Recently in copyright Category
Slashdot tells us that a company associated with Jon Lech Johansen (a/k/a 'DVD Jon') has released a beta version of software called 'doubleTwist', which will 'free your media', and does various semi-useful things, including circumventing the DRM on Apple iTunes files and converting them to MP3 format.
Of course, use of the doubleTwist software is subject to an End User Licence Agreement, Terms of Service agreement, and Privacy Policy. If/when you read them, a stench of rank hypocrisy lingers in the air, as does a suspicion that DVD Jon has sold out, and taken on many characteristics of the evil corporations he's waged war against. Amongst other things, the agreements allow the use and collection of personal information for delivering targeted advertising (despite their website describing doubleTwist as having 'no adware'), and prohibits users from circumventing DRM used by doubleTwist -- even though doubleTwist circumvents DRM used by other companies.
Relatively non-controversial parts of these agreements are not excerpted for copyright reasons. Not that DVD Jon seems to give a damn about copyright...
Of course, use of the doubleTwist software is subject to an End User Licence Agreement, Terms of Service agreement, and Privacy Policy. If/when you read them, a stench of rank hypocrisy lingers in the air, as does a suspicion that DVD Jon has sold out, and taken on many characteristics of the evil corporations he's waged war against. Amongst other things, the agreements allow the use and collection of personal information for delivering targeted advertising (despite their website describing doubleTwist as having 'no adware'), and prohibits users from circumventing DRM used by doubleTwist -- even though doubleTwist circumvents DRM used by other companies.
Relatively non-controversial parts of these agreements are not excerpted for copyright reasons. Not that DVD Jon seems to give a damn about copyright...
Continue reading DVD Jon sells out to The Man: Dissecting the doubleTwist EULA, ToS, etc.
For those who are interested, I've made a PDF version of the paper on Creative Commons licences and warranty issues which I referred to in previous postings. It's an assessment paper and consequently wasn't written to the same standard as it would have been if it was for publication. The paper also had to comply with a word limit, so its treatment of some areas is necessarily superficial. I'd be interested in reader's comments.
In my last posting, I talked about the problem of people purporting to license material under a Creative Commons licence, where they had no right to do so. One such scenario is:
So what do you do? You sue A. Except that the terms of the CC licence try very hard to prevent you from doing that. See for example cl 5-6 of the CC Attribution 3.0 unported licence:
This is serious stuff. The version 1.0 licences expressly warranted that 'to the best of Licensor's knowledge after reasonable inquiry ... Licensor has secured all rights in the Work necessary to grant the license rights hereunder and to permit the lawful exercise of the rights granted hereunder ...' The post-1.0 licences basically say 'I give you the right to reuse this stuff, but I refuse to say whether I'm the copyright holder, and if I'm not, you can't sue me.'
The disclaimer and limitation of liability clauses aren't air-tight, or at least not in all cases. If there was fraud involved, they wouldn't be effective. There may be applicable warranties which are implied by statute which the licensor can't contract out of. A court might hold that these clauses aren't sufficient to contract out of liability in negligence.
The paper which I referred to in my previous posting explores these issues in more detail. The deletion of warranties after the 1.0 licences has a lot of history (involving much dummy-spitting and beating of chests), and I don't defend everything that the 1.0 licences warranted -- they went too far in some areas. But I think that the post-1.0 licences have gone too far in the other direction -- by disclaiming warranties as to the validity of the licence, and attempting to contract out of all liability, IMHO they disclaim too much to be useful, or at least, they disclaim too much to fulfil their stated goals.
- A finds a copyright picture of a cat on the Internet;
- A inserts a humorous caption, and publishes the resulting captioned picture on flickr under a Creative Commons licence which permits commercial re-use;
- B finds the picture on flickr, and starts selling t-shirts with the picture on them, not realising that they are infringing copyright;
- C, the person who owns the copyright in the original picture, finds out that B is infringing their copyright and sues B. (Yes, they could also sue A, but lets assume B has deeper pockets and is a more attractive target)
So what do you do? You sue A. Except that the terms of the CC licence try very hard to prevent you from doing that. See for example cl 5-6 of the CC Attribution 3.0 unported licence:
5. Representations, Warranties and Disclaimer
UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE WORK AS-IS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU.
6. Limitation on Liability. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This is serious stuff. The version 1.0 licences expressly warranted that 'to the best of Licensor's knowledge after reasonable inquiry ... Licensor has secured all rights in the Work necessary to grant the license rights hereunder and to permit the lawful exercise of the rights granted hereunder ...' The post-1.0 licences basically say 'I give you the right to reuse this stuff, but I refuse to say whether I'm the copyright holder, and if I'm not, you can't sue me.'
