Internet. While Gutnick won its defamation lawsuit against Dow Jones in Australia, it did not stop Dow Jones from continuing to have an Internet presence. The decision is not unlike any other decision that impacts a “multinational” business (157). Large corporations that have financial interests across the world like Dow Jones, Google and Yahoo! must be ready to defend their online content and business against the laws of any jurisdiction.
The Internet is not free of regulation just because it does not have the physical tentacles that other aspects of multinational companies do. For example, by operating Google.be and Google.fr, Google has a financial interest and presence in Belgium and France. They must be prepared to either pull their content out of those countries or comply with the laws of these jurisdictions, even if it undermines principles of American law. It is simply the cost of doing business. Smaller companies who have an Internet presence that may reach these same countries but who have no financial assets there will be in a different situation. They will need only to comply with the law of the country where their assets and physical presence can be found. Thus, the copyright law that applies on the Internet is not likely to be uniform but is more likely to reflect the public policies and interests of the local jurisdiction deciding the copyright question.
In this Japanese court decision, Spec Computer is sued (this is the appeal) by game manufacturer Konami for copyright infringement. Spec Computer loses and is forced to pay Konami. Konami had created a game that simulated a love story, where the player/main character would progress over a specific set of days, building personal "stats" and romantic relationships. Spec created a memory unit that could boost a player's stats and start the game at any point in the game's calendar. Konami argued, and the court agreed, that this action changed the essential contents and purpose of how the game was meant to be enjoyed, thus infringing upon the author's "right to preserve the integrity of a work." The case is similar to the Nintendo of America v. Lewis Galoob Toys case in the US, where Nintendo challenged Galoob's right to produce the Game Genie (which did basically the same thing as Spec Computer's product); Nintendo lost. Yet in Japan, the original game creator won out over the party who created the means to modify it. When comparing these two cases, it seems as if Japanese copyright law is enforced more strictly than American.
As other sources indicate, Japanese anime and manga artists happily live with fan-made comics starring copyrighted characters (called dojinshi, or doujinshi). In fact, much of the talent and creativity within the industry can be attributed to artists starting out in the dojinshi field. But in Konami v. Spec Computer it is clear that such infringement is technically against Japanese law as much as it would be against American law (even more so, given this case's similarity to Nintendo v. Galoob). So it is not the law that dictates the products of Japanese fan-culture, but rather common opinion and recognition of the positive effects to come out of certain forms of infringement.
Call#: Annenberg Library Reserve P94.65.U6 J46 2006
"The studios are now, for the most part, treating cult properties as "love marks" and fans as "inspirational consumers" whose efforts helped generate broader interests in their properties. Establishing the fans' loyalty often means lessening traditional controls that companies might exert over their intellectual properties and thus opening up a broader space for grassroots creative expression" (pp. 191)
And yet, American copyright holders still try their best to limit what kinds of fan fiction can be easily found online, in hopes of keeping some control over the perception (or decency) of their brand. None have tried to actually take a sexually explicit fan fiction author to court for fear of alienating fans and setting the wrong precedent, but they have tried to quash such expression. And the more affinity towards the fanbase, the more the fans will be willing to censor themselves in order to please their benevolent masters (of the copyright).
On page 155 (chapter 4), Jenkins mentions "song videos" as a form of fan fiction. He talks about fan fiction here in contrast to the kind of fan productions LucasFilm endorses, which can only be parody-flavored or about the fans themselves. "Song videos" are often the kind of production preferred by female fans, who take the time to explore and develop certain relationships and themes that may or may not have been present in the original work. LucasFilm acts along the same lines as the law might approach various kinds of derivative works-though it is comfortable with parodies, anything that might be seen as "expanding upon" the original universe could technically be illegal derivative work and therefore to be avoided. The difference between monolithic character properties such as Harry Potter and Star Wars and an entire (niche) medium is also very important to note. Unlike the more specific fan cultures, the anime fan culture is both less mainstream (and therefore even more dependant on the loyal and active few) and unable to be corralled and manipulated by one corporate body. Since an entire genre of cinema and comics are the focus and instead of one copyrightable property, lots of varying interests are at stake and no single one can control fans as a whole.
In 2002, American website Anime Tourist conducted a convention interview with two of the founding members of the respected Japanese anime production company Gainax, Hiroyuki Yamaga and Takami Akai. The two discuss their current and upcoming projects at Gainax, provided some details on their past at the company, as well as explaining some of the themes and such of their more famous works. Finally they speak on American localization of their works and American fandom.
An audience member asks the creators for their opinion on the music videos made from their work by American fans. Akai seems not to have been aware of them (the translation perhaps makes it a bit confusing), but Yamaga appreciates the fan-made works. He discusses the often-pointed-to model of manga and anime creators getting their start in the industry by writing and drawing dojinshi, or unlicensed fan comics based on copyrighted properties: "as Gainax, they got their start doing similar stuff so it's very hard for them to say, ‘No, We won't allow that.'" As a company, they have to plead ignorance that such fan material exists or else even Japanese copyright law would dictate that they shut infringers down. He points to the line between fan/hobbyist and professional as the deciding factor in whether or not infringing work is worth going after legally; in the Japanese manga business, the line is extremely blurred as young artists very often earn their stripes and build their skill on dojinshi before tackling original projects of their own. Japanese creators such as these may not be aware of the American arm of fan's use of their characters and work, but they are used to letting such forms of use slide within their Japanese fan culture.
