Not all is fair in and links

Brian Morissey, Digidaily, Publishing in the Remix Era “The latest exhibit is page-sharing service The pitch is it’s “YouTube for web pages.” It sounds benign, but the results could be scary for publishers. lets anyone dump a URL into the platform, and then start editing a web page for sharing. The result: the New York Times story on President Obama’s Medicare panel? Change the headline. Better yet, take out the comments. Also, let’s strip out the related. Now it’s ready for sharing to the world — on a user’s own URL. Oh, and there’s no easy way for The New York Times to block its content from”
Or better yet, take a look at the same article, shared on by David Berkowitz, More BS from Digiday: Publishing in the Remix Era.
Now go back to the original. And the link.
Who expects this to last long in its present form? appears to be copying the entire web page, reproducing the entire work, presenting it in its original form and letting users modify the content, creating a derivative work. Can anyone make a non-frivolous argument that this specific behavior is protected by fair use?
The purpose and character of the use is commercial. Even though users may have an academic or creative purpose for using the service to transform works, on a large scale basis, the service is backed by venture capital, so it would seem to be meant to make money without any specific pedagogical or analytical goals.
The nature of the works copied will be articles by major newspapers, magazines and literary sites. (Who else would we expect to bring any eventual litigation?)
The amount of the work copied is generally the entire work, which isn’t always a barrier to a finding of fair use, but not particularly favorable for
Is the work transformative? There is an interesting application for linking and commenting that might draw the ire of web publishers that should be protected by fair use, but is probably insufficiently transformative. Yes, it allows its users to change the text of pages they share, but it doesn’t recontextualize the copyrighted material in any significant way. The pages capture the entire page source site, rather than just article text to put into a new context. The annotations are integrated with the text to change the text into a derivative work, rather than to stand alone in any way as annotations.
And even if this kind of reproduction was judged to be fair use, is likely to run head-on into trademark infringement. Since the page reproduces logos and branding completely with only subtle hints to the user-generated changes, readers are likely to be confused about Since many Internet users are now used to link shorteners, particularly for Twitter users, there can be some confusion as far as what is a canonical link and what is reframing.
SharedCopy is a more interesting service, because it allows its users to annotate web pages with more transparency. Even though SharedCopy is copying entire web pages, it is distinguishing the annotations from the original author’s text. However, it is copying entire pages and republishing articles outside of login/paywalls for users to share. Is it necessary for SharedCopy to copy the entire web page to allow users to link, annotate and comment on pages?
Flipboard and Readability are also doing interesting things with contextualizing and reformatting full text of web pages, but generally more for private personal use, so there is little republishing. And Readability and Flipboard are both attempting to work with publishers to license uses to provide the best experience for their users.

Remix Revisited

The NY Public Library event Remix: Making Art and Commerce Thrive in the Hybrid Economy with Lawrence Lessig, Shepard Fairey, Steven Johnson was well-attended and lively discussion, even if the panel was comprised entirely of copyright moderates with no mainstream maximalists or crazy abolitionists.
Here are some rough notes, transcribed and re-ordered from what I wrote down at the panel:
On the continuum of copyright use, the panel talked about a few different uses that can be classified in the following ways:
Incidental and de minimis use. This is where a copyrighted work may appear in another work, either as part of the background. Because of the pervasiveness of copyrighted works all around us, perhaps a more generous threshold than the 6th Circuit’s Bridgeport sampling standard (where any use is an infringing use, no matter how small) is the sensible standard.
Transformative use for commentary, criticism
Here is, obviously, the heart of the panel. If a work is transformative and used for non-commercial or substitutionary purposes, it should be classified– more often than not– as a fair use.
Is mashup creative? Does it shed a light on the works it builds from? Is the law able to judge the merit of the creativity? If a mashup derives its impact from borrowing the hook, core, or the entire narrative structure, shouldn’t there be some level of use that deserves compensation? Where do we draw the line?
But non-commercial transformative uses of copyrighted works online are often lumped in for enforcement purposes with infringing distributions or performances.
How often do we see iconic images in a public space that aren’t commercial images?
Commercial substitution.
Siknce Grokster, P2P usage is up substantially. And what percentage of those uses are simply straight-up infringing uses that substitute for purchases of copies? How much P2P usage is simply plain old piracy of current, popular, copyrighted works? That P2P usage is up since Grokster isn’t necessarily something to celebrate and RIAA lawsuits aren’t necessarily something to ridicule. Widescale piracy does need to be deterred. Whether these lawsuits are
At its best, grassroots activism is actually from the roots, not from above. And it’s going to be messy.
Institutions are made out of people. They’re PEOPLE! PEOPLE!
The NY Times’ Jennifer Schuessler attended and wrote up a succinct summary of the discussion, Steal This Blog Post! “The event felt a little like Burning Man for the so-called Copy Left, with body art to match. Shortly before the talking started, two big guys with big cameras ushered a woman with a cool shoulder tattoo of Fairey’s Obama poster out of her seat. Enforcers from the Associated Press, which claims Fairey violated its copyright, perhaps?”
Here’s the complaint in Fairey’s lawsuit against the AP seeking a declaratory judgment that “Hope” is not an infringing derivative work, Fairey v. AP
The New York Times, Artist Sues The A.P. Over Obama Image
Yesterday, Fresh Air broadcast an interview with Fairey, Shepard Fairey: Inspiration Or Infringement?, “He joins Fresh Air to talk about the image, the dispute, and why he thinks his poster qualifies as a protected work under Fair Use provisions.”
Fairey has inspired a whole genre of Hope-inspired images and parodies, such as a
Watchmen-inspired image

