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Fair Use, the horse it rode in on, and the Jackasses it created.

The web is one of the few places where it is easier to ask permission than forgiveness.

Fair Use is the red headed stepchild of the Copyright universe. It is an exemption in current US Copyright Law that gives writers and publishers of every persuasion the ability to use portions of somebody else’s creations, without being dragged into court for Copyright Infringement every time mention is made of someone else’s work, whether it be textual, audio or visual. This is extremely important on the web as the lines between sharing, publication, and livelihood or simple greed, are at best blurry and at worst non existent.

The vast majority of internet users understand Copyright to mean Right Mouse Click/Save As. Their computers let them do it, so it must be okay. It is not, but that is another riff.

The Lane Hartwell/Richter Scales episode has done nothing to explain or educate the vast majority of players on the web about either Fair Use, Copyright, Copyright Infringement or the use of a DCMA Take down Notice. Instead it degenerated into a personality food fight(read the comments).

We will get to Fair Use in a minute. First a couple of notable bits of information that are important.

The Copyright Act of 1976 changed the terms and conditions of Copyright by conferring Copyright upon creation in fixed form, and removing the Requirement of Registration. By removing Registration as a Requirement, Copyright is now a ‘he said, she said’, mess of epic proportions.

What this means in long story short form, is that this is an original publication and is protected under Copyright. Strictly speaking, I am allowing you the reader to view this material in this form, while reserving all other reproduction rights. Also, strictly speaking you are violating my copyright by reading this in your browser, RSS reader, or scraping tool at your location.

The technology of the internet, the browsers and various programs used to distribute this post magically have turned you into an infringer as your computer has made a copy of this posting on your hard drive residing in the browser cache. Relax… I am the last person on the planet to sue your ass into debtors prison over copyright infringement. Besides I use a Creative Commons Share Alike License

Fair Use from the Horse’s Mouth
According to the US Copyright Office:

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

  1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
US Copyright Office Fair Use Section

Pay attention! You will see this material again.

The Lane Hartwell/Richter Scales episode
Lane Hartwell is a person who makes a living as a professional photographer. Her stock in trade are photographs. Richter Scales is a band who makes a living making music. Richter Scales produced a music video which used one of Hartwell’s photos as a part of the compilation.

[Correction] The photo they used was obtained through Flickr, which is an internet Photo Sharing Site.
thx McD
The photo they used was obtained from the Wired News website here. Which according to reports was paid for by Wired Magazine. Despite all of the warm fuzzies at Flickr as well as other sites, if it shows up in your browser, you can get a copy. To Repeat: The vast majority of internet users understand Copyright to mean Right Mouse Click/Save As. Their computers let them do it, so it must be okay.

Photographic Fair Use

Photographs are hard to slice and dice for the purpose of Fair Use as in most cases the entire photo is needed to make a point, which makes “amount and substantiality of the portion used in relation to the copyrighted work as a whole” a slippery slope. However, Google did prevail against Perfect 10 in a recent Copyright Infringement Lawsuit, where it was found that thumbnails and the Google Image Search was not Infringement. This is however only one case.

The web is one of the few places where it is easier to ask permission than forgiveness.

According to both Richter Scales and Lane Hartwell, neither credit was given nor permission obtained.
Giving credit is not permission. “Acknowledging the source of the copyrighted material does not substitute for obtaining permission.” The permission bit is what made the DMCA take down possible, despite the fact that the photos appearance was around 1/164th of the video, which is the argument for Fair Use that most folks who have posted on the issue have pointed to. Where is gets murkier is that video provided a link to the Scales site that was selling things, making “the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;” defense problematic.

the horse it rode in on

Richter Scales screwed up by not obtaining permission, providing an incomplete list of credits, which by the law is not permission, yet is pretty much the unwritten rule for using other folks stuff among the more enlightened and intelligent folks, then posting a defense that was lazy and self serving.

Lane Hartwell screwed up by posting photos to Flicker without understanding the nature of Flickr’s Terms of Service, Copyright, the internet users understanding of Copyright(Right Mouse Click/Save As), and having gotten the video taken down, insisted on invoicing Richter Scales for some undisclosed amount based on some wild ass guess as to it’s market value, as she had already been paid for it once. But that is the nature of the photo business currently, allowing you to sell the same image multiple times.

There are no winners in this episode.

Lane Hartwell may have gotten 15 minutes of Fame, but probably has shot herself in the foot for invoicing something that no longer exists nor can be reliably counted, for purposes of collecting a debt on what is now and will continue to be a grey area of Copyright Law. Spotlighting the current practices of ‘Professional Photography’ in terms of Copyright and licensing and subsidiary usage, will probably cause more companies to insist on work for hire, which will in the short term provide a small salary bump for popular photographers, but will depress the market for their services as some folks will always underbid them, in a market that is already cratering.

Using a DMCA Takedown Notice to salvage ‘rights’ will probably come to be known as ‘Doing a Hartwell’, destroying the utility of the DMCA as a valid tool for serious copyright infringement and opening the door for every jackass with a grudge.

Richter Scales have their 15 minutes of fame, but probably not in the way they would want to be remembered. They do however have a deep understanding of ‘permission’ now. Besides, there is probably a new more popular video online, and they will fall off the charts and will be a footnote in the dustbin of the history of the internet.

We lose as folks will be reluctant to create new forms of expression, quote other folks, or discuss these issues, to either reach a consensus on how we want to share or be compensated if that is our goal, or to change the nature of Copyright to have it work for us, rather than it being roadblock to creativity.

the Jackasses it created

I promised you Jackasses. Artistic License here. There is only one Jackass in this adventure. Mike Arrington.