Hatcher examines the workings of the American anime industry, paying the most attention to the history and physical process of fansubbing. Fansubbing is the process by which fans take Japanese anime (taped from broadcast television or DVD/home video), translate it and edit the video to include their own subtitles. Fansubs used to be distributed on VHS either in stores or among fan clubs, but are now almost exclusively found online. Hatcher suggests that the anime industry, though it has unquestionably benefited from fansubbing and other forms of high-level fan involvement, is now "held hostage by the internet and their otaku-consumers." By now professional licensing and localization companies can do much of their own advertising and market research due to the growth and age of the domestic marketplace; yet such companies know that to crack down on the core loyal fans will almost certainly result in a huge backlash from those on whom they rely most. In contrast to common internet "pirates," fansubbing groups commit infringing acts in the open (as publicized on websites or individual named in credits attached to their work) and are confident in the moral high ground of their actions (if a work is not yet licensed in America, it is seen as "perfectly legal" to make it available in fansubbed form, for example-despite international copyright laws); the common conception of "anime fair use" makes many technically illegal uses practically immune to legal retaliation
The almost forced acceptance of the fan use of anime in America, in order to maintain loyalty and relevancy among fanbase, makes anime music videos relatively easy to allow for domestic copyright holders. A lawsuit that attacks a now established tradition within the community would alienate much of a company's fanbase, driving them to other sources-including illegal ones if nothing else is available. Given the companies' general tolerance of (or lack of legal action against) the availability of full episodes or movies online, music videos are a much easier sell as "advertisements" for their products as opposed to replacements or illegal derivative works. And given the industry's heavy stake in the convention scene, it is clear that the community aspect of anime fandom must be maintained and courted in order to stay viable.
By Judge Alex Kozinski and Christopher Newman. Published in the Journal of the Copyright Society of the USA, Volume 46, No. 4, Summer 1999, pages 513-530
This article is a speech given by Judge Kozinski, a member of the Ninth Circuit Court of Appeals. While the speech is an overall discussion about the legitimacy of fair use, there is a significant portion devoted towards the idea of satire and parody and its place in fair use.
Kozinski disagrees with Seuss's thought that "The Cat NOT in the Hat!" is an attempt "to avoid the drudgery in working up something fresh." Instead, Kozinski feels that "It’s easy enough to spew a few lines of impromptu Seussian doggerel, but it takes some creativity and work to write a sustained satirical pastiche that people will enjoy enough to pay money for and recommend to their friends."
In general, Kozinski disagrees with the Bisceglia thought that a satirist can just pick a new work to focus on if he cannot acquire a license to the original work. He states:
"Even if the original work is used only as a vehicle, not just any vehicle will get you where you want to go. You can only get so many chuckles by mimicking something familiar. When this kind of satire really works well, it’s because there is something about the original that fits - or pointedly doesn’t fit - the subject"
Kozinski's stance demonstrates a willingness to grant more freedom to satirists. Similar to the Collado article, Kozinski is cognizant of the creative process and is aware that there are not always other options for satirists to choose from to make their point. In fact, Kozinski adds that "the fundamental premise of our copyright law is that the best way to encourage creation of valuable works is to let authors capture the market value of those works." It is the point of satire to create a different view on a well known material, and by restricting it too much, the spirit of copyright law will be broken.
Overall, Kozinski is a strong supporter of more fair use for satire and disagrees with his colleagues of the Ninth Circuit regarding the Seuss case.
Leonard's paper on American fans' use and distribution of anime goes into great depth on the legal issues raised, and often ignored, in regards to copyrighted works. The original Japanese copyright holders spurred on American fan-imports and fansubs by "abandoning" the market early on; in this way it was law-breaking American fans, clubs and conventions that created almost single-handedly what is now a visible and profitable market for the Japanese owners and the American licensors. Currently, though the Japanese owners do finally play in the American marketplace, they are nearly as willfully ignorant (in practice) of fan infringement than they were when America was still written off as an impossible market. But while first this ignorance was a result of their not thinking any American infringement could possibly hinder them financially, reasons for this now include the historical and continued support and "free publicity" for anime that American fans would not be so willing to embrace legitimately had it not gained buzz from prior illegal distribution among fan networks. Yet Leonard outlines all of the various ways that obtaining, translating, distributing and showing fansubs break any number of American and international copyright laws. Though fans often cite fair use as a defense for their actions (though a case has never been brought to court), Leonard dismisses all of the potential factors that would constitute fair use save for the "purpose and character" in the commerciality of fansubbing; in this case, fans often do their work for no profit and as a courtesy to fellow fans. In every other sense, their use is wholly unfair.
Here we see the rough legal guidelines that both Japanese and American anime copyright holders tend to adhere to when dealing with fans. In general, fan's use of anime is forgiven and often ignored, unless it exists in direct competition with legitimate localized releases. Anime Music Videos (not mentioned by Leonard) are another, altogether less potentially dangerous (than importing and fansubbing) form of "free advertising" for anime and of strengthening the fan networks that built and maintain the American anime audience. Again, Japanese copyright holders are shown to display a willful ignorance of American fans use for the most part.
