• Tag Archives copyright

  • European Copyright Ruling Ushers in New Dark Era for Hyperlinks

    Posted on by Azrael 1 Comment

    In a case which threatens to cause turmoil for thousands if not millions of websites, the Court of Justice of the European Union decided today that a website that merely links to material that infringes copyright, can itself be found guilty of copyright infringement, provided only that the operator knew or could reasonably have known that the material was infringing. Worse, they will be presumed to know of this if the links are provided for “the pursuit of financial gain”.

    The case, GS Media BV v. Sanoma, concerned a Dutch news website, GeenStijl, that linked to leaked pre-publication photos from Playboy magazine, as well as publishing a thumbnail of one of them. The photos were hosted not by GeenStijl itself but at first by an Australian image hosting website, then later by Imageshack, and subsequently still other web hosts, with GeenStijl updating the links as the copyright owner had the photos taken down from one image host after another.

    The court’s press release [PDF] spins this decision in such a positive light that much reporting on the case, including that by Reuters, gets it wrong, and assumes that only for-profit websites are affected by the decision. To be clear, that’s not the case. Even a non-profit website or individual who links to infringing content can be liable for infringing copyright if they knew that the material was infringing, for example after receiving notice of this from the copyright holder. And anyway, the definition of “financial gain” is broad enough to encompass any website, like GeenStijl, that runs ads.

    This terrible ruling is hard to fathom given that the court accepted “that hyperlinks contribute to [the Internet’s] sound operation as well as to the exchange of opinions and information in that network”, and that “it may be difficult, in particular for individuals who wish to post such links, to ascertain whether [a] website to which those links are expected to lead, provides access to works [that] the copyright holders … have consented to … posting on the internet”. Nevertheless, that’s exactly what the judgment effectively requires website operators to do, if they are to avoid the risk of being found to have knowingly linked to infringing content.

    There are also many times when knowingly linking to something that is infringing is entirely legitimate. For example, a post calling out a plagiarized news article might link to the original article and to the plagiarized one, so that readers can compare and judge for themselves. According to this judgment, the author of that post could themselves be liable for copyright infringement for linking to the plagiarized article—madness.

    This judgment is a gift to copyright holders, who now have a vastly expanded array of targets against which to bring copyright infringement lawsuits. The result will be that websites operating in Europe will be much more reticent to allow external hyperlinks, and may even remove historical material that contains such links, in fear of punishing liability.

    Source: European Copyright Ruling Ushers in New Dark Era for Hyperlinks | Electronic Frontier Foundation




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  • California’s Legislature Wants to Copyright All Government Works

    Posted on by Azrael 1 Comment

    AB 2880 will give state and local governments dramatic powers to chill speech, stifle open government, and harm the public domain.

    The California Assembly Committee on Judiciary recently approved a bill (AB 2880) to grant local and state governments’ copyright authority along with other intellectual property rights. At its core, the bill grants state and local government the authority to create, hold, and exert copyrights, including in materials created by the government. For background, the federal Copyright Act prohibits the federal government from claiming copyright in the materials it creates, but is silent on state governments. As a result, states have taken various approaches to copyright law with some granting themselves vast powers and others (such as California) forgoing virtually all copyright authority at least until now.

    EFF strongly opposes the bill. Such a broad grant of copyright authority to state and local governments will chill speech, stifle open government, and harm the public domain. It is our hope that the state legislature will scuttle this approach and refrain from covering all taxpayer funded works under a government copyright.

    What Does the Bill Do?

    AB 2880 sets out to “clarify” that all works created by public entities are eligible for intellectual property restrictions. This includes trademarks, patents, trade secrets, and copyrights. As things stand today, works created by California state and local governments (like reports, video, maps, and so on) aren’t subject to copyright except in a few special cases. That ensures that Californians who funded the creation of those works through their tax dollars can use those works freely.

    The bill would change California from having one of the best policies on copyright of any U.S. state to among the worst. It authorizes public entities to register copyrights in their work. That means that state and local governments will have the power to seek statutory damages that can reach as high as $30,000 per infringement and potentially as life altering as $150,000 for willful conduct against people who use state-created materials. Therefore, if a citizen infringed on a state owned copyright by making a copy of a government publication, or reading that publication out loud in a public setting, or uploading it to the internet, they could be liable for statutory damages. The harms felt by this bill’s approach are wide ranging because it would take very little to claim that a work is protected by copyright law.