YouTube, Fingerprinting and Fair Use

Critic and filmmaker Matt Zoller Seitz wirtes an essay about how YouTube and the DMCA Takedown procedure are harming online film criticism, The House Next Door: Copy Rites: YouTube vs. Kevin B. Lee: “When the history of intellectual property law is written, January 12, 2009 should be marked as a decisive moment. It was the day that my friend, fellow House Next Door contributor and sometime filmmaking partner Kevin B. Lee saw his entire archive of critical video essays deleted by YouTube on grounds that his work violated copyright.”
The web has the potential to make multi-media criticism accessible and easy to create. Criticism and comment on a work is a paradigmatic example of Section 107 fair use.
However, because video is complex and bandwidth intensive, video hosting sites like YouTube in particular have made it possible for the non-technical critic to embed videos into a web page. And these video hosts have little desire to defend their users’ alleged infringements as non-infringing fair uses. The DMCA §512(c) safe harbor creates an incentive for video hosting providers to respond promptly to notices of alleged copyright infringement and take down those allegedly infringing videos.
With the rise of audio and video fingerprinting technology, YouTube and other video hosting sites may be scanning user uploads for potential copyright infringements of works owned by their content partners. YouTube is offering its users the ability to replace copyrighted music in soundtracks with music licensed to YouTube’s music library.
The EFF’s Fred Von Lohmann calls the deployment of this audio fingerprinting technology, YouTube’s January Fair Use Massacre: “It’s clear from the Warner Music experience that YouTube’s Content ID tool fails to separate the infringements from the arguable fair uses. And while YouTube offers users the option to dispute a removal (if it’s an automated Content ID removal) or send a formal DMCA counter-notice (if it’s an official DMCA takedown), many YouTube users, lacking legal help, are afraid to wave a red flag in front of Warner Music’s lawyers. That’s a toxic combination for amateur video creators on YouTube.”
Does YouTube have a responsibility to promote fair use? Or is it actively helping its users by forcing them to avoid any uses that might possibly infringing?

Accio Injunction

In what is likely to be the most magical copyright case to come to the Southern District of New York this year, US District Judge Robert Patterson ruled in favor of Warner Brothers and J.K Rowling against RDR Books, finding that the publisher of the Harry Potter Lexicon infringed on the plaintiffs’ copyrighted expression in the collected Harry Potter works. Warner Bros. Entertainment, Inc. v. RDR Books