Mehra explores the disconnect between Japanese (and American) written law and the tolerated success of dojinshi, a growing industry that could even be seen as direct competition for its copyright-holding cousin manga. Part of this issue is explained by the differences in which America and Japanese copyright law (especially that concerning character copyrights), though very similar on paper, are interpreted by courts and the common man. The few key differences include affording authors moral rights (Mehra points to the Konami case mentioned above as an example, given their ability to control how their characters are portrayed) and lacking a "generalized fair use provision." Mehra discusses the various reasons manga artists and copyright holders generally do not prosecute dojinshi artists; such reasons could include the social norms among artists where the good of the industry (in recruiting new talent, filling a niche unfillable by traditional manga, or catering to all its audience's favor) as a whole is placed before individual needs and the lower profitability of Japanese litigation (not to mention the average dojinshi author's common lack of real funds). Taking the dojinshi model, Mehra claims that "in some contexts, a certain level of fair use may help generate an economically efficient level of collective action;" in other words, allowing some level of infringement can foster a stronger and more creative artistic industry.
The reaction of the Japanese manga artist is examined here in relation to artifacts of fan culture. As manga and anime have penetrated foreign markets, it has brought some of that mindset with it, particularly to America. To begin with it sprang from fans' proactivity creating the American market itself, but the Japanese fan mindset has only been strengthened by the original authors' willful ignorance, and in some cases support, of classically infringing fan works. Despite the differences in American and Japanese case law concerning character copyrights, Japanese characters remain for the most part fair game for dojinshi, music videos, and the like on either side of the Pacific.
By Adriana Collado. Published in Journal of Technology, Law, and Policy, Vol. 9, Issue 1, June 2004.
Collado's article goes through the differences between parody and satire as stated by various court cases. This analysis includes a look into the Campbell and Seuss cases. With regards to the Seuss case, Collado states that the Ninth Circuit "unnecessarily narrowed the Campbell holding and set a precedent inconsistent with the goals of copyright law and with the Campbell decision itself" reaching the same conclusion as the Tushnet article.
Collado then analyzes satire as a fair use and how Seuss was inconsistent with Campbell. Specifically, Collado takes issue with the conclusion that there would be significant market harm from "The Cat NOT in the Hat!"
"[I]t seems unlikely readers would regard “The Cat NOT in the Hat!” as a substitute for the original, especially since the works target different audiences. While the original Dr. Seuss work is sold in the children’s section of the bookstore, “The Cat NOT in the Hat!” would likely be sold in the adult humor section. Furthermore, the fact “The Cat NOT in the Hat!” was labeled as a parody on its front cover and the author’s name was clearly depicted reduced the possibility readers would confuse or substitute the secondary work for the original."
By Footnote 14 of the Campbell decision (cited above), Collado concludes, there should have been fair use protection for this satire as the potential for market harm was slight.
Collado is a proponent of more freedom for satires. She disagrees with the Bisceglia opinion that satirists can "shop around" for other material if they cannot find a way to make a comment on the original work. Instead, Collado feels that a satirist's ideas are "often intertwined with their underlying source material" and if a satirist must look elsewhere for material, "the idea might not be created at all, thus generating a result...contrary to the goals of copyright law." Finally, Collado argues that satires not only do not displace the market, but could even "increase demand for the copyrighted work" by increasing interest in the original .
Overall, Collado's article provides a well-reasoned insight into the reasons why satire should be given fuller fair use protection as opposed to the Seuss case.
This case concerned a search engine run by Arriba Soft displaying thumbnail images of Kelly's copyrighted photographs. In deciding that the use was fair and therefore acceptable for Arriba to continue, the court set an important precedent in applying the guidelines of fair use to determine infringement. Four basic principles could be applied to a use to weigh whether or not it is legal: the purpose and character of the use, the nature of the original work, the amount or substantiality of the portion used, and the impact upon the potential market for the original work. According to how a use fares in each of these categories, the court may decide that it is fair.
First of all when it comes to anime, the nature of the original work is almost never anything but pure entertainment-and thus not favorable for allowed fair use. Sometimes anime music videos honestly transformative, when they display completely new stories or mash-ups of various anime. All (or most) by definition add a certain basic level of creativity not necessarily found in the original. But they all still use copyrighted characters in a (most often) non-parody work of original fiction. They also "quote" heavily (given that a single anime is the focus) from a single artistic source for arguably no critical/analytical point; although usually only 2-5 minutes of footage are taken, those few minutes will often contain the "heart" of the original work. AMVs are often concerned with bringing out themes, relationships, plots or action sequences already visible in the original anime. Thus, they are a sort of highlighted text thrown into a tumble dryer. While a level of creativity is evident in virtually every anime music video, that alone may not excuse the distribution of material centered on copyrighted and protected characters. And although they are not sold for profit and their character is largely to enrich the fan community and inspire creativity, there are still ways in which distributors indirectly benefit financially-through internet ad space, or through expensive convention tickets where AMV contests/showings are a main attraction. However, it would be hard to make a case claiming AMVs impacted the market for the original product. They surely straddle the line between fair and unfair use, but as far as the American copyright holders are concerned, the most important aspect of music videos seems to be their usefulness as tools to excite existing fans and advertise to new ones.
