Copyright, Fair Use, and the Digital Age Notes

Copyright Laws, Fair Use, and the Digital Age

Introduction

• The Internet facilitates easy sharing and access to creative works (songs, artwork, books, videos, etc.).
• However, this ease of sharing doesn't guarantee legality due to copyright laws.
• Copyright protects the intellectual property of creators, granting them legal rights over the copying and distribution of their work.

Copyright Laws

• Historical Context:
  • The first copyright law emerged in England in the 1700s, spurred by the printing press and unregulated book copying.
  • Most countries now have copyright laws; 177 countries, including the United States, adhere to the Berne Convention.
• Berne Convention:
  • An international agreement standardizing copyright across borders.
  • In signatory countries, a creative work is automatically copyrighted upon being "fixed in a tangible medium" (physical or digital).
  • Copyright notices are not mandatory, though registration is optional for enforcing copyright in court.
• Scope of Copyright:
  • Copyright protects the expression of ideas, not the ideas themselves.
• Exclusive Rights in the US:
  • The right to reproduce the work.
  • The right to create derivative works.
  • The right to distribute copies through sale or rental.
  • The right to publicly display visual works.
  • The right to publicly perform audio works via digital transmission.
• Duration of Copyright:
  • The Berne Convention sets a minimum of 50 years after the author's death.
  • The United States extends this to 70 years in most cases.
• Public Domain:
  • Once a copyright expires, the work enters the public domain.
  • Public domain works can be freely used and adapted by anyone (e.g., 19th-century books like Bram Stoker's Dracula and Jane Austen's Pride and Prejudice).

Fair Use

• Definition:
  • Fair use allows limited use of copyrighted materials without permission for purposes such as criticism, comment, news reporting, teaching, or research.
• Determination:
  • A judge determines fair use on a case-by-case basis, considering four factors:
    • Purpose and Character of Use: Educational vs. entertainment, non-profit vs. for-profit, transformative vs. iterative.
    • Nature of Copyrighted Work: Factual vs. fictional.
    • Amount and Significance of Portion Used: How much of the work is used, and its importance to the whole.
    • Impact on Market Value: Effect of the use on the potential market for the copyrighted work.
• Examples:
  • A non-profit educational website using a paragraph from a history book is likely fair use.
  • A commercial website streaming an entire historical drama is likely not fair use.
• Transformative Use: Court cases help define what constitutes "transformative" use.

Copyright in the Digital Age

• Challenges:
  • Easy reproduction of work leads to unintentional copyright violations (downloading files, pasting text, sharing images).
• Rise of Digital File Sharing:
  • 1990s: Peer-to-peer networks (e.g., Napster) enabled easy downloading of files.
  • Napster's Impact: At its peak, Napster consumed 60% of some colleges' Internet bandwidth through MP3 downloads.
  • Copyright Issues: Many MP3s were copyrighted music.
• Napster Lawsuits:
  • Lawsuits from Metallica, Dr. Dre, and record companies for enabling copyright violations in 2001.
  • Napster's Response: Attempted to remove copyrighted songs using digital fingerprinting algorithms.
  • Outcome: Napster shut down and filed for bankruptcy after a judge ruled its efforts insufficient.
• New Era in Digital Music:
  • Entrepreneurs sought legal means for online music access.
  • Examples: Spotify, Pandora (streaming subscriptions); Amazon, Apple (single song purchases).
  • Business Model: Companies pay royalties to copyright owners and obtain permission to offer songs.
• Digital Rights Management (DRM):
  • Definition: Tools that restrict how users can use copyrighted media.
  • Purpose: To prevent unauthorized sharing of legally downloaded content.
  • Example: Spotify uses DRM to prevent playing streamed songs outside of Spotify apps by scrambling audio data.
  • Circumvention: Programmers often find ways to bypass DRM.
• Digital Millennium Copyright Act (DMCA):
  • Passed in 1998 in the United States.
  • Criminalizes the production and distribution of technology that circumvents DRM.
  • Takedown Notices: Copyright owners can send DMCA takedown notices to services or individuals distributing their copyrighted works.
  • Compliance: Services must comply with takedown requests or face legal action.
  • Scale: Google has received over 4 billion DMCA takedown requests.
  • Example: RIAA sends thousands of takedown requests to Google daily.
• Criticisms and Concerns:
  • Abuse of Takedown Notices:
    • A 2016 study found that 36% of DMCA takedown requests to Google Image Search were of questionable validity.
    • Nearly half of invalid requests weren't copyright-related.
    • About one-third likely qualified as fair use.
  • Consequences:
    • Content hosting services use algorithms and human review to assess notices.
    • Mistakes can lead to legitimate content being taken down.
    • Takedown notices can be used for censorship or to stifle competition.
  • Impact on Visually Impaired Users:
    • DRM can prevent screen readers from accessing e-books.
    • Visually impaired users may be cut off from information or risk violating the DMCA by circumventing DRM.
    • Solutions Proposed: Movements to move away from DRM and exempt accessibility technologies from DMCA anti-circumvention provisions.