How Copyright Has Gone Copywrong

Yep, that’s right – I’m talking about copyright again. Specifically, I’m following up on my previous post, Copyright & Fan Creations.

In that post, I talked about how all fan art is copyright infringement – whether you sell it or not is irrelevant; as soon as you draw it, it infringes on copyright. Now it’s just a matter of how much damages you are liable for.

In ye olden times, copyright infringement was strictly a civil matter, up to the copyright holder to decide to sue – just like it is up to individuals in, say, a contract dispute to decide whether or not to sue. The state doesn’t typically get involved in civil matters (that’s why it’s called civil).

But now it does. Copyright infringement, though still nominally a civil matter, is being treated, prosecuted, and sentenced like a felony – right up there with robbing a bank or murder.

This is insane.

On top of that, copyright is extremely broad, and the only “exceptions” to the law (fair use) are actually just defenses, not actual exceptions – meaning they only come into play once you end up in court (and they are by no means guaranteed).

This is so heavily skewed that it’s a miracle anyone can produce anything new anymore without someone making a claim that it infringes (often just by resembling) another intellectual “property.” (In point of fact, this actually does happen quite a lot.)

This partly explains the resurgence of old, nostalgia-driven media lately – old comics made and re-made into movies, old franchises re-made, or even board games made into movies – because the copyright on these things are already well established, and companies don’t have to go through the potential trouble of investing in new properties, only to find out at the end that someone else has a copyright on something similar.

Keep in mind that I make my living from copyright & intellectual propery – so I’m not advocating for the total abolishing of copyright. What I’m calling for is some restraint, some sanity in copyright law.

For something that was intended to foster and encourage creative works & reward creators for doing so, it is now much too heavily skewed towards protecting existing creations.

Eventually, this is going to come back around and start biting the hands of those who advocated for stronger copyright laws.

Copyright is painted with such a broad brush, and it lasts for such a long time, that it is now having the opposite effect than what was intended – or what is necessary.

Creativity still happens, of course, but the rewards & incentives copyright was intended to give simply no longer exist (or are outweighed by the risks of infringement). Copyright is stuck 100 years ago, even while copyright enforcement is using cutting edge technology.

This is terrible, and it needs to change.

Copyright is important, don’t get me wrong, but we need to stop treating it as though it is some fundamental, inalienable right which must be protected at all costs. Copyright law needs to strike a reasonable balance between protection and re-use, one that encourages and rewards creation, without discouraging new creation for fear of potential infringement. And perhaps most importantly, it needs to set some clear guidelines on what is and is not permissible vis-a-vi re-use and fair use, instead of just saying “well, we’ll know it when we see it… in court.”

These sorts of changes will go a long way towards bringing copyright into the 21st century, helping it make sense again, and put a stop to the utter madness that is the state of copyright law and enforcement today.

Copyright & Fan Creations

Copyright law is complicated, but it’s something anyone who creates fan works should have a basic grasp of. This is my attempt at a layman’s guide.

This is a topic near & dear to my heart (I’ll let you guess why).

If you’re a frequent reader of my blog (or follower of me on Twitter), you probably already know that I have some… let’s just say strong feelings about copyright law. You might also know that I enjoy viewing & reading fan works (and may have even created some shameful ones of my own in the distant past – which will remain hidden FOREVER.)

One side effect of this is that over the years I’ve become very familiar with copyright law itself, which is a useful skill to have these days. So, I figured I’d write up a quick guide to help people out a little bit, because let’s face it… copyright law is weird, non-intuitive, and complicated.

(Oh, and just so we can get the annoying stuff out of the way first: I am not a lawyer, and this isn’t “legal advice,” it is just a layman’s opinion/summary. So don’t go out and get yourself in trouble based solely on what I say, and then come around and sue me, OK?)

If you need a quick refresher on this whole copyright process, I highly recommend you go watch C.G.P. Grey’s video on the subject. In fact, I might just embed the whole thing right here!

Everything is Copyrighted

Every original work, no matter how small or insignificant, is protected by copyright (at least in the US) the instant it is created. Everything from that crayon drawing you made when you were 3 to the amazing novel just finished yesterday. EVERYTHING.

The definition of what is covered by copyright is insanely broad – although it originally started out for things like books and paintings, it has evolved to cover pretty much everything you can “create.”

Who is the “Owner” of Copyright?

The basic rule here is, if you created it, you have copyright over it.

Things get complicated if it was a joint project – in general, to be safe, you should assume that everyone who worked on creating it shares the copyright equally (even if nothing was ever written down or formally agreed upon).