Clean Flicks was one of several companies that would purchase a normal retail DVD, edit it to remove offensive material such as sex, profanity, and violence, then sell it to consumers who wanted family-safe entertainment. The Colorado District Court decided that such a product infringed upon the creator's original intent and vision for a given work and creating and unlicensed derivative work; further, it constituted illegal copying and distribution over which the copyright holder should have control. The court denied a fair use defense completely. In addition, DVD encryption must be cracked to produce these copies, and that itself is illegal. The Family Entertainment and Copyright Act of 2005 clarified that this kind of product was illegal, where programs that changed movies on the fly (creating no "fixed" clean version) were permissible.
Here the major modern precedent is set for the illegality of the sale and distribution (even if not infringing on the market for the originals) of derivative works that change the expression of the original authors without their consent. If films with swearing edited out do that, so surely do music videos where a 26-episode plotline is boiled down to a 3-minute montage, for example. But where Clean Flicks was found to be adding nothing creatively to the original works, AMVs add both a new soundtrack, wholly new editing, and a new or simply focused narrative (or at least a novel collection of moments). This is a strong precedent for the ability of anime copyright holders in America to take action against distributors of music videos containing copyrighted footage. As further sources demonstrate, however, legal action against fans (especially those ardent enough to create music videos) is exactly what anime distributors want to avoid doing no matter how flagrantly the law is being broken. Worse than the music video issue is that of fansubbing, which only transforms works to the extent that subtitles are added, and nothing more; these are distributed over the internet and (mostly in the past) through retail and continue to exist without real legal action against them.
Newman, Jon O. EFF: Appellate Decision in Universal v. Reimerdes. Electronic Frontier Foundation. 22 November 2006. <http://www.eff.org/IP/Video/MPAA_DVD_cases/?f=20011128_ny_appeal_decision.html>.
This famous court case involved the publication of the "DeCSS" decryption program on the website 2600.com. "DeCSS" was designed to break through the CSS encryption on DVDs. The action of posting this program challenged the Digital Millenium Copyright Act which bans any measure of breaking through digital encryption, or any publication or distribution of any such measure. Eight film studios, including Universal, brought a suit against the operators of 2600.com, seeking to have "DeCSS" and any links to other sites containing it removed from 2600.com for violations of the DMCA.
The appeal challenged the constitutionality of the DMCA, claiming that it restricts free speech, and called for a narrow construction of its terms. They also claimed that "is rooted in and required by both the Copyright Clause and the First Amendment," and that the DMCA restricts this. However, the appeals court found no reasoning for these claims, and upheld an earlier injunction by a lower court requiring the removal of the "DeCSS" program and any links to it.
This case is extremely important because it establishes that arguments regarding fair use and free speech are almost no match for the terms of the DMCA. Were it not for the DMCA, I think it would definitely be easy to argue for my video project as a fair use; however, cases like this clearly state that this is no defense. The court states that there is no constitutional requirement for a fair use standard, and that such claims cannot supersede violations of anticircumvention laws.
McLaren, Carrie. "Illegal Art: Freedom of Expression in the Corporate Age." illegal-art.org :: A Project of Stay Free! magazine. 2002. Stay Free! magazine. 22 November 2006. .
This is the web site of the "Illegal Art" exhibition which has traveled the United States in the past year. The site contains a copy of curator Carrie McLaren's introduction to the show, in which she states, "The laws governing "intellectual property" have grown so expansive in recent years that artists need legal experts to sort them all out... If the current copyright laws had been in effect back in the day, whole genres such as collage, hiphop, and Pop Art might have never have existed... Should artists be allowed to use copyrighted materials? Where do the First Amendment and "intellectual property" law collide? What is art's future if the current laws are allowed to stand? Stay Free! [the magazine sponsoring the "Illegal Art" exhibition] considers these questions and others in our multimedia program." The site also includes a gallery of the various pieces included in the exhibit, which include a Mickey Mouse gas mask, photographs of Barbie dolls in kitchen appliances, a re-interpretation of the Starbucks logo as a "Consumer Whore", and various pieces including the "DeCSS" program. Many of the artists involved in the "Illegal Art" show were or are the targets of legal action by the holders of the copyrights to the works they appropriated.
The "Illegal Art" website is definitely a valuable resource in the creation of my project; through the gallery of the included works, I will be able to see how other creators used appropriated materials to comment directly on the nature of copyright issues. The artists involved in the exhibition used many different media to create their pieces, including a number of video pieces.
Call#: Van Pelt Library KF2979 .L47 2004
This case is an appeal by Napster of an injunction that does not require the plaintiffs to provide any individual file names of potentially infringing works available on the Napster system. The orders require the plaintiff to provide notice to Napster of copyrighted works by providing the title and artist name for each work. When given a list of copyrighted recordings, Napster would have three days to search all files on its system and prevent the transmitting or distribution of those files. Plaintiffs had sent in notices of hundreds of thousands of copyrighted works without the corresponding file names in the Napster system. Napster complained that the plaintiffs did not provide variants in song and artist name and could mix complying items in the same notice as non-complying items because Napster could not check in the time allowed by the injunction. The consequence was that Napster would end up blocking many authorized files. The arguments were that the DMCA set limitations on the judicial power of ISPs such as Napster, did not assess the "staple article of commerce" doctrine set forth in Sony, and that Napster has commercially significant non-infringing uses but is forced to block sharing of files even though the names do not always correspond with the contents of those files.