    Imagine local officials having the power to issue a DMCA takedown notice of YouTube videos of city council meetings simply because they did not like them (sounds crazy? read on).

    Chilling Effect on Free Speech

    We’ve seen many copyright claims that are in reality attempts to censor speech. California local and state governments are not exempt from the temptation of suppressing disfavored speech under a copyright claim as evidenced by the Teixeira case. In 2015, the city council of Inglewood had filed a lawsuit against a citizen (Teixeira) for uploading video clips of city council meetings to YouTube with his criticisms of the mayor. The lawsuit was dismissed by the court outright because California cities don’t have the power to claim copyright. The court went even further to explain how Mr. Teixeira’s use of the videos to criticize the mayor was a fair use. So while the litigation ended on the correct note (though it cost Inglewood taxpayers $110,000 in legal fees), it demonstrated how copyright law can be abused in the hands of government.

    If all works produced by state and local government from city council recordings to documents that embarrassed a local official become subject to copyright law, the Teixeira case really represents a harbinger of things to come. Citizens concerned with litigation threats will refrain from sharing or copying government works despite the fact that their tax dollars created those works. Worse yet is the perverse incentive for governments to litigate given the substantial money that can obtained through statutory damages.

    Restrictions on Open Government

    In an attempt to address this obvious potential for censoring the public by exerting copyright controls on state owned works, the bill provides an exemption for all works requested under the California Public Records Act (CPRA) but explicitly reserves all of the powers granted to a holder of a copyright (the holder in this instance being the government). That means a state or local government cannot resist a CPRA request for a document on the grounds of protecting copyright. But by explicitly reserving all of the exclusive rights given to a copyright holder, the state and local governments keeps extraordinary powers to restrain the ability for a citizen to distribute documents they obtain through a CPRA request. Those powers could be used in many ways such as denying a citizen the right to make copies, distribute copies, create derivative works of the original, or to publicly perform or display the work. While fair use might apply, its application can be uncertain and risky, and it’s no substitute for keeping copyright out of the mix altogether.

    A Massive Loss to the Public Domain

    Currently, California has one of the most citizen-friendly state copyright regimes on the books where a vast majority of state created works are free to the public with only five exceptions. All other audio, visual, and written work of state and local govenment employees is in the public domain upon creation and free for the public to use however they see fit. For the most part, this follows the federal model where works created by taxpayer money are by default owned by the public.

    The federal approach makes sense when we consider the goals of the intellectual property clause in the Constitution. The purpose of providing a limited government monopoly through copyright was to incentivize creativity and provide a market mechanism to monetize that creative expression. However, governments do not need an incentive because their source of funding comes from taxes and the government employees creating the works are already compensated by the public. The general policy rationale against governments from exerting copyrights over publicly funded works is founded on the premise that public funding means public property and that it belongs to citizens by default.

    EFF hopes that the state legislature will recognize the fundamental problems with AB 2880’s approach and forgo covering all state and local government works under copyright law. As the LA Times Editorial Board correctly noted at the conclusion of the Teixeira case,  “there’s something fundamentally outrageous about using tax dollars to sue a taxpayer over the use of a public record that taxpayers paid to create.”

    Source: California’s Legislature Wants to Copyright All Government Works | Electronic Frontier Foundation


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  • Stop the Copyright Creep: New Restrictions are Not the Answer to the Challenges of Digital Publishing

    Posted on by Azrael Comment

    Publishers are seeking to expand the copyright restrictions they can impose on news platforms, in the latest example of a phenomenon known as “copyright creep.” That kind of creep happens when lawmakers lose sight of the central purpose of copyright: to ultimately grow the cultural commons by ensuring that authors and their heirs can collect compensation for specific uses of their works. In line with that purpose, copyright is not a fundamental right so much as a bundle of restrictions we allow creators to impose for limited times, subject to numerous exceptions such as fair use which are intended to ensure that those restrictions don’t impede new expression and innovation. Copyright creep undermines that a delicate balance.

    In essence, copyright creep is an effort to expand copyright restrictions and/or allowing new parties to impose them in new ways. For example, civil law countries such as Europe and Latin America, may allow people who aren’t traditional rightholders to exercise copyright-like restrictions, calling them “related rights” (or “neighboring rights”), as distinct from “authors’ rights.” In the United States, we are more likely to give traditional rightholders new powers, such as the ability to sue people who circumvent technological protections on a work.  These experiments are dangerous: copyright and related rights are powerful tools, and the farther they reach the more likely they are to cause collateral damage to speech and innovation.