If you created the work “for hire,” that is, if you were paid to create it as part of your job, or if you were commissioned specifically to create it, then you DON’T own the copyright – your employer or the person who commissioned the work does.

Any Unauthorized Use is Copyright Infringement

With only a very few exceptions, if you don’t own the copyright to something, then you cannot use it in any way – and if you do, you are violating the copyright of the owner.

Important distinction: when an unauthorized person uses a copyrighted work, that is not “stealing,” it is a violation of the owner’s “copy right,” sort of like censorship is a violation of a person’s “free speech right.”

There are, of course, some exceptions (again, these are taken from US law and may not be applicable where you are). You might have heard of them – they’re called “fair use.”

Fair use, like most legal terms, doesn’t mean what it seems to mean on its face – that if the use is “fair,” then it’s OK to use a copyrighted work without the owner’s permission. Instead, it means that if the use falls within certain defined uses, then it’s OK.

Fair use is unfortunately one of those things that isn’t (and can’t) be narrowly defined – it’s one of those “you’ll know it when you see it” things, which means people end up in court arguing about it a lot of the time. Sadly, that’s just the way it is.

For a full treatment of what fair use is and means, check out Wikipedia’s article on the subject.

It Doesn’t Matter if You Make Money or Not

Well, that’s not entirely 100% accurate – whether you make money from what you are doing is a factor that is considered in determining whether your use falls under “fair use.”

Not earning money from something does not automatically make it “OK’ for you to use a copyrighted work – but in many cases it will affect whether the owner of the copyright decides to spend the time, money, and effort in suing you to stop your unauthorized work.

Some copyright owners will sue everyone who uses their works, no matter what – and unfortunately under the law it is their right to do so.

Others, however, will only go after those people who are profiting from their work or who are doing things that directly (and negatively) affect their own ability to profit from their work.

Hey, I never said this copyright thing was going to make sense.

You Can’t Disclaim It

That is to say, you can’t disclaim copyright infringement – if you are using a copyrighted work without the authorization of the owner, and your use does not fall under “fair use,” then it doesn’t matter what you say – you are still infringing the owner’s copyright, and they can seek legal recourse against you.

For example, I can’t post an entire episode of a TV show online and just say “this isn’t owned by me, I don’t have copyright, it belongs to Such-and-such, Inc.” I’ve still violated their copyright; my disclaimer is technically and legally meaningless.

Let me say that again: there is NO disclaimer you can add to the unauthorized use of copyrighted material that will make it OK.

As an aside: if you think your use falls under “fair use,” but you’re worried that the copyright owner might disagree, a disclaimer might help sway their decision whether or not to sue you, especially if you spell out your reasoning at least a little bit. But it’s not guaranteed, and if it goes to court, it will have absolutely no bearing on anything.

You CAN transform it

I started this article in the context of “fan creations,” and if you’re not quite sure what that means, well… I’m not sure I can help you with that. If you’ve been on the Internet for any length of time, chances are you’ve run across “fan creations.”

The thing is, most “fan creations” fall into another legal category when it comes to copyright, one that not a lot of people talk about. Specifically, I’m talking about transformative works.

This is another one of those areas of law that doesn’t have a narrow definition – another one of those “you’ll know it when you see it” things. But in general, if your work “transforms” the original work into something else, something which is original and not merely a copy, then it’s OK, and your work would not be considered copyright infringement.

To take my example from before, while I can’t post an entire episode of a TV show online without violating copyright, if I take that episode, chop it up and re-arrange parts of it (and leave out other parts), and replace the entire soundtrack (voice and effects) with my own recordings, maybe even mix in some original video of my own, and post that online… then this would probably be considered transformative, and not infringement.

Trademark Law makes everything 20% more confusing

One thing to watch out for is that sometimes trademark law gets mixed in, and that just makes everything more confusing.

For example, you might make a transformative work, remixing a TV show with your own dialog, or making your own works featuring original characters (but based on something that is copyrighted), and you could still run afoul of the law (and have your work taken down from whatever site is hosting it) because the owner has registered a trademark on a character’s name or likeness, or on the name of the world, or on some other aspect of the work.

This is particularly likely if there is any sort of “merchandising” involved – which, if it’s popular, there almost certainly is.

Trademark law is a bit more narrowly defined than copyright law, but it’s also more vigorously defended – because you can lose your trademark if you don’t make an effort to stop people from using it inappropriately, for example.

What about this crazy “Creative Commons” thing?

I’m glad you asked – creative commons is a great way to get around all this legal hullabalu, but it has to be done by the owner, not you (the person making the fan work). You can still release your own works under a creative commons license, though.