The disclaimer and limitation of liability clauses aren't air-tight, or at least not in all cases. If there was fraud involved, they wouldn't be effective. There may be applicable warranties which are implied by statute which the licensor can't contract out of. A court might hold that these clauses aren't sufficient to contract out of liability in negligence.
The paper which I referred to in my previous posting explores these issues in more detail. The deletion of warranties after the 1.0 licences has a lot of history (involving much dummy-spitting and beating of chests), and I don't defend everything that the 1.0 licences warranted -- they went too far in some areas. But I think that the post-1.0 licences have gone too far in the other direction -- by disclaiming warranties as to the validity of the licence, and attempting to contract out of all liability, IMHO they disclaim too much to be useful, or at least, they disclaim too much to fulfil their stated goals.
Given my apparent reputation as being 'anti-copyright' (which I'm not), you'd think I would be a major supporter of things such as the Creative Commons project -- but I'm not. Creative Commons has got far too many bugs and other assorted problems for my liking. Many months ago I wrote a paper describing some of the faults that I perceive with the licenses and the movement, one day I'll probably clean it up and publish it on the net. I might even publish it under a Creative Commons licence.
I can do this, because it's an original literary work, and I'm the author, so I own the copyright which subsists in it, and I can license it as I please. But some people don't know or don't care about little details like that.
Take as an example the Flickr user anomalous4. It might be unfair to single them out for criticism on this issue, since I'm sure there are thousands of other people out there doing the same thing, but they seem to be a fairly clear-cut example of the problem, and they came to my attention after one of their pictures was posted on Cute Overload today.
Yes, it's a cute pic. Click on it, and you end up on the page for that pic on flickr. The description of the picture? "don't know source of pic." They have other lolcats on their flickr profile, here's another one. The description of that one? "Original from ????? don't know".
I'm inferring from the descriptions that anomalous4 has given those images that they have found the original cat pictures from somewhere, edited the pictures to insert a humerous caption, and put them on their flickr profile. The problem is, anomalous4 has purported to license both of those images under a Creative Commons Attribution 2.0 licence, which they almost certainly had no right to do. You can't give people permission to use copyright material that you've just randomly appropriated from somewhere on the Internet because it was cute.
This is an admittedly trivial example. It's not likely that the original copyright owner would find out that this was happening, they may not care, and they probably wouldn't sue. The risk to people who reproduce anomalous4's CC-licensed lolcats is pretty tiny. But then again, cute overload might put it in their 2009 calendar, and get sued by an angry litigious photographer who thinks they've stolen their photo.
My point is this, and it was a major theme of the paper that I wrote criticizing the CC licences: When you release material under a CC licence, you are inviting other people to reuse it and purporting to give them permission to do so. If you don't have the right to license that material, the people who reuse it could get sued. You owe it to them to only CC-license material which you have the right to license. Usually, that will mean that it's your own original work (sticking a caption on somebody else's cat photo doesn't count) or that the non-original components were also CC-licensed.
I can do this, because it's an original literary work, and I'm the author, so I own the copyright which subsists in it, and I can license it as I please. But some people don't know or don't care about little details like that.
Take as an example the Flickr user anomalous4. It might be unfair to single them out for criticism on this issue, since I'm sure there are thousands of other people out there doing the same thing, but they seem to be a fairly clear-cut example of the problem, and they came to my attention after one of their pictures was posted on Cute Overload today.
Yes, it's a cute pic. Click on it, and you end up on the page for that pic on flickr. The description of the picture? "don't know source of pic." They have other lolcats on their flickr profile, here's another one. The description of that one? "Original from ????? don't know".
I'm inferring from the descriptions that anomalous4 has given those images that they have found the original cat pictures from somewhere, edited the pictures to insert a humerous caption, and put them on their flickr profile. The problem is, anomalous4 has purported to license both of those images under a Creative Commons Attribution 2.0 licence, which they almost certainly had no right to do. You can't give people permission to use copyright material that you've just randomly appropriated from somewhere on the Internet because it was cute.
This is an admittedly trivial example. It's not likely that the original copyright owner would find out that this was happening, they may not care, and they probably wouldn't sue. The risk to people who reproduce anomalous4's CC-licensed lolcats is pretty tiny. But then again, cute overload might put it in their 2009 calendar, and get sued by an angry litigious photographer who thinks they've stolen their photo.