While a victory for the original author, this case does provide useful guidance for future reference guides to fictional works on how to create a guide that will be considered fair use.
The key issue that the court has with the Lexicon is the extent to which it borrows language directly from the original Harry Potter novels and companion books. The court writes, “Although it is difficult to quantify how much of the language in the Lexicon is directly lifted from the Harry Potter novels and companion books, the Lexicon indeed contains at least a troubling amount of direct quotation or close paraphrasing of Rowling’s original language. The Lexicon occasionally uses quotation marks to indicate Rowling’s language, but more often the original language is copied without quotation marks, often making it difficult to know which words are Rowling’s and which are Vander Ark’s. … Although hundreds pages (sic) or thousands of fictional facts may amount to only a fraction of the seven-book series, this quantum of copying is sufficient to support a finding of substantial similarity where the copied expression is entirely the product of the original author’s imagination and creation.”
Invented facts– such as the properties of a boggart— constitute creative expression protected by copyright. Each “fact” reported by the Lexicon is actually expression invented by Rowling. Reproducing original expression in fragments or in a different order, however, does not preclude a finding of substantial similarity. However, the Lexicon’s rearrangement of Rowling’s fictional facts does not alter the protected expression in a way that the Lexicon ceases to be substantially similar to the original works.
The court finds that the Lexicon is not an infringing derivative work because it is not sufficiently creative to be a derivative work. “By condensing, synthesizing, and reorganizing the preexisting material in an A-to-Z reference guide, the Lexicon does not recast the material in another medium to retell the story of Harry Potter, but instead gives the copyrighted material another purpose.” In a footnote, the court goes on to note that this is the key difference between derivative works which are infringing and works of fair use, which are permissible.
The defendants raise the defense that the Lexicon is a fair use of material from the Harry Potter books, but the court rules that the Lexicon is insufficiently transformative to be a fair use. “The purpose of the Lexicon’s use of the Harry Potter series is transformative. Presumably, Rowling created the Harry Potter series for the expressive purpose of telling and entertaining and thought provoking story centered on the character Harry Potter and set in a magical world. The Lexicon, on the other hand, uses material from the series for the practical purpose of making information about the intricate world of Harry Potter readily accessible to readers in a reference guide. … Because it serves these reference purposes, rather than the entertainment or aesthetic purposes of the original works, the Lexicon’s use is transformative and does not supplant the objects of the Harry Potter works.” The Lexicon’s use of material from the companion books, which started life off in encyclopedic form, does add value by “adding a productive purpose to the original material,” it is transformative “to a much lesser extent” since it largely supplants “the informational purpose of the original works.”
“While not its primary purpose, the Lexicon does add some new insight, of whatever value, as to the Harry Potter works.”
“The transformative character of the Lexicon is diminished, however, because the Lexicon’s use of the original Harry Potter works is not consistently transformative. … Perhaps because Vander Ark is such a Harry Potter enthusiast, the Lexicon often lacks restraint in using Rowling’s original expression for its inherent entertainment and aesthetic value.” The inconsistent use of diligent citations by the Lexicon contributes to a lack of transformative character in those instances where its value as a reference guide lapses.
Weighing most heavily against Defendant on the third factor is the Lexicon’s verbatim copying and close parahprasing of language form the Harry Potter works. In many instances, the copied language is a colorful literary device or distinctive description.… The Lexicon’s verbatim copying of such highly aesthetic expression raises a significant question as to whether it was reasonably necessary for the purpose of creating a useful and complete reference guide.
“Additionally, the fourth factor favors Plaintiffs if publication of the Lexicon would impair the market for derivative works that Rowling is entitled or likely to license. Although there is no supporting testimony, one potential derivative market that would reasonably be developed or licensed by Plaintiffs is use of the songs and poems in the Harry Potter novels. Because Plaintifs would reasonably license the musical production or print publication of those songs and poems, Defendant unfairly harms this derivative market by reproducing verbatim the songs and poems without a license.”
The court confirms that it should be possible to write a guide to a series of novels that does qualify as a fair use, by lifting less of the language directly.

“Notwithstanding Rowling’s public statements of her intention to publish her own encyclopedia, the market for reference guides to the Harry Potter works is not exclusively hers to exploit or license, no matter the commercial success attributable to the popularity of the original works. The market for reference guides does not become derivative simply because the copyright holder seeks to produce or license one.… Furthermore, there is no plausible basis to conclude that publication of the Lexicon would impair sales of the Harry Potter novels… reading the Lexicon cannot serve as a substitute for reading the original novels; they are enjoyed for different purposes. The Lexicon is thus unlikely to serve as a market substitute for the Harry Potter series and cause market harm.…
“In striking the balance between the property rights of original authors and the freedom of expression of secondary authors, reference guides to works of literature should generally be encouraged by copyright law as they provide a benefit readers and students; but to borrow from Rowling’s overstated views, they should not be permitted to ‘plunder’ the works of original authors ‘without paying the customary price,’ lest original authors lose incentive to create new works that will also benefit the public interest.”

