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Content Groups Link Copyright Infringement to Net Neutrality Rules

December 8, 2009 – The Songwriters Guild of America is the latest intellectual property-focused group weighing into the debate about whether the government should take steps to regulate internet access to support so-called Net neutrality principles. The group claims that the rules, which have been proposed by the Federal Communications Commission, would create a legal safe harbor for copyright invasion.

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December 8, 2009 – The Songwriters Guild of America is the latest intellectual property-focused group weighing into the debate about whether the government should take steps to regulate internet access to support so-called Net neutrality principles. The group claims that the rules, which have been proposed by the Federal Communications Commission, would create a legal safe harbor for copyright invasion.

“While these rules require that all lawful uses be treated “in a non-discriminatory manner,” they ignore whether or not the usage is unlawful. The result is the property created and owned by songwriters like me is discriminated against,” songwriter Phil Galdston said in a statement.

The guild said the rules would “restrain Internet service providers from fighting illegal file sharing on their networks.”

Songwriter Gordon Chambers said 70 percent of the volume of traffic on broadband networks is peer to peer file sharing, and is generated by 5 percent of network users. Permitting a “small percentage of looters to control a majority of a network’s bandwidth for the purpose of theft, is unacceptable, let alone the proper subject for permanent protection,” he said.

The songwriters and the president of the Songwriters Guild of America recently testified before the New York City Council against a resolution that would express support for the FCC concept of Net neutrality.

The Songwriters Guild of America is not the only group representing those with an interest in protecting intellectual property that has voiced opposition against the net neutrality or open internet movement, which has been supported by the Obama Administration.

The Copyright Alliance said in September 2009 testimony (PDF) that “government promotion of broadband deployment must encourage meaningful distinctions between lawful and unlawful traffic.”

The group said it supported FCC Chairman Julius Genachowski when he said, “It is vital that illegal conduct be curtailed on the Internet. I do not interpret the goals of net neutrality as preventing network operators from taking reasonable steps to block unlawful content.”

In March of 2008 Motion Picture Association of America Chairman and CEO Dan Glickman said new tools are enabling intellectual property holders to work with internet service providers to prevent illegal activity but net neutrality efforts threaten this progress.

“It’s a clever name,” said Glickman, referring to Net neutrality. “But at the end of the day, there’s nothing neutral about this for our customers or for our ability to make great movies—blockbuster first-run films—in the future.

“If Washington had truth in labeling, we’d call this proposal by another name: Government regulation of the Internet. Government regulation of the Internet would impede our ability to respond to consumers in innovative ways, and it would impair the ability of broadband providers to address the serious and rampant piracy problems occurring over their networks today,” said Glickman.

Citizens Against Government Waste has also said Net neutrality would weaken intellectual property protections. “If an Internet service provider is required to allow all traffic to flow, that will include the illegal uploading and downloading of music, movies, books or any other protected intellectual property,” the group said in 2008.

Recording Industry Association of America CEO Mitch Bainwol said in testimony last year on proposed Net neutrality legislation that he would encourage “Internet service providers to work with the content community to adopt effective marketplace solutions to digital copyright theft — the root cause of any network congestion — but added that if voluntary agreements could not be reached, government action may be necessary.”

Editor’s Note: Broadband Census News is planning to hold a special event, “Net Neutrality, Copyright Protection, and the National Broadband Plan Town Hall Meeting,” on January 19, 2010, from 8 a.m. to 11 a.m. (program from 9 a.m. to 11 a.m.), at Clyde’s of Gallery Place. To register for the event, which includes breakfast from 8 a.m. to 9 a.m. To register, click here.

Winter covered technology policy issues for five-and-a-half years as a reporter for the National Journal Group. She has worked for USA Today, the Washington Times, the Magazine Group, the State Department’s International Visitor’s Program, and the Council on Hemispheric Affairs. She also taught English at a university in Tegucigalpa, Honduras.

Copyright

Public Knowledge Celebrates 20 Years of Helping Congress Get a Clue on Digital Rights

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Screenshot of Gigi Sohn from Public Knowledge's 20th anniversary event

February 27, 2021 – The non-profit advocacy group Public Knowledge celebrated its twentieth anniversary year in a Monday event revolving around the issues that the group has made its hallmark: Copyright, open standards and other digital rights issues.

Group Founder Gigi Sohn, now a Benton Institute for Broadband and Society senior fellow and public advocate, said that through her professional relationship with Laurie Racine, now president of Racine Strategy, that she became “appointed and anointed” to help start the interest group.

Together with David Bollier, who also had worked on public interest projects in broadcast media with Sohn, and is now director of Reinventing the Commons program at the Schumacher Center for a New Economics, the two cofounded a small and scrappy Public Knowledge that has become a non-profit powerhouse.

The secret sauce? Timing, which couldn’t have been better, said Sohn. Being given free office space at DuPont Circle at the New America Foundation by Steve Clemmons and the late Ted Halstead, then head of the foundation, was instrumental in Public Knowledge’s launch.

The cofounders met with major challenges, Sohn and others said. The nationwide tragedy of September 11, 2001, occurred weeks after its official founding. The group continued their advocacy of what was then more commonly known as “open source,” a related grandparent to the new “net neutrality” of today, she said.

In the aftermath of September 11, a bill by the late Sen. Ernest “Fritz” Hollings, D-S.C., demonstrated a bid by large copyright interest to force technology companies to effectively be the copyright police. Additional copyright maximalist measures we launched almost every month, she said.

Public Knowledge grew into something larger than was probably imagined by the three co-founders. Still, they shared setbacks and losses that accompanied their successes and wins.