My point is this, and it was a major theme of the paper that I wrote criticizing the CC licences: When you release material under a CC licence, you are inviting other people to reuse it and purporting to give them permission to do so. If you don't have the right to license that material, the people who reuse it could get sued. You owe it to them to only CC-license material which you have the right to license. Usually, that will mean that it's your own original work (sticking a caption on somebody else's cat photo doesn't count) or that the non-original components were also CC-licensed.
Another judgment from the Federal Court of Australia today makes for interesting reading, especially if you're a software developer. The case is Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2007] FCA 2054.
The case involved the copying of two Javascript class files:
The programming code in these files provided relatively trivial functionality for a Content Management System (CMS) developed by the applicant. When the second respondent (a former employee of the applicant) needed to implement similar functionality in a similar application, they copied these two class files from the website of one of the applicant's clients, and adapted those files to their needs. The applicant sued under various causes of action, including infringement of copyright, breach of confidence, breach of contract, and improper use of information gained during employment, under the Corporations Act.
The two significant questions for the copyright claim were:
Things were looking pretty good for the applicant at this point, but the wheels came off their copyright case on evidentiary issues -- they couldn't establish that the respondent had copied the version of files pleaded (from that particular client's website), as opposed to earlier or later versions from another site.
Jessup J then considered whether the respondent had infringed the copyright in the CMS as a whole by reproducing a substantial part of it. Qualitatively and quantitatively (the two files accounted for 0.22% of the lines of code in the whole CMS), Jessup J held that the two files were not a substantial part of the CMS.
This decision could have implications for code reuse. Where bits of code are of insignificant size compared against the whole program, and of trivial functionality and originality, they would probably not be a 'substantial part' of the whole program, and could be copied without infringing copyright. On the basis of this decision, if a part of the code is significantly modular and discrete to be viewed as a 'set of instructions' (perhaps a function, or a class, especially if contained in a separate file), and the code is functional in the sense that it can be used 'to bring about a certain result' (such as, perhaps, a sort algorithm), then they can't be copied without infringing copyright, as they are 'computer programs' in their own right, even if they are an insubstantial part of a larger computer program as the term is commonly known.
[Update: Thanks to Dave C for pointing out that the title of this posting originally referred to the files as being 'Java' files instead of 'Javascript']
The case involved the copying of two Javascript class files:
http://www.hradvantage.com.au/_script/CDAITable.js (the 'table file')
http://www.hradvantage.com.au/_script/CDAIEditor.js (the 'editor file')
The programming code in these files provided relatively trivial functionality for a Content Management System (CMS) developed by the applicant. When the second respondent (a former employee of the applicant) needed to implement similar functionality in a similar application, they copied these two class files from the website of one of the applicant's clients, and adapted those files to their needs. The applicant sued under various causes of action, including infringement of copyright, breach of confidence, breach of contract, and improper use of information gained during employment, under the Corporations Act.
The two significant questions for the copyright claim were:
After considering the statutory definition of 'computer program' (a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result), and discussing the history of the definition and relevant authorities, Jessup J concluded that the files fit within that definition -- as sets of statements or instructions -- and therefore each file was a separate literary work in which copyright subsisted. His Honour said at [39]:
- Whether the two files were 'computer programs' within the meaning of the Copyright Act 1968, or whether they were merely components of the CMS, which was the computer program; and
- Whether, if the files were not 'computer programs' in their own right, the respondent reproduced a 'substantial part' of the computer program that was the CMS.
The definition requires me to accept as a computer program any set of statements or instructions which is used to bring about a certain result. I consider that the instructions in the table file and the editor file were a set within the terms of the definition. Those files were discrete manageable entities. Either could be downloaded and used as such. Either could be included in, or excluded from, a CMS, depending on the developer's requirements. Each added functionality, in the sense that results were made possible by its inclusion. Each file (or either file as the occasion required) was sent as an entity to the user's computer to function co-operatively with the browser's software. The instructions on each file were related by function, by location and by utilisation. On any view, those instructions constituted a set. Further, the results for the bringing about of which the files were used were recognisable and definable. In the case of the table file, for instance, one result might be the highlighting of a line entry in a table. Another result might be the re-ordering of the lines in the table. For each result to be brought about required the participation of HTML software on the browser; but it required also the participation of the relevant instructions in the table file. That is to say, in the words of the definition, the bringing about of the result in question required the use of those instructions. And the same conclusion could be drawn, mutatis mutandis, in the case of the instructions in the editor file.