I’ll be talking about Creative Commons in more detail in a future article, so stay tuned for that.

The Bottom Line (or, tl;dr)

Copyright law (and its close sibling, trademark law) is a complicated subject, but one that anyone who does fan works of any kind should at least have a basic understanding of. It’s extraordinarily easy to violate copyright (even unintentionally), but at the same time, you don’t actually get in trouble for it unless the owner chooses to pursue you in court. This is because copyright law, unlike say murder or theft, is a civil, not criminal matter. (Well, at least it WAS… until the DMCA came along and changed that for some cases.)

If you’re creating almost any kind of fan work, you’re probably skirting the boundaries of copyright infringement, depending on how close your work mirrors the original work – and it doesn’t matter how many disclaimers you paste all over it. If it violates copyright, it violates copyright, no matter what your disclaimers say. This is – for better or for worse – the state of copyright law (at least in the US and any other countries with similar laws).

The rule of thumb I guess would be to try to be inspired by the works you are a fan of, rather than just copy them outright. Use that inspiration to create your own works. And if you must do stuff that straddles the border between violating copyright and not, then for goodness sakes don’t try to make money off of it… because that’s just an incentive for the copyright owner to try to stop you (sue you).

Finally, I don’t want this to discourage anyone from creating fan stuff – frankly, the world needs MORE creative works, not less, and I’m not trying to scare people with legal talk. Honestly, I personally think copyright law needs a bit of an overhaul. But until then, we’re stuck with the laws we do have, and being ignorant of them is no good either, so I hope this at least sheds a little light on the issue for everyone who reads it.

Why SOPA Must Die

SOPA (the Stop Online Piracy Act) Must Die – and here’s why.

[It’s taken me a while to get my thoughts in order regarding this issue, especially since so many others have already spoken about it more eloquently than I ever could. But this is such an important topic, and it has been weighing on my mind so heavily as of late, that I just couldn’t wait any longer – I had to put my thoughts down in words.]

SOPA (the Stop Online Piracy Act; H.R. 3261) is a bill before the United States House of Representatives. In brief, it allows both the Department of Justice and copyright holders to request court orders against websites that are allegedly distributing copyrighted material without permission, or are just enabling others to do so. These court orders can require payment processors (e.g., PayPal, Visa, MasterCard, etc.) to freeze accounts, force search engines to de-list the accused website, and require ISPs to block the site’s DNS records.

(Strangely enough, the act also contains some other similar provisions for websites selling discount prescription drugs and surplus military hardware, of all things.)

The freezing of accounts is bad enough, but the blocking of DNS records is perhaps the most frightening aspect of this bill, as this amounts to no less than outright censorship of the Internet, similar to that seen in places like China and Iran.

I have a number of concerns with this bill, but I will just stick to the top few, the ones I think are the most egregious.

Lack of Due Process

Perhaps the most offensive aspect of this bill is its removal of the protection of due process for the accused. The 5th Amendment to the U.S. Constitution guarantees the right to due process, but this bill almost completely denies that right to those accused under its terms.

The right to due process is one of those really important rights for any free society – right up there with freedom of speech, freedom of religion, and the right to a trial by jury.

SOPA circumvents due process by making it so that the government (on the say-so of a copyright holder) has the right to take away something of yours (your website, and/or your money) without giving you a chance to challenge this. The takedown actions authorized under SOPA are effective immediately, and there is little to no burden of proof on those asking for the takedown, and even less chance of retribution on those asking for the takedown should their claims later be proven false.

Immediate action can be understandable in some circumstances (child kidnapping, serial killers, etc.), but for something as mundane as copyright infringement, it seems a bit excessive.

Which brings me to my next point…

Excessively Broad

The text of SOPA is purposefully very, very, very broadly written. This, I think, stems from a desire to sort of “cover your bases,” by trying to be as broad as possible so there are no loopholes.

Unfortunately, in this case the broad language simply serves to make this bill applicable to almost everything, in the same way that a law that said “any type of death threat, no matter what counts as attempted murder” is applicable to almost anything. If our actual criminal statues were worded this broadly, every single one of us would be in jail by now, because there is not a one of us who hasn’t at some point in our lives done something that could be construed as a death threat – from angry words during an argument to giving a rude gesture while driving.

This sort of broad, sweeping language doesn’t work for criminal law, and it doesn’t work for SOPA either.

SOPA claims to be aimed at stopping large-scale for-profit copyright infringement, but the actual text means the law would apply to any type of copyright infringement, no matter how small or insignificant.