Other links and commentary:
Michael Madison, Eyes on the Fair Use Prize: “The interesting half of the opinion, from my point of view, is the treatment of the fair use argument.  In effect, and without belaboring a critique of the full opinion, the court decided that the Lexicon, while alleged to be a work of scholarship, wasn’t scholarly enough.”
Derek Bambauer, Info/Law, Rowling 1, Lexicon 0: “This case tees up hard copyright questions. What is the boundary of the term of art ‘derivative work’? How broad should an author’s control be over secondary, non-scholarly works treating her expression? How should courts deal with inventorying of ‘fictional facts’? This opinion resolves some of these questions in the Lexicon case, but I feel less certain it answers them for future plaintiffs.”
Scrivener’s Error, Harry Potter and the Copyright Infringement: “Contrary to the whingeing (and outright screaming) that you’re going to hear, this is not a rejection of fair use as a concept. It is, instead, limited to the particular facts that were presented to Judge Patterson for this matter.”
David Ardia, Citizen Media Law Project, Judge Rejects Fair Use Defense in Harry Potter Lexicon Case, J.K. Rowling Recovers Her Plums: “So what are we to make of the court’s lengthy exposition on fair use?   As I already noted, Judge Patterson’s framing of the facts seems to have dictated how his fair use analysis would come out.  Nevertheless, there is some good news in the opinion for fair use advocates.”
NY Times, Rowling Wins Lawsuit
Against Potter Lexicon
: “For seven years, a Harry Potter fanatic worked on a guidebook to J. K. Rowling’s best-selling series, but in the end, a federal judge ruled on Monday, his book was too close to the work he admired.”

Muggles and Fair Use

J.K. Rowling testified this week in her lawsuit against the publisher of a book version of The Harry Potter Lexicon, Warner Bros. Entertainment Inc. v. RDR Books.
Mark Hamblett, New York law Journal: Harry Potter Author Fights Creator of Lexicon, Calling It ‘Wholesale Theft’: “In pointed and at times emotional testimony, Rowling employed a sharp tongue to charge that a Michigan publisher borrowed much from her wildly successful works and added nothing when it created a ‘lexicon’ alphabetically listing characters, places, spells, creatures and objects in the Potter series.”
New York Times, Rowling Testifies Against Lexicon Author: “Ms. Rowling argued on Monday in Federal District Court in Manhattan that the proposed encyclopedia — she has read the manuscript — is a copyright infringement and is little more than an alphabetical form of plagiarism. She claims the author has lifted large chunks of her own language without quotation marks. ‘I believe that this book constitutes the wholesale theft of 17 years of my hard work,’ she testified.”
Scrivener’s Error Beware the Ides of April: “the reporting of the Harry Potter Lexicon case is only making clearer that Warner Brothers’ trademark interests, far more than Rowling’s copyright interests, are driving the lawsuit. Although Rowling’s testimony yesterday was from a copyright holder/creator’s perspective, the questions from plaintiffs’ counsel — representing her interests — were from a trademark and dilution/disparagement/passing-off perspective, even when put in the formal language of copyright claims.
Derek Bambauer, Info/Law Harry Potter and the Lexicon of Fair Use: “I think the book infringes Rowling’s copyrights, that the use isn’t fair, that the trademark claim is weak, that the plaintiffs will win on the copyright claim, and that this outcome is a good thing.”
Tim Wu, J.K. Rowling should lose her copyright lawsuit against the Harry Potter Lexicon: “But Rowling is overstepping her bounds. She has confused the adaptations of a work, which she does own, with discussion of her work, which she doesn’t. Rowling owns both the original works themselves and any effort to adapt her book or characters to other media—films, computer games, and so on. Textually, the law gives her sway over any form in which her work may be ‘recast, transformed, or adapted.’ But she does not own discussion of her work—book reviews, literary criticism, or the fan guides that she’s suing. The law has never allowed authors to exercise that much control over public discussion of their creations.”
Mike Madison, A Fair Use Lexicon: “Over the last decade, copyright owners in many industries dreaded and resisted the prospect that the copying machine that we call ‘the Internet’ might destroy their business models.  Rowling v. RDR Books (the formal title of the Harry Potter case) presents the relatively uncommon situation in which the Internet (i.e., ‘free’) version of the alleged infringement was unobjectionable; hackles were raised and claims were filed only when what was merely digital became (or threatened to become) analog. ”

Taking Down the Shred

Wired: Humorless Metalheads Shut Down Popular YouTuber: “The three unnamed artists filed copyright infringement claims against the parody videos of Finnish media artist Santeri Ojala, causing YouTube to shut down his account over the weekend.… Ojala’s popular videos poked harmless fun at famous guitar soloists by dubbing his own abhorrently bad strummings over rock concert footage.”
The “shreds” videos live again on at MySpace (until they receive a takedown notice) and at Wired.
Eric Clapton shreds

Since the videos comment on the seriousness of virtuostic guitar wanking, there is a non-trivial argument that these could be considered a parody fair use. Of course, there is also a non-trvial argument that these videos are defamatory and damaging to the guitarists’ reputations, even though they are public figures. But from that perspective, striking these videos down off one video hosting service may perpetuate them across the web becoming more powerful than imaginable.