    We’ve written previous posts explaining the dangers of extending copyright powers –including the effective power to veto or censor a work — to performers and broadcasters. This post turns our focus to the case of publishers, and particularly to that of press publishers, who are the latest in a line of claimants throwing their political weight behind the copyright creep.

    Press Publishers in Europe Demand New Restrictions

    Just as efforts to extend the copyright term began in Europe, so too have efforts by press publishers to acquire new copyright-like powers. The European Commission has opened apublic consultation on whether new related rights should be afforded to press publishers, to buffer them against the economic upheaval they are experiencing with the move to digital. This upheaval—which is quite real—has seen circulation numbers of printed publications fall, as readers turn to online sources for news. The funding models that support these online sources are different, and presently less lucrative for publishers, than traditional newspaper publishing.

    The suggestion that these challenges could be addressed by changes to copyright law follows upon the introduction of laws in Germany and Spain to impose new restrictions known as “ancillary copyright.” These laws require payment to news publishers when excerpts accompanying links to their stories are published by third-party online aggregators, such as Google through its Google News service. Such brief excerpts would normally be free of copyright restrictions, under national copyright exceptions for quotation or fair dealing; ancillary copyright laws override this with new restrictions that uniquely benefits news publishers.

    However, these laws have swiftly proved a monumental failure. In Germany’s case, publishers waived their new powers when the alternative was that Google would simply stop publishing excerpts from their news stories, thereby cutting off their most important source of traffic. In Spain, lawmakers thought they could prevent a similar result by prohibiting news publishers from waiving their entitlement to compensation. But this tactic dramatically backfired, to the detriment of both users and publishers alike, when Google simply withdrew its Google News service from Spain altogether.

    It is quite unclear why a similar Europe-wide law would achieve different results, nor why news publishers, alone, should be the beneficiaries of a special override to the balance that copyright law strikes, carved out from the public’s right of quotation or fair dealing.

    But from the publishers’ point of view, their reasoning is quite simple—if music producers and performers, and most recently audiovisual performers, have gained new special neighboring rights of their own, why not them too? And, indeed, the more copyright creeps outward to include ever more beneficiaries, the more difficult it becomes to answer why one more beneficiary should be excluded.

    Once we lose sight of the guiding principle that copyright is an incentive for promoting creativity, there is no clear reason why news publishers can’t demand special payments from others in the value chain. Like the call for special broadcasters’ rights, it simply becomes another arbitrary demand for special interest regulations to prop up a powerful industry that finds its established business models threatened by technological change.

    We don’t mean to minimize the challenges that news publishers face—adapting to change is a tough ask; those who are quick to innovate may benefit (Medium, Buzzfeed) while others (Life,the New Republic) struggle and may fall. In the face of such struggle, it is natural for news publishers to seek a lifeline. (We see exactly the same behavior in other creative sectors also—for example, the strongest opposition to the European Commission’s plans to dismantle artificial national borders that restrict cross-border licensing of audiovisual content has come from filmmakers, whose business model relies on old-fashioned country-by-country licensing deals.)

    But the answer to the challenges of technological change is not denial, but adaptation. The successful business models that characterize today’s content market today—such as iTunes and Netflix—would not have come into being at all if new special interest regulations had been raised to protect incumbent music and movie publishers against Internet-based competition. Neither should news publishers be offered such protections that discriminate against nimble-footed competitors.

    If there is ever a case for the introduction of new copyright-like restrictions, news publishers haven’t made that case out. We fully agree that publishers should be recompensed for their work. However, it’s quite a stretch from recognizing the value of that work, to rewarding endowing them with separate legal powers that operate as an arbitrary tax on Internet platforms. Existing copyright law is already designed to enable news publishers to compete on a level playing field with other content publishers. We must strongly resist calls by interest groups to augment it with new restrictions that benefit them alone.

    The European Commission’s consultation on new rights for press publishers, which is also a consultation on the possible European extension of the “panorama exception” that permits photography of public works of art and architecture, will remain open until June 15.

    Source: Stop the Copyright Creep: New Restrictions are Not the Answer to the Challenges of Digital Publishing | Electronic Frontier Foundation


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