Things were looking pretty good for the applicant at this point, but the wheels came off their copyright case on evidentiary issues -- they couldn't establish that the respondent had copied the version of files pleaded (from that particular client's website), as opposed to earlier or later versions from another site.
Jessup J then considered whether the respondent had infringed the copyright in the CMS as a whole by reproducing a substantial part of it. Qualitatively and quantitatively (the two files accounted for 0.22% of the lines of code in the whole CMS), Jessup J held that the two files were not a substantial part of the CMS.
This decision could have implications for code reuse. Where bits of code are of insignificant size compared against the whole program, and of trivial functionality and originality, they would probably not be a 'substantial part' of the whole program, and could be copied without infringing copyright. On the basis of this decision, if a part of the code is significantly modular and discrete to be viewed as a 'set of instructions' (perhaps a function, or a class, especially if contained in a separate file), and the code is functional in the sense that it can be used 'to bring about a certain result' (such as, perhaps, a sort algorithm), then they can't be copied without infringing copyright, as they are 'computer programs' in their own right, even if they are an insubstantial part of a larger computer program as the term is commonly known.
[Update: Thanks to Dave C for pointing out that the title of this posting originally referred to the files as being 'Java' files instead of 'Javascript']
The Sydney Morning Herald is reporting that Australian TV stations are using their copyright over programming information (i.e. what shows will be on, and when) to demand concessions from manufacturers of digital video recorders.
The TV stations' representative group Free TV Australia sent a letter to the representative group for DVR manufacturers, saying that:
It's a pity that Australia doesn't have a doctrine of copyright misuse. We do however have a statutory prohibition against misuse of market power -- perhaps the TV stations should read up on the Magill case?
The TV stations' representative group Free TV Australia sent a letter to the representative group for DVR manufacturers, saying that:
Broadcasters are not authorising the use of the programs listing data in PVRs where 'ad-skip' functionality goes beyond a maximum fast forward speed of x60; broadcasters reserve their rights with respect to those suppliers
and that
There you have it. If you want the program data, you have to nobble the fast-forward ability of your products, and use DRM, or they sue you.In addition, the PVR's [sic] which display the EPG [Electronic Program Guide] must employ adequate copy protection measures to prevent the redistribution of free to air content outside the home or on the internet... Broadcasters reserve their rights subject to the Commonwealth Copyright Act 1968, to take legal action at any time for copyright infringement where program listings are used in contravention of these terms.
It's a pity that Australia doesn't have a doctrine of copyright misuse. We do however have a statutory prohibition against misuse of market power -- perhaps the TV stations should read up on the Magill case?
In the Today Tonight v The Chaser saga that I blogged about previously, Channel 7 obtained an interim injunction to prevent the broadcast of The Chaser's footage filmed on Channel 7's premises.
In that judgment (Seven Network (Operations) Pty Ltd v Australian Broadcasting Corporation [2007] NSWSC 1289), Barrett J says:
I wonder if the ABC will apply to have Channel 7 held in contempt?
In that judgment (Seven Network (Operations) Pty Ltd v Australian Broadcasting Corporation [2007] NSWSC 1289), Barrett J says:
[14] It has been conceded by Channel 7 that there was a plan to put to air tomorrow a program about today's incident in which the Chaser team visited the Channel 7 premises. Channel 7 would, in that program, use footage taken by Channel 7 itself when the Chaser team were at the premises. I was concerned about that aspect and communicated that concern to counsel for Channel 7 who, during a short adjournment, obtained instructions to offer to court an undertaking by Channel 7, the plaintiff, to continue to take immediate steps to do what it can to withdraw the 15 second promotional broadcast for a story on the incident and also that, until determination of these proceedings, Channel 7 will not broadcast that story.I'm reliably informed by one of my 'known associates', and a news story seems to confirm, that Channel 7 did in fact broadcast the story that they undertook not to broadcast. The Daily Telegraph have video of the story that was aired online.
...
[18] Upon the plaintiff by its counsel giving to the court the usual undertaking as to damages and an undertaking to continue to take immediate steps to do what it can to withdraw the 15 second promotional broadcast for a story on the incident the subject of these proceedings and that until determination of these proceedings it will not broadcast that story, I order that the defendants and each of them, whether by themselves, their servants or agents or otherwise, be restrained up to and including 15 November 2007 from making a copy of (except as permitted by these orders), communicating to the public or causing to be seen in public (a) the film or any part of it taken by the defendants or any of them or at the direction of any of them at the premises of the plaintiff at about 2.15 pm today and (b) any film which includes any part of that film.