Gawker, Scientology and Fair Use

The Church of Scientology requests that Gawker remove a clip of Tom Cruise talking about Scientology for copyright infringement, but Gawker is willing to step up and argue that its use is a fair use for the purposes of news reporting. Church of Scientology Claims Copyright Infringement
The clip in question, Exclusive: The Cruise Indoctrination Video Scientology Tried To Suppress: “if Tom Cruise jumping on Oprah’s couch was an 8 on the scale of scary, this is a 10.”

Quoting Copyright Material in User-Generated Video

The Center for Social Media at American University has released a study on the quoting of copyrighted material in user-generated video and fair use, Recut, Reframe, Recycle: “The study, Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video, by Center director Pat Aufderheide and Peter Jaszi, co-director of the law school’s Program on Information Justice and Intellectual Property, shows that many uses of copyrighted material in today’s online videos are eligible for fair use consideration.”
The study cites a number of ways in which uses of copyrighted videos could be considered as fair use:

  1. Parody and satire
  2. Negative or critical commentary
  3. Positive commentary
  4. Quoting to trigger discussion
  5. Illustration or example
  6. Incidental use
  7. Personal reportage or diaries
  8. Archiving of vulnerable or revealing materials
  9. Pastiche or collage

Catching Up: Derivative Works and Fair Use

These are links I’ve come across in the last couple of months about derivative works and fair use:
Dan Brekke,, Tangled up in Seuss: “Ryan took the text from seven Seuss classics, including ‘The Cat in the Hat’ and ‘Green Eggs and Ham,’ and set them to original tunes that sounded like they were right off Dylan’s mid-’60s releases. He played all the instruments and sang all the songs in Dylan’s breathy, nasal twang. He registered a domain name,, and in February posted his seven tracks online, accompanied by suitably Photoshopped album artwork, under the title ‘Dylan Hears a Who.'”
Derek Bambauer, Info/Law, Abolishing the Derivative Works Right in Copyright, Or, Why Legalizing “The Grey Album” Makes Economic Sense: “From an economic perspective, giving copyright holders the right to control production of derivative works – works that transform their expression, such as the movie version of a novel – is unjustified, even harmful. Current scholarship either defends this entitlement as economically sensible or partially reconfigures it. This article assesses the dominant economic rationales for derivative control, and finds them weak at best. Unlike other copyright scholarship, this piece argues that since the right prevents production of attractive, diverse, cheaper new expression, and blocks the promise of re-mix culture, it should be eliminated.”
NY Times: MST3K: The Final Frontier: “Mike Nelson, the show’s longtime host and head writer, has begun a new venture called RiffTrax, and he can now skewer virtually any movie without infringing on copyrights. Recordings of him talking back at movies can be downloaded (for fees ranging from 99 cents to $3.99) from Start playing the DVD or VHS version of the movie and Mr. Nelson’s commentary simultaneously, and the effect is that of a director commenting on a DVD — except that Mr. Nelson is inclined to say, as he does during a scene in ‘Star Trek V: The Final Frontier’ in which William Shatner climbs a mountain, ‘He’s actually trying to scale his own ego.'”
Ron Coleman, Likelihood of Confusion: One cease and desist letter I won’t be sending: “What makes mass murderers and war criminals fear the Wrath of Wally?”
Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005: “Working from a data set consisting of all reported federal opinions that made substantial use of the Section 107 four-factor test for fair use through 2005, the Article shows which factors and subfactors actually drive the outcome of the fair use test in practice, how the fair use factors interact, how courts inflect certain individual factors, and the extent to which judges stampede the factor outcomes to conform to the overall test outcome. It also presents empirical evidence of the extent to which lower courts either deliberately ignored or were ignorant of the doctrine of the leading cases, particularly those from the Supreme Court.”
Julie Hilden, Findlaw, Perez Hilton, Michelle Malkin, and the “Fair Use” Exception to Copyright Law: What Are the Rules When Bloggers Use Video Excerpts and Photographs Without Permission?: “Recently, two prominent bloggers — political pundit Michelle Malkin and celebrity gossip purveyor Perez Hilton (not to be confused with Paris Hilton) — have been involved in battles over the scope of the exception for ‘fair use’ of copyrighted material.”