This case brings up some important points in my research about why copyright holders are finding it beneficial in some cases to waive some of their copyright in order to use new technologies such as MP3 blogs to promote music, while they continue to fight similar technology such as peer-to-peer services. Any discussion of Internet Service Providers (ISPs) liability is important because it affects how people can make blogs and share new things over the internet. There are several ISPs which allow anyone to create a blog from them, and these businesses are based on previous cases such as the Sony Corp v. Universal City Studios, Inc case where liability of technology providers is limited if they do not have specific knowledge of infringing uses of the technology. It also shows how even though a company can send take down notices, it is still difficult and costly to actually take a case to court and win it, no matter how clear cut it originally seems.
This case was brought to raise questions about the legality and constitutionality of the Digital Millennium Copyright Act. The argument is that "the DMCA's anti-device provisions are not a valid exercise of any of Congress' enumerated powers," and that they also "violate limits on the scope of copyright protection required by the First Amendment." The first part says that the Intellectual Property Clause does not give the authorization that anti-device provisions give, which allow technology to be banned regardless of how the device is actually used. The second argument is that in the anti-device provisions, Congress overstepped the authority given by both the Intellectual Property Clause, and the Necessary and Proper Clause, and upset the balance created by the Intellectual Property Clause, resulting in the monopolies that the framer sought to avoid. The third argument is that the Commerce Clause does not empower Congress to override other constitutional constraints. The fourth argument is that anti-device provisions violate First Amendment Limits on the scale of copyright protection.
I am researching why copyright holders in the case specifically of major record labels are willing to waive their copyright in certain situations such as MP3 blogs while choosing to exercise the copyright in similar situations such as peer-to-peer file-sharing networks. The case is relevant although it is not about blogs in that it provides an argument against a proposed end goal for copyright holders, the DMCA's anti-device provisions. The argument is that it upsets the balance intended between copyright and censorship and monopolies. Anti-device provisions would ban many devices even with commercially significant uses and would contradict fair use and First Amendment arguments, and would effectively end any possibility for use of technology such as MP3 blogs.
This essay describes what an MP3 blog is, and how record labels want to capitalize on the promotion that they provide while fighting file sharing at the same time. The essay discusses the types of copyright infringement and fair use and how they apply to MP3 blogs, as well as the factors that cause the court to view MP3 blogs more favorably than peer-to-peer networks. It discusses law suits against Napster and also by the RIAA against peer-to-peer users. The article explains what establishes liability for infringing use, and the different expansions of the Copyright Act which have been brought by copyright owners in addressing new technologies. It then discusses some of these acts and gives some examples of violators. The next section explains the defense used when copyright owners bring suits, which is fair use, and it lists and describes the four factors in deciding fair use on a case by case basis.
This essay incorporates basically every aspect of my research into why copyright holders are willing to waive certain copyright in cases such as MP3 blogs, while they continue to fight against much of new technology such as peer-to-peer services. It describes what MP3 blogs are and how they are used and different sites that can link to the unauthorized music. It shows what the copyright holder needs to look for in order to bring a suit against infringing users, and also explains how the user of the work can try to use fair use as a defense.
By Julie Bisceglia. Found in ASCAP Copyright Law Symposium, Volume 34, pages 1-34, 1987.
Bisceglia's article discusses in great detail the legal standing of parody by analyzing numerous cases that involve parody and/or satire. After concluding that there are contradictions and inconsistencies regarding the nature of fair use as it applies to parody, Bisceglia offers her own legal definition of parody, which includes "the parody must criticize the source text"
Assuming that the definition of satire is a work that uses a copyrighted work to comment on something else, Bisceglia takes a view that satire should not have protection under fair use. Bisceglia says that "a parodist must have good reason for encroaching on a copyright owner's territory...using a copyrighted work to snipe at other targets does not involve the same urgency."
Furthermore, Bisceglia does not see her view as a matter of restricting creativity. In her opinion, satire or parody "does not depend on a single text" and if the author cannot acquire the necessary license he should be able to find some other source for his work.
Bisceglia's overall point is very restrictive of satire. Under her definition, most satire would have no legal standing to claim fair use.
In this press release, the Paris based World Association of Newspapers (WAM), representing a membership of eighteen thousand newspapers worldwide, including AFP, seeks to address the issues facing newspapers resulting from new technologies. In particular, in the WAM press release, WAM discusses the ‘Napsterisation' of newspaper content. More explicitly, the group expresses a desire to counteract "the exploitation" by Google News and other search providers of copyrighted news articles. While Google, Yahoo and other search engines hide behind a guise of social benevolence, WAN asserts that these search engines do not represent "Robin Hoods," but rather highly profit oriented organizations that are seeking to misuse the hard work and copyrighted content of newspapers. Ultimately, WAN seeks to craft a relationship between newspaper publishers and search engines that would prove profitable and legal for both parties involved. WAM appears to understand that newspapers must adopt to technology, but at the same time WAM seeks to have that adaptation involve compensation by the search engines to the newspapers.
As a reflection of WAM's ultimate objective, Google and the Associated Press agreed to a deal in August of 2006 that would compensate AP when Google News used its assets. Google justified the deal with AP in that the AP content licensed Google assets would complement Google News. Google News would remain a news aggregator that linked to news sites, which Google adamantly considers a fair use.