Portions of the following (in Blockquotes, which are also links to the source materials) are republished under the Fair Use exemption of Section 107 of the US Copyright Law “for nonprofit educational purposes;”

Mike Arrington’s comments at Matthew Ingram’s site first turning the discussion from the issues into a gender bias allegation, in response to a comment by Shelley Powers of BurningBird with this gem:

“Mathew is right, you are wrong. But since Lane is a woman, it really doesn’t matter what she did as far as you are concerned. She’s a woman, so she’s right.”

Gender? WTF? Fair Use does not ask for gender, race, creed, sexual orientation, or yearly income as a condition of use. It is an exception to Copyright Law.

Before you think that this is the pinnacle of faulty reasoning, by virtue of changing the Fair Use/permission issue by turning it into a gender issue, like any troll, it gets deeper.

Matthew Ingram replied:

Thanks for the support, Mike — but let’s not bring Lane being a woman
into the discussion because a) I don’t think it’s relevant, and b)
Shelley hasn’t brought it up. I’d like to keep this focused on the
copyright issue.

Arrington’s reply to this is as follows:

“actually, Mathew, I’ll do whatever the fuck I feel like, and you can decide to censor comments or not.

Shelley is and always has been a fascist around these issues. If you’re on her team (poliically) she’ll support you to the death. Not on her team and she’ll find a way to take you out at the knees. People ignore her rather than call her on it.”

So now, not only is Shelley a woman,(which is the only thing Arrington got right) and part of some vast underground gender hit squad , but is also a fascist, with an underground blogosphere team of slavering jawed estrogen fueled bloggers in the wings to do her bidding.

All this from a guy who says he is a lawyer, but doesn’t understand what sexist means.

In reality, Shelley Powers is one of the foremost technology writers having written a number of books over the last 10 or so years on the leading edges of the technologies that are making this as well as the millions of other blogs and websites possible. She is also a photographer, a coder in more languages than most folks remember, and a passionate writer who happens to be a woman.

The web is one of the few places where it is easier to ask permission than forgiveness.The web is one of the few places where it is easy to ask forgiveness also.

Writing, Striking, and Arithmetic

Writing anything is a perilous adventure. From spelling, punctuation, style, form, substance, and in last place logic, from fiction to government reports, writing continues.

Writing anything is a perilous adventure. The act of creation, published or not, automagically creates copyright, which allows you a certain control over the manner of duplication, publication, and monetization. In the US, writing has been protected by copyright since copyright laws were born. So there are basically 2 ways of swapping money for stuff in the writing game, licensing your copyrighted work, or work for hire.

We have ‘work for hire’, which is pretty much what it says, you work for somebody, they give you money, they own what you did. This is the most pure form of swapping money for stuff. Very few writers take this road, for a multitude of reasons, from ignorance to ego.

Retaining Copyright and Licensing is another animal entirely. This means that in order for your work to make you money, you will need to make a deal, licensing or assigning some or all of the copyrights to a publisher. Publishers are not limited to folks who put out books and magazines, but also includes music companies and production companies like movie studios and TV networks.

In most cases these deals are structured to pay you a royalty for every copy sold, minus production and promotion costs, which have traditionally been under the control of the publishers accountants, whose creativity in reassigning costs and delaying payments makes most authors cry and most musicians die broke.

The current Hollywood writers strike, containing that group of writers who write the words and jokes that come out of the mouths of late night talk show guys, and episodic shows, is revolving around residuals, which are royalty payments in the video world. Residuals broadly defined are payments for rebroadcast of a show. They got paid for doing the work once, and by contract are eligible for a second bite of the apple if the show gets rebroadcast. Nice work if you can get it.

With the internet and DVD players in almost every house with television, the studios are packaging shows and offering them for sale, online and in the stores. For the studios this is a cash cow of immense importance, as a show or movie can generate as much if not more in DVD sales, which up till now has been pure profit for the studios.

The crux of the biscuit is the writers are considering these sales as rebroadcasts, and therefore subject to residuals. Real Nice work if they can get it. A third bite of the apple so to speak. I am all for folks making a living, but this residual business makes me a little bit uncomfortable.

For example, I am putting in a new bathroom for a client, who is paying me for my knowledge, expertise and labor. Normally at the end of the job, the client will give me a final payment and I will move on to the next project.

But hey, this residual thing has possibilities! Since I provided the knowledge, expertise, and labor, to allow them to have new indoor plumbing, I should receive a payment every time they take a shower, take a crap or flush the toilet. After all, this is a creation of my blood sweat and tears, and so like the writers, I should be compensated for every use. I should probably require them to tastefully display my name across from the toilet as a reminder that without me they would not be crapping indoors.

The centerpiece of writers case is the studios suing Internet sites like the Viacom You Tube Billion dollar copyright infringement lawsuit. The writers smell money and want to get a piece of the action. They are acting more like enforcers for a mob, than folks whose talent has been compensated at least once.

At some point, enough is enough.
Have they been given a raw deal by the studios? Probably, as most publishers of every stripe use creative accounting, fear, uncertainty, and doubt, to drive down the cost of production. Are writers being fairly compensated? Probably not as well as they would like, considering that they are on strike. However, it shakes out, at the end of the day, the writers will have to become accountants, to see that they get this latest entitlement, and the cost of everything having to do with television and movies right down to the DVD I buy and watch is going up.

The quality of everything will suffer as well, as the writers will be spending more time calculating sales, waiting by the mailbox for the residual checks to make them mailbox millionaires, leaving less time for things like writing.