Stupidly Unenforceable

The Internet is a global network. But the people who wrote SOPA seem to think that the only part of the Internet that counts is the part that’s in the United States.

This is so stupidly untrue as to not require further elaboration.

SOPA would allow blocking of websites for copyright infringement… but it claims to be aimed at “foreign” websites. And the only blocking it authorizes is to block those sites from being seen by… Americans. So, it doesn’t actually “block” the sites, it just blocks them from being seen in America. Anyone in the rest of the world can keep on visiting the site, and download unauthorized copyrighted material to their hearts content.

Your guess as to how, exactly, this is supposed to “stop online piracy” is as good as mine.

Ultimately Ineffective

The website blocking authorized by SOPA is done at the DNS level – meaning that it simply stops DNS servers (only in the U.S., as I mentioned above) from resolving the site’s domain name to its numerical IP address.

Which means that if the site www.example.com was blocked, but you knew it’s IP address (e.g., 192.168.55.34), you could just type in the numerical address instead, and it would work just fine.

This is the most obvious example as to why SOPA would be ultimately ineffective at its stated purpose – that is, stopping “online piracy.”

This is a bit like covering your eyes while witnessing a crime, and saying  “I can’t see it, so it’s not happening.”

Some of the other aspects of the act – for example, forcing payment gateways (such as PayPal or Visa or MasterCard, etc.), to freeze the accounts of the website’s owners – might be somewhat effective, but again, remember that this only affects payment gateways within the United States. If a “foreign” website is distributing unauthorized copyrighted material for profit, chances are they are going to use a “foreign” payment gateway as well. So, once again, SOPA achieves nothing towards its stated goal.

It Is Censorship

Obviously, SOPA was not designed as censorship per se, but due to the way it is structured, it would effectively be censorship.

Remember, SOPA allows someone to claim you are violating their copyright, and have your site completely blocked.

This is true even if it turns out that you were not violating their copyright, or that your use of copyrighted material falls under “fair use.”

Now, imagine that you are a big website (like, say, YouTube, Facebook, Flickr, or Twitter) – are you going to want to run the risk of having your site suddenly blocked because one of your users uploaded something that is copyrighted (even if it is ultimately found to be fair use)? Of course not!

Even though sites like Facebook and YouTube are probably big enough to get unblocked fairly quickly, the simple threat of being blocked at a moments notice is enough to force them – out of simple self-preservation – to severely censor their users. They just can’t take the risk – the potential harm to them (having their site blocked) is too great to even risk letting users upload anything that might, possibly, maybe, be considered copyright infringement.

Out of Proportion

We’ve seen how SOPA is carrying a pretty big stick when it comes to enforcement. But let’s think for a moment about what it is meant to be stopping, exactly:

Copyright Infringement.

Not “piracy,” not “theft of intellectual property,” but simple infringement of copyright.

Copyright, remember, is not a “fundamental” or “universal” right. It is a (time-limited) government granted monopoly on things you create, to encourage people to create things, knowing that others can’t just take what you’ve done for free and make money from it. It’s an incentive to create – nothing more, and nothing less.

Now consider that SOPA would make copyright infringement a felony.

Think about that for a moment – this law would make illegally copying someone’s work be on the same criminal level as murder and kidnapping.

The other aspects of SOPA – blocking websites and freezing accounts – are also wildly out of proportion with the actual harm done.

Imagine if other laws worked the same way – for example, if a particular neighborhood was known to have a lot of shoplifters stealing, say, packs of gum. The whole neighborhood could find itself suddenly and without warning shut down – no power, no electricity, all roads blocked off and the whole neighborhood under martial law. And all this would happen on the say-so of the gum manufacturer who complained about their products being stolen frequently.

If that seems a bit excessive, consider that this is exactly what SOPA would do, except for copyright violation instead of petty shoplifting.

Online piracy – which is just shorthand for “copyright infringement on the Internet” – is not equivalent to physical theft, despite what some people would like you to believe. If anything, it is a lesser crime than physical theft, which is why SOPA is such a terrible idea – it is wildly out of proportion with the crime it is trying to prevent.

Unfairly Biased

If you have any doubt that the movie and music industries are the major reason why this bill exists, consider this: there is a clause in the act which specifically makes streaming copyrighted content a felony.

Remember that any type of content you can create is automatically covered by copyright. Your kindergartener’s crayon drawing? Covered by copyright. Your vacation photos and home movies? Covered by copyright. That sculpture you made back in art class in college? Covered by copyright. Even the words you’re reading right now are covered by copyright.

