Copyfascism Watch

Google is in the spotlight in another copyright scandal when it allowed Arrianna Huffington's 236.com to claim copyright on Paulo's intellectual property. According to Paulo in a message sent to BoingBoing:

I'm the guy who made the cloudy timelapse video popularly used later "Anonymous Message to Scientology."

Three days ago, Google's copyright bot flagged my own video as infringing because 236.com (Arianna Huffington's comedy news outfit) had posted a parody video using my footage with a content identification sig on it. When I asked who had flagged my video as infringing in preparation for a dispute, I was told that 236.com had graciously allowed me to keep "their copyrighted video."

Basically I put out a free public domain video for the internet to use as they wished, 236.com made a thirdhand derivative parody, and through Google Video they made an aggressively [sic] claim of copyright over my own material. At the time of this writing my video has not been restored.

One of the unintended consequences of the Digital Millenium Copyright Act (or maybe it was very much intended?) is that corporations are rarely or never doubted when they invoke the DMCA. They send DMCA notices and the online services jump and willingly comply in an effort to stave off costly lawsuits. This inequity is ever more apparent when they invoke the DMCA against an individual's copyright. The average content-creator does not have the deep pockets of the RIAA and MPAA (or any corporation for that matter) to fend off attempts to steal their copyrights.

Paulo is rightly indignant in an email he sent to Arianna Huffington herself:

Why, thank you! Please do convey to twentythreesix (23/6) that I am absolutely DRIPPING WITH GRATITUDE for so GRACIOUSLY permitting me to KEEP MY OWN VIDEO UP. Bad enough that their "Anonymous Message to Giuliani" was derived from the "Anonymous Message to Scientology" which used my original footage, now twentythreesix is still claiming COPYRIGHT ON THE ORIGINAL FOOTAGE, and only letting me keep my own material up out of the GOODNESS OF THEIR HEARTS.

As we can see, not only are copyrights being used to stifle innovation and creativity by preventing derivatives of original works, it can be used to punish original content-creators when powerful and deep-pocketed corporations claim ownership over an individual's work.

One of the hardest things to swallow for me is the concept that every single copyright infringement is somehow akin to theft. The copyright infringer usually expends his own resources and utilizes his own labor to produce a product that is similar or sometimes nearly identical (a copy) to an original work. There was no illegal transfer of resources from the copyright holder to the infringer. The only transfer that occurs is one of an idea or concept that is copied and made tangible. And I am of mind that ideas are not owned by anyone. People originate them, but they can never own them or gain the right to control its distribution.

Any thoughts?

TechRepublic has a list up of ten laws people could be violating right now as they sit in front of their computers and access the internet. Interestingly enough, half of the list pertains to intellectual property. The travesty that is the DMCA tops the list at number one:

#1: Digital Millennium Copyright Act (DMCA)

Most computer users have heard of this law, which was signed in 1998 by President Clinton, implementing two World Intellectual Property Organization (WIPO) treaties. The DMCA makes it a criminal offense to circumvent any kind of technological copy protection — even if you don’t violate anyone’s copyright in doing so.

In other words, simply disabling the copy protection is a federal crime. There are some exemptions, such as circumventing copy protection of programs that are in an obsolete format for the purpose of archiving or preservation. But in most cases, using any sort of anti-DRM program is illegal. This applies to all sorts of copy-protected files, including music, movies, and software. You can read a summary of the DMCA here.

If you’re a techie who likes the challenge of trying to “crack DRM,” be aware that doing so — even if you don’t make or distribute illegal copies of the copyrighted material — is against the law.

The DMCA as a law infringes on an individual's private property rights by making it illegal for the individual to tinker with his own electronic devices. How terrible is it that the mere potentiality of copyright infringement is grounds for legal action.

The Church of Jesus Christ of Latter-Day Saints are claiming that their copyright on the religious handbooks they give out to their bishops have been violated by Wikimedia Foundation's Wikileaks that published pages of the aforementioned material online. In an article published by Wikinews, the news publication arm of Wikimedia Foundation, a spokesman from Wikileaks stated:

Wikileaks will not remove the handbooks [the Church Handbook of Instructions is a two-volume set], which are of substantial interest to current and former Mormons. Wikileaks will remain a place where people from around the world can safely reveal the truth.

This a complicated issue. The LDS is attempting to stop the online distribution of its publicly and widely disseminated material. It is an exercise in futility if there is one. But there is a crucial question here: do tax-exempt religious institutions have copyright? I have seen no comparable cases where a church invoked its copyright in order to stop dissemination of its materials (with the notable exception of the Church of Scientology). Does the Catholic Church have a copyright on papal bulls, for example? Who owns the copyright to prayers? Religious songs? Is there anything that is not copyrightable? Even the Air Force has attempted to invoke its copyright going as far as sending DMCA notices to YouTube, never mind the inconvenient fact that governmental agencies do not hold copyrights! While I understand that the churches are not governmental institutions, their very public function (and historically they were the government!) should make them ineligible for copyrights.

Wendy Grossman explains the legal gray area that surrounds End-User License Agreements (EULA) that Microsoft et al slaps on every piece of software it sells to consumers:

If you did read the terms, you might be surprised. Eulas typically specify that the software's publisher is not liable if anything goes wrong. They typically specify the publisher's preferred jurisdiction for legal disputes. And some are even more restrictive: some graphics packages have been known to specify that they cannot be used in the production of pornographic images. Yet these licences are, as Hanlon complained, not really contracts: you generally cannot read them before you buy (rather than use) the software, and you can't negotiate terms.

One of the problems that needs to be resolved in the copyfight is the validity of licenses, which not only includes all EULAs, but Creative Commons and open-source licenses like the GNU as well. An argument cannot be made that the consumer and seller participated in a voluntary-exchange, when often the terms of the EULA are not agreed to prior to the purchase. How legitimate are the claims of manufacturers that consumers are merely buying the CDs and not the permission to install and use the software for which the consumer (rightly, I might add) believed he is paying?

We do not accept that Ford or American Eagle (a clothing company) has any say in how we use the products they sell us after it is sold to us. Why then do we give software companies this right?