I wonder if the ABC will apply to have Channel 7 held in contempt?
News.com.au reports on an interesting copyright twist in the recent catfight between Channel 7 and The Chaser over footage that The Chaser filmed in 7's studios in Sydney after apparently sneaking in uninvited. Apparently 7 believes that sending camera crews onto private property, uninvited, ambushing people, filming them, and broadcasting the footage is morally objectionable. I guess they'll be cancelling Today Tonight forthwith, in that case. Pot, kettle, black.
Anyhow, although the judgment doesn't mention copyright issues -- Seven Network (Operations) Pty Ltd v Australian Broadcasting Corporation [2007] NSWSC 1289 -- the news.com.au report says that:
Anyhow, although the judgment doesn't mention copyright issues -- Seven Network (Operations) Pty Ltd v Australian Broadcasting Corporation [2007] NSWSC 1289 -- the news.com.au report says that:
In an expensive bid to stop the skit via a Supreme Court injunction, Seven's lawyer Dauid Sibtain stated Coren's involvement as a "performer" meant the ABC would be breaking copyright laws if they reproduced her image without her employer's consent.I don't know whether the news report is somewhat garbled, or whether 7's understanding of copyright is somewhat garbled. Perhaps they think Ms Coren qualifies as an 'artistic work', the communication to the public of which would infringe the copyright that subsists in Coren?
The Sydney Morning Herald and other outlets are reporting that the Sydney man who made a 'bootleg' recording of the Simpsons movie with his mobile phone, uploaded it to the Internet, and was subsequently charged with two criminal offences for so doing, has pled guilty and been fined $1000.
It's a bit of a joke really -- not because his punishment was so low, but because it shows up all the claims that the government was making about the copyright infringement notice scheme as a low-cost, low-hassle alternative to the 'traditional' methods of charging people and bringing them before a court.
This guy was fined $1000. If, instead of being charged with two copyright offences, he was given two infringement notices, he would have had to pay 12 penalty units for each one, with a penalty unit being worth $110, for a total of $2640.
That's right -- this villainous scourge of the motion picture industry, whose Crimes Against Hollywood were so great so as to cause the Attorney-General to weigh in, saying how good Australia's copyright laws were, and how seriously we take these issues, went to court the 'traditional' way and paid less than half of what he would have paid if he'd been given infringement notices.
This really gives the lie to the government claims that the fines associated with infringement notices would be less than if people took the matter to court.
It won't be long before MIPI, AFACT, and their ilk start bleating about Australia being a 'banana republic'. Again.
It's a bit of a joke really -- not because his punishment was so low, but because it shows up all the claims that the government was making about the copyright infringement notice scheme as a low-cost, low-hassle alternative to the 'traditional' methods of charging people and bringing them before a court.
This guy was fined $1000. If, instead of being charged with two copyright offences, he was given two infringement notices, he would have had to pay 12 penalty units for each one, with a penalty unit being worth $110, for a total of $2640.
That's right -- this villainous scourge of the motion picture industry, whose Crimes Against Hollywood were so great so as to cause the Attorney-General to weigh in, saying how good Australia's copyright laws were, and how seriously we take these issues, went to court the 'traditional' way and paid less than half of what he would have paid if he'd been given infringement notices.
This really gives the lie to the government claims that the fines associated with infringement notices would be less than if people took the matter to court.
It won't be long before MIPI, AFACT, and their ilk start bleating about Australia being a 'banana republic'. Again.
While research something completely work related (no, really!) on Wikipedia, I stumbled across a recent lawsuit against the producers of Family Guy. In the Family Guy episode 'When You Wish Upon a Weinstein', Peter sings a musical number to the music of 'When You Wish Upon a Star', praying for a Jewish person to save him from his (self-inflicted) financial woes. Surprisingly, there isn't a video of this on Youtube, but they do have a video of a life performance of the song, but only the last verse.
The copyright owners of 'When You Wish Upon a Star' have sued various Fox companies, the company that produces Family Guy, and the creator of Family Guy, Seth MacFarlane. CNN have a story here, and the complaint is available here as a PDF. The lawsuit seeks statutory damages of at least $150k, as well as a permanent injunction and the destruction of all copies of the Weinstein song.
The copyright owners of 'When You Wish Upon a Star' have sued various Fox companies, the company that produces Family Guy, and the creator of Family Guy, Seth MacFarlane. CNN have a story here, and the complaint is available here as a PDF. The lawsuit seeks statutory damages of at least $150k, as well as a permanent injunction and the destruction of all copies of the Weinstein song.
