Illegal Downloading and the University–again

In a week or so Dean of Students, David Strauss, will be sending a message to all WSU students reminding them that they should not be downloading copyrighted material (books, music, movies, software) illegally, and that the owners of those copyrights (especially of movies–MPAA and music–RIAA) are out looking for sites that distribute those files and will come after the distributors, which, in many cases, are the same people who did the downloading in the first place. This is because the software that handles downloading (BitTorrent and its competitors) not only helps you download content, but also makes it available to others to download from you.

My friend and colleague Tracy Mitrano, IT Policy guru at Cornell, recently wrote a great article in Inside Higher Ed on this issue.  As Wayne State does, Cornell sends out a message (as required by the Higher Education Opportunity Act of 2008) on the topic, and she usually asks students to write her with questions. The article is primarily a response to a question she got, and her answer is so thoughtful, I’d like to simply post a link to it here:

http://www.insidehighered.com/blogs/law-policy-and-it/message-behind-annual-copyright-notice

Chasing illegal downloading: It’s not just for Universities anymore

You probably noticed the cheerful note C&IT sent yesterday warning you about illegal filesharing. As you probably know, the RIAA and MPAA are attempting to combat the sharing of their copyrighted files through underground distribution systems such as BitTorrent. They do this by posing as downloaders and trolling for their copyrighted files, then sending an email to the owner of the network that is being used. For many years they have sent emails to Wayne State saying they have found illegal files on some IP address. C&IT is required by the Digital Millennium Copyright Act to find out who was using that IP address and send a ‘take-down’ notice to that person, ordering them to remove the offending files, and we have a fine, automated process to do just that. As we mentioned in the message, there may also be sanctions, such as fines if the address resolves to someone in the Residence Halls, and students are subject to the Student Conduct Code.

Okay, you’ve heard all of this before. What you may not have heard is that RIAA and MPAA are now going after the other internet service providers, beyond universities. They have made agreements with Comcast, AT&T and so on to do the same thing to users of those services (which includes pretty much everybody reading this). So, if you are sharing files illegally, they may go after you. There is a ‘six strikes and you’re out’ rule (i.e. they will warn you six times before they start limiting your download speed). You can read the details here:

Techdirt

A word to the wise.

A ‘Fair Use’ Victory

Over the past couple of years there has been a major legal debate between organizations representing authors and publishers on the one hand, and a couple of major Internet entities–Google and the Hathi Trust.

The Hathi Trust, based at Michigan, is a coalition of a number of large universities. Its mission is ‘to contribute to the common good by collecting, organizing, preserving, communicating, and sharing the record of human knowledge.’ and its goals include:

  • To build a reliable and increasingly comprehensive digital archive of library materials converted from print that is co-owned and managed by a number of academic institutions.
  • To dramatically improve access to these materials in ways that, first and foremost, meet the needs of the co-owning institutions.
  • To help preserve these important human records by creating reliable and accessible electronic representations.

Essentially, Google helped Michigan and the other universities virtually scan all the books in their libraries in order to make them searchable and store their contents electronically. The idea was to make the books accessible to visually impaired students, and to allow researchers to search the entire corpus of texts. Linguists, for example, search written texts for early uses of particular words, or when studying grammatical constructions. Needless to say, such research would be impossible if it was necessary to read through every book in the U of M Library to find instances of the word there used as a subject of verbs other than be, appear, and seem (this happens to have been part of my dissertation research). And, of course, my doing that research would not have had any effect on the sales of the physics texts, novels and encyclopedias of fungi that are located in the library and were scanned. But the Authors’ Guild argued that this scanning reduced their sales and deprived them of income.

Last week U.S. District Judge Harold Baer Jr. (Southern District of New York) ruled that this scanning constituted ‘fair use’ of copyrighted material, and threw the Authors’ Guild suit out. He wrote ‘I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP [mass digitization project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA [Americans with Disabilities Act].’ (The whole decision is available here.)

The notion of ‘transformative use’ is crucial in permitting use of copyrighted material without permission. It is what allows parodies, criticism, and now, crucially, linguistic and sociological research. It’s hard to imagine what the world would be like if a book review required the author’s permission to quote from the book being reviewed.

And, as was pointed out in Inside Higher Ed, this is the third major copyright case that universities and scholars have won. You may recall from a year or so ago that some major textbook publishers sued the University of Georgia for putting too much material into online coursepacks (inside Blackboard, incidentally). The judge in that case threw out most of the Association of American Publishers and the Copyright Clearance Center’s lawsuit also. And finally, a group representing documentary film makers failed in a lawsuit against UCLA.

Ultimately I think the major ‘take-away’ is that when scholars use copyrighted material in their research and teaching they are not ‘stealing’ it, and their use of it is unlikely to affect royalties going to authors. This makes these cases different from the music and movie industry’s war against ‘unauthorized’ downloading (whatever you think of the morality/legality of those cases).

Very interesting news articles about Copyright Law

Over the past couple of days there have been a couple of interesting news and commentary articles about copyright and intellectual property issues that folks might be interested in.

First, it turns out that the ‘enforce copyright enthusiastically’ folks have been playing a little fast and loose with the facts on unemployment caused by illegal downloading of movies:

http://www.techdirt.com/articles/20120607/10055319241/feds-say-we-need-stronger-ip-laws-because-grocery-stores-employ-lots-people.shtml

It seems the ‘millions of workers’ thrown out of work because someone downloaded a bootleg copy of Prometheus weren’t actually thrown out of work after all. In fact they weren’t even in that line of business. And they weren’t (necessarily) unemployed, either.

Not that I’m condoning illegal downloading. I’m just pointing out that the MPAA and their ilk (and their friends, the Department of Commerce) might be exaggerating the amount of damage that it causes.

Second story: The guys at South Park produced a parody of a music video and the owners of the original video sued, claiming copyright infringement. South Park defended themselves by claiming fair use (parody being one of the official escape clauses).  The lawsuit was denied. It’s nice to see freedom of speech getting a little boost these days. The plaintiffs then appealed the original judgment, and the appeals court not only upheld the decision, but made the plaintiffs pay court costs. If you don’t mind wading through some of the legalese, the Appeals Court decision is rather fun to read (it’s clear the judge was enjoying himself). Here’s the news article covering the decision:

Attorney Fee Awarded in ‘What What (In the Butt)’ Case

A company that unsuccessfully sued the producers of the “South Park” television program for copyright infringement must pay the defendants’ attorney fees, a federal judge in Milwaukee ruled. The makers of the “What What (In the Butt)” music video had claimed that a “South Park” parody of the song infringed the copyright. The court found that the parody fell into copyright law’s “fair use” provisions, and rejected all of the claims of Milwaukee’s Brownmark Films LLC.
In his attorney-fee award order, U.S. District Judge J.P. Stadmueller said he thought Brownmark’s motivation in filing the suit was “questionable” and demonstrated an attempt to use the threat of litigation to force a licensing agreement. He said that awarding attorney fees to the defendants — which included Viacom Inc. — “would defer future action that is similar to Brownmark’s.”
The judge did cut almost $13,000 from the fee award, saying that some of the billed hours were duplicative of earlier work by the firm. The case is Brownmark Films LLC. v. Comedy Partners, 2:10- cv-01013-JPS, U.S. District Court, Eastern District of Wisconsin (Milwaukee).
Source: http://www.bloomberg.com/news/2011-12-08/nestle-rim-icann-yahoo-south-park-intellectual-property.html

And here’s a link to the actual decision:

http://www.scribd.com/doc/75510869/Brownmark-Films-v-Comedy-Partners-Fee-Award
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