Similarly, in November of 2006 Yahoo! struck a deal with over 150 United States newspapers. The agreement announces that Yahoo's technological leadership, specifically search, advertising and infrastructure, will be partnered with the leading newspaper content in the United States. The partnership plan will allow Yahoo! users access to personalized local news, such as classifieds.
As evidenced by these deals, the presence of Google News and Yahoo! should ultimately make newspapers more profitable, not less. Users should click through links on Google News and on Yahoo! more frequently than before, thus, raising the page views, revenue and attractiveness of newspapers. Although the recording industry may have been technically correct on the copyright violations Napster committed, ultimately by not adopting to technology changes, the recording industry has been eroded and not been the driver of change. News services and newspapers must consider how to adapt to changes brought on by technology, not merely fight changes technology brings.
Schmidt, Eric. “Conversation with Eric Schmidt Hosted by Danny Sullivan,” interview by Danny Sullivan (9 August 2006) (http://www.google.com/press/podium/ses2006.html) (last accessed 26 November 2006).
In this interview of Google CEO, Eric Schmidt, by Danny Sullivan at the Search Engine Strategies Conference, Schmidt discusses issues facing Google. He addresses everything from click fraud to protecting user private data. Ultimately, Schmidt underscores Google commitment to provide to Internet users the most relevant information, whether it is news, ad-content or search results. He does confess to a new emphasis on profitability.
Most relevantly, Schmidt addresses the pending lawsuit with AFP. Schmidt asserts that Google understands and wants to be sensitive to various conceptions of rights and copyrights. Schmidt also admits that there is an underlying ambiguity associated with fair use but appears to remain firmly committed to Google’s definition of fair use. Schmidt asserts that Google’s use of parts or snippets of copyrighted materials, like books and news, is not only fair use, but a vital research and knowledge tool. In the interview, Sullivan, expressly asks Schmidt about the AFP lawsuit, and whether the deal between Google and the Associated Press was made to “solve a legal issue.” Interestingly, Schmidt answers that for Google, litigation is just another way of making a business deal. In other words, the AFP lawsuit was not unexpected, but rather something Google understood might occur given its new use of technology. The deal between Google and AP addresses these same issues in a different way – a way that attempts to foreclose litigation and to reach an amicable resolution of essentially the same issue.
Despite its altruistic mission of making relevant knowledge available worldwide, Google is ultimately a profit making corporation. Schmidt’s comments reveal that Google’s rise from search engine to a dominant corporation rests in its aggressive and liberal interpretation of fair use. Thus, the dispute with AFP could be settled if Google could reach a satisfactory monetary agreement with AFP as it did with the AP. No matter what social cause the EFF or other bloggers ring regarding the global importance of Google and free speech and the public’s right to knowledge, Google is just another company trying to impress its shareholders with its profitability.
Schroeder, Pat. Publishers Sue Google over Plans to Digitize Books. Association of American Publishers. 17 November 2006 .
On August 12, 2005, the Association of American Publishers (AAP) posted a press release on their official website expressing their frustrations with the Google Print Library Project. The release states that the AAP supports the aims behind Google’s program but objects to Google’s use of copyrighted material without explicit permission. In addition, the AAP objects to Google’s “opt-out” policy. Through this policy Google will copy and digitize copyrighted works unless copyright owners specifically exclude their works from the program. Mrs. Schroeder, President and CEO of the AAP, states that Google’s opt-put policy, “…shifts the responsibility for preventing infringement to the copyright owner rather than the user, turning every principle of copyright law on its ear.” This August press release sets the stage for the lawsuit filed by the AAP against Google on October 19, 2005.
The day this lawsuit was filed, the AAP posted a press release on their official website. The release states that the lawsuit resulted from a breakdown of negotiations between the AAP and Google. According to the AAP, an ISBN based system can be easily utilized to aid in identifying copyright owners and obtaining proper permission to copy and digitize works. However, Google’s rejection of this system forced the AAP to file suit. In this release as well as the August one, the AAP makes a point to state their understanding of the benefits of Google’s program; the release declares, “…authors and publishers know how useful Google’s search engine can be and think the Print Library could be an excellent resource.” Nevertheless, the AAP strongly maintains that these benefits do not trump the fact that Google is engaging in copyright infringement.
CAMPBELL v. ACUFF-ROSE MUSIC, INC. (510 US 569, Supreme Court, 1994)
Widely regarded as the landmark case for parodist, Campbell v. Acuff-Rose gave the law a better definition where parody and satire stand in fair use. In brief, the case involves the rap group 2 Live Crew parodizing Roy Orbison's song "Oh Pretty Woman" for a rap version called "Pretty Woman". Specifically, 2 Live Crew used the opening bass riff and the phrase "Pretty Woman". Orbison sued for infringement, 2 Live Crew claimed fair use. The district court ruled in favor of Campbell, the appeals court ruled in favor of Acuff-Rose, and the Supreme Court ruled in favor of Campbell.
There is insufficient space to discuss in full the Court's view on parody, satire, and the fair use clause. But a few things are worth noting:
1) The Court draws a line between parody and satires and how they have different abilities to claim fair use.
"If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition,...the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish)...Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing."
This statement implies severe limitations on satire's ability for fair use, but does not shut it down entirely. This is a further narrowing of the Elsmere ruling and actually narrows further than Rogers.