“We would form alliances with anybody, which meant that sometimes we sided with internet service providers [on issues like copyright] and sometimes we were against them [on issues like telecom],” said Sohn. An ingredient in the interest group’s success was its desire to work with everyone.

Congress didn’t have a clue on digital rights

What drove the trio together was a shared view that “Congress had no vision for the future of the internet,” explained Sohn.

Much of our early work was spend explaining how digitation works to Congress, she said. The 2000s were a time of great activity and massive growth in the digital industry and lawmakers at the Hill were not acquainted well with screens, computers, and the internet. They took on the role of explaining to members of Congress what the interests of their constituents were when it came to digitization.

Public Knowledge helped popularize digital issues and by “walking [digital information] across the street to [Capitol Hill] at the time created an operational reality with digitization,” said Bollier.

Racine remarked about the influence Linux software maker Red Hat had during its 2002 initial public offering. She said the founders of Red Hat pushed open source beyond a business model and into a philosophy in ways that hadn’t been done before.

During the early days of Public Knowledge, all sorts of legacy tech was being rolled out. Apple’s iTunes, Windows XP, and the first Xbox launched. Nokia and Sony were the leaders in cellphones at the time, augmenting the rise of technology in the coming digital age.

Racine said consumers needed someone in Washington who could represent their interests amid the new software and hardware and embrace the idea of open source technologies for the future.

Also speaking at the event was Public Knowledge CEO Chris Lewis, who said Public Knowledge was at the forefront of new technology issues as it was already holding 3D printing symposiums before Congress, something totally unfamiliar at the time.

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Copyright

In Google v. Oracle, Supreme Court Hears Landmark Fair Use Case on Software Copyright

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Photo of Tom Goldstein from the Peabody Award used with permission

October 12, 2020 – The Supreme Court on Wednesday publicly struggled with the copyrightability of software in a uniquely contested case between Google and Oracle, the outcome of which could play a significant role in the future of software development in the United States.

The oral arguments were the culmination of a battle that started 10 years ago, when tech company Oracle accused Google of illegally copying its code. Oracle owns the copyright to the Java application programming interface that Google utilized to establish a new mobile operating system.

The company has sued Google for more than $9 billion in damages.

Yet Google claimed a “fair use” defense to its copying. Google copied less than 1 percent of the Java code. Even though the law generally treats computer programs as copyrightable, Google’s attorney before the Supreme Court, Thomas Goldstein, said that by adapting Oracle’s code to serve a different purpose, Google’s use was “transformational,” and entitled to fair use protections.

Goldstein said that this form of unlicensed copying is completely standard in software, and saves developers time and lowers barriers to innovation.

He referenced a famous Supreme Court precedent about public domain works, Baker v. Selden, which in 1880 declared that once information is published to the public, the public has a right to use it.

“Google had the right to do this,” said Goldstein.

Still, Oracle attorney Joshua Rosenkranz asserted that the Java code is an expressive work eligible for copyright protections. Rosenkranz further argued that Google’s use of the code was not transformational.

Justice Sonia Sotomayor appeared to suggest that jurors in the lower court case properly found Google’s use to be transformational because it took the APIs from a desktop environment to smartphones.

“Interfaces have been reused for decades,” said Goldstein. Google had to reuse Oracle’s code to respond to interoperability demands.

“It has always been the understanding that this purely functional, non-creative code that is essentially the glue that keeps computer programs together could be reused, and it would upend that world to rule the other way,” he said.

Supreme Court observers said that the high court appeared leaning toward upholding the 2016 jury verdict vindicating Google’s fair use defense.

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Copyright

Fair Use is Essential But its Enforcement is Broken, Says Senate Intellectual Property Subcommittee

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Screenshot of Grammy-winning recording artist Yolanda Adams from the hearing

July 28, 2020 — “Fair use” is an essential doctrine of copyright law that is unevenly applied, said participants in a Senate Intellectual Property Subcommittee hearing Tuesday.

The hearing, “How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use,” saw participants discuss whether the Digital Millennium Copyright Act still permits fair uses of copyrighted content that would be otherwise infringing.

The DMCA, passed in 1998, criminalizes the manufacture, sale or other distribution of technologies designed to decrypt encoded copyrighted material. This ban on anti-circumvention tools does not appear to account for fair use.

The fair use exception to copyright law allows the republication or redistribution of copyrighted works for commentary, criticism or educational purposes without having to obtain permission from the copyright holder.

However, Joseph Gratz, partner at Durie Tangri, said that fair use often clearly applies but is not enforced, leaving users of the legally obtained content to deal with automated content censors.

“Fair use depends on context, and machines can’t consider context,” he said. “A video, for example, that incidentally captures a song playing in the background at a political rally or a protest is clearly fair use but may be detected by an automated filter.”

When an automated filter detects a song on a platform like YouTube, it redirects advertising revenue from the creator of the video to the creator of the song, often erroneously.

Rick Beato, who owns a music education YouTube channel with over one-and-a-half million subscribers, said that he does not receive ad revenue from hundreds of his videos.

“One of my recent videos called ‘The Mixolydian Mode’ was manually claimed by Sony ATV because I played ten seconds of a Beatles song on my acoustic guitar to demonstrate how the melody is derived from the scale,” he said. “This is an obvious example of fair use, I would argue.”

Grammy-winning recording artist Yolanda Adams testified that she sees the problems of fair use employment as about more than simply receiving money.

“As a gospel artist, I’m not just an entertainer,” she said. “I see my mission as using my gift to spread the gospel — so for me, fair use is not just about money. It’s about access.”

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