2) The Court does provide an out for satire to have a stronger claim to fair use protection. Specifically, footnote 14 (which is actually refering to the previous paragraph)
"[W]hen there is little or no risk of market substitution...taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required."
Thus, if there is little market competition between the satiric version and the original, satire has a much stronger claim to fair use.
3) In a case where a work has both "satiric" and parodic work, the satiric part does not impact the fair use defense.
"The Act has no hint of an evidentiary preference for parodists over their victims, and no workable presumption for parody could take account of the fact that parody often shades into satire when society is lampooned through its creative artifacts, or that a work may contain both parodic and nonparodic elements."
Thus, in keeping in line with Rogers, if even a part of the work can stand as commentary on the original, it has a stronger ability to claim fair use, even if the majority of the work is satiric.
In summary, while the Supreme Court does place more limitations on satire and less on parody, there are many means by which satire can claim fair use successfully.
David R. Johnson and David Post. "Law and Borders-- the Rise of Law in Cyberspace." Stanford Law Review 48 (May 1996): 1367-1402.
David Johnson and David Post discuss the early difficulties (1996) in conceptualizing law in cyberspace. Borders in cyberspace are defined legally in terms of “screens and passwords that separate the tangible from the virtual world,” rather than physical and territorial boundaries that have traditionally defined legal doctrines. The authors hypothesize that without accustomed territorial boundaries, cyber law will develop independent of the usual local government regulation and authority and require a new type of thinking. To support this thesis, Johnson and Post reference the terms of service agreements offered by contemporary online service providers America Online and CompuServe as a type of law that would be enforceable, regardless of whether the agreeing user logged in from the United States, France, or Belgium.
Specifically, Johnson and Post discuss the emergence of and difficulty in constructing Copyright Law in cyberspace. Quoting law professor and copyright expert Jane Ginsburg, Johnson and Post explain the troubling task of deciphering copyright laws given an infinite number of countries. Ginsberg asks, “Without physical territoriality can legal territoriality persist?” (1834). In this context, Johnson and Post describe an explanation of the purpose of copyright law as the creation of a demand for works that can be sold and serve the public’s desire for knowledge (1384). The internet has created a mechanism to publish and view news easier and quicker than ever before in history. While regulating the dissemination of these works is complex, the crucial part of this process is to foster “a relationship” (1385). Most notably, Johnson and Post, assert the “ubiquity” of “copying” in cyberspace creating new notions of Intellectual Property. Every time you access a file online, your computer creates a local copy and this has important consequences for the concept of the “first sale’ doctrine” and fair use in copyright law (1386). Ultimately, these authors contend that new laws and conceptions of law must be developed to tackle the issues that will arise in cyberspace. Most relevant of the notions that Johnson and Post assert is how the use of caching of Google News constitutes a fair use, because users do it automatically.
The notion, however, that copyright laws as they now stand can not address the Internet does not stand up to scrutiny. Rather, it is the copyright owners that need to better assess the benefits of new technologies and the technology companies that need to better create new products while respecting existing copyright law. The law appears more than capable of addressing the issues even if the results might be different in different countries. There exist ways for technology providers to alter their systems to meet the differing legal requirements of differing countries.
Easton, Eric B. “Who Owns ‘The First Rough Draft of History?”: Reconsidering Copyright in the News.” Columbia Journal of Law & Arts 27, 4 (2003-2004): 521-563
Can you own the news? Eric B. Easton asserts the moral right and public good of news. Journalism has become increasingly more profit oriented, sometimes at the extent of accuracy. Easton contends that “[j]ournalism as a public service is inexorably being replace by ‘infotainment’ as a commodity” (522). Taking a historical slant, Easton further traces the evolution of the “propertization of news” (523). According to Edwin Baker, copyright law exists to encourage writing. Copyright, though, cannot protect the facts of the news (523). Easton finds the notion that copyright law protects the news troubling; characterizing the “news of the day,” which undeniably would include headlines and leads, as “the first rough draft of history” (524). Headlines, specifically, must be considered factual and completely subject to fair use.
The Internet has had a democratization effect on news. There is more news available and more information than ever before, but there nonetheless is an “absence of a public service ethos in what passes as journalism” (257). In order to rectify this, Easton suggests that all newspaper articles enter the public domain after twenty four hours. The availability in the public domain would assure that all news people involved would be aligned with the public interest and moral rights. Easton points out that technology has created just the opposite effect. Eldred v. Aschcroft and the Digital Millennium Copyright Act have allowed newspaper articles to be taken from the public domain in perpetuity (559).
Easton asserts the public’s right to the news and the consequent endorsement of Google News. Easton contends that the public dissemination of the news underscores the public service notion of journalism rather than the profit notion of journalism. While Easton may be correct as to journalism losing its public service underpinnings in the United States, in many countries journalism has not been thought of as having these underpinnings. Thus, Easton’s analysis does not apply to countries outside the United States and does not properly consider the rights the United States Copyright Laws have conferred on journalists. The public service notion of journalism needs to be an element of public policy considered in the assessment of the legality of Google News, but it can not be the only factor considered. The Copyright Laws as they currently exist in relevant countries must be addressed.
Electronic Frontier Foundation. EFF: Unintended Consequences: Seven Years Under the DMCA. Electronic Frontier Foundation. 28 November 2006. .
This article tracks the continued influence of the Digital Millenium Copyright Act, specifically the "anti-circumvention" provisions of Section 1201, throughout its first seven years in effect. The Electronic Frontier Foundation argues that the DMCA has not been used as a method of blocking piracy and devices used to perpetrate it, as Congress intended it; instead, the DMCA has become a tool for big businesses to eliminate potential competition and a blockage to fair use, creativity and technological innovations. Because the DMCA "chills free expression and scientific research... jeopardizes fair use... impedes competition and innovation... [and] interferes with computer intrusion laws", the EFF argues that circumvention must be permissible. The article also contains an exhaustive list of court cases in which the DMCA has been a key factor.
Full knowledge of the restrictions of the DMCA and a general sense of the ways in which legislation has surrounded it is absolutely vital for the creation of my project; the essential goal of my project is to make a challenge to the DMCA and the restrictions that it has placed on artists, specifically in terms of digital video.
Cardamone, Richard J. Art Rogers v. Jeff Koons; Sonnabend Gallery, Inc. National Coalition Against Censorship. 28 November 2006. .
This case is an appeal of the earlier Rogers v. Koons decision. Art Rogers took a photo titled "Puppies", depicting a man and woman holding armfuls of puppies; the photograph became very popular on greeting cards. Later, Jeff Koons took a postcard with the photo on it, removed the copyright notice, and planned the creation of a sculpture titled "String of Puppies." He specified that the sculpture be as similar to the original photo as possible, due to its use in an exhibition titled "The Banality Show" featuring art based on pop culture and commonplace images. Although the photo was in black and white, the sculpture was in full color. Three "String of Puppies" sculptures were sold for $367,000 each. Rogers sued Koons for infringing on his copyright; Koons claimed his work was a parody of the original, and therefore a fair use. The court found that the two works were substantially similar, that Koons had access to the "Puppies" photograph (and, in fact, actively worked to create a piece very similar to the original). The court did not find an specific necessity for the use of the "Puppies" photo that was being commented upon explicitly by Koons' sculpture, and therefore did not uphold his claim of a parody.
This case is very significant for being one of the first instances in which appropriation art came to trial for a copyright violation. Significantly - and keeping with the trend in many later cases - art using appropriated content lost. Although this particular case had many of the hallmarks of a decision against fair use - willful, known copying, economic profit from the work, etc. - it still shows a tendency of the court to dismiss this kind of art as copyright infringement. As I will be working with appropriated content on my final project, it is useful to know how court cases involving other appropriated-content works have turned out.
Hoffman, Bob. “How the AFP/Google Lawsuit Could Destroy the Blogosphere.” Search Engine Guide. 25 March 2005. (http://www.searchengineguide.com/cgi-bin/mt/mt-view.cgi/33/entry/3875/print_version). (last accessed 27 November 2006).
The Google-AFP decision could have a resounding impact across the internet. If headlines and leads are ruled copyrightable material, the ability to write, specifically blog, about the news could be specifically limited. “Bloggers traditionally quote articles and link to them in much the same way Google’s News site does. This means they can no longer do that with AFP news items without threat of a lawsuit,” Bob Hoffman, a “scared” independent journalist, explained. This explains why Matt Drudge, creator of drudereport.com, closely monitors the Copiepresse and Google cases on his site. If the AFP lawsuit is upheld, Drudge’s site, a collection of breaking news stories, could be liable to a continuous barrage of lawsuits as well.
If a ruling in favor of AFP truly signifies the end of the “news” Blogosphere, it will have severe consequences for the state of American Media. Blogs keep news media honest, offering criticism, secondary analysis and fact checking. The only sources of news will be the “big players” who will “completely control the news we see, read, and hear.” Corporations will own the news and its reproduction, and even subtle criticism will not be allowed.
While such a doomsday scenario is unlikely, Hoffman provides a convincing argument as to why commentary and links to the news needs to be considered fair use. The news is vital to our public discourse, and fair and neutral news is crucial to the development of the country and its citizens. It may be, however, that by adding criticism or comment the Drudge Report creates a new product and presents, under at least United States law, a differing analysis of fair use. A decision fully upholding AFP’s claims against Google will not necessarily undermine the Blogosphere. Yet, the impact of a decision on the Blogosphere does highlight the need to consider the public interest in any copyright analysis under United States copyright law. But particularly with the element of public interest, the fair use analysis could differ significantly among different jurisdictions.
In Chapter 5 of Free Culture, Lawrence Lessig lays out anecdotes and archetypes of all manner of piracy. The duplication of copyrighted CDs and DVDs in foreign markets is touched upon, but one of the main salient points is his defense of Peer-to-Peer file sharing networks, the groundbreaking networks and servers which made Section 512 absolutely necessary and the rulings on which still protect YouTube from harm.
One of Lessig’s major talking points is his attribution of the four archetypal uses of P2P networking: stealing music, sampling music before buying, access to abandonware or other copyrighted content that is no longer available by traditional means, and those who search for content that has no copyright or a Creative Commons license and is meant to be shared.
This is a highly utopian view of both P2P networking and the internet, but at the very least interesting to consider. Lessig goes on to discuss drops in CD sales and later Jack Valenti’s ridiculous claims about VCRs as “tapeworms,” just waiting to drive the industry down. If anything, the VCR and file-sharing networks both paved the way for the kind of content generation and also server networks that my final project will use and draw attention to.