But what sorts of content can be “streamed?” Well, you can’t very well stream a drawing, or a photo, or a sculpture. But you can stream music and movies – which are the things that are specifically made into a felony by SOPA.

If that doesn’t convince you that this act was primarily written by and for the movie and music industries, I don’t know what will.

SOPA Must Die

There are so many things wrong with SOPA that I couldn’t hope to cover them all – but I’d like to think I’ve at least covered the big ones. On top of that, it doesn’t help that the people writing and debating this bill admit that they don’t understand the issues involved.

I’ve spent a lot of time trying to think of ways that SOPA could be revised to make it less awful, but there simply is too much wrong with it to be worth salvaging – which is why SOPA must die. It simply is not salvageable as a piece of legislation, and trying to revise it just risks having some of its harmful provisions slip through. It should just be thrown away, and some other more specific and less broad legislation could be drafted instead.

Now, let’s be clear – I’m not saying that online copyright infringement isn’t a problem; far from it. But SOPA is not the answer. We already have the DMCA, which is not perfect (far from it, in fact), but it at least does not have the same problems I’ve outlined here (in particular, the DMCA at least does provide for due process, and it is a much more “surgical” tool for combating copyright infringement, unlike SOPA, which is more like a tactical nuclear bomb in comparison).

Unfortunately, right now the only voices Congress is hearing in regards to these issues come from the movie and music industries, which as I’ve said before, are the ones for whom SOPA (and its Senate cousin, the PROTECT IP Act) was written.

SOPA must be stopped, and it is up to us to remind Congress of this simple and inarguable fact.

If you haven’t done so already, call or email your representative and let them know what you think. Hearing the voices of the people is the only way a democracy can work – so speak now, or forever hold your [CENSORED FOR COPYRIGHT INFRINGEMENT].

Our Dangerous Obsession with Identity

Over the past 10 years, we’ve developed an obscene obsession with “identity,” and for all the wrong reasons.

Over the past 10 years, we’ve developed an obscene obsession with “identity,” and for all the wrong reasons.

ID CardAt every turn it seems like there are more requirements for “proof of identity,” or requests for ID. Somehow we’ve gotten it into our collective consciousness that being sure of someone’s identity removes all risk of fraud, theft, or crime – but nothing could be further from the truth. In fact, stricter requirements for “proof of identity” are, largely, a complete and utter waste of everyone’s time.

Consider this example: the state where I currently live (New Jersey) has an insanely complicated “6 point system” for getting (or even renewing!) a driver’s license. (This is due, at least in part, to the stupid REAL ID Act, which I’ve written about before.) You need “6 points” worth of identification, with different forms of identification being given different point values. For example, a passport is worth 4 points, but a drivers license from any other state is only worth 1 point. And it’s not enough to just get the 6 points you need – you have to have at least one document from each of several categories! And as if that’s not enough, you need another separate document “proving” that you are a resident, which gives you no points, but you need it anyway.

This obsession with “proving identity” seems to stem from the misguided belief that knowing who someone is gives you some insight into what their intentions are. This is obviously a fallacy. So too is the idea that somehow people with sinister intentions would be unable to prove their identity (because all “bad guys” have fake names and use fake IDs, right?). Although a 5th grader would probably understand all of the holes in this logic, somehow this has become our de-facto operating principle at both the large corporation and government level.

Part of this, I think, stems from CYA syndrome, otherwise known as “cover your ass” syndrome.

You see, by forcing everyone to prove who they are, you do establish some sort of paper trail that can be useful after the fact in solving crimes that have already happened. But this is a very small benefit for a hugely cumbersome system of identity verification and re-verification.

It is somewhat of a tangent, but on a personal level I find this constant need to “prove” that I am who I say I am very insulting. This constant doubt of your sincerity and trustworthiness is, frankly, wearisome.

While it’s true that there are some holes in the systems we use for identification, our obsession with identity hasn’t really addressed these concerns in any meaningful way. People continue to get fake IDs, and those who wish to commit crimes (or perpetrate acts of terrorism) will do so, regardless of whether they were able to get a driver’s license or not. So in the end, this obsession with ID is really, truthfully, and honestly a complete waste of time.

You trust me on that, right?

Photo “ID Card” by Gareth Harper, used under the terms of the Creative Commons Attribution-NonCommercial-ShareAlike license.

What Happened to an “Open and Transparent” Government?

A government which is above the law is not a government – it is a tyranny.

Apparently, some things are still “too secret” to ever be allowed to be challenged in court. Of course, the effect of this is that the executive branch of our government can do pretty much as it pleases and claim “national security” or “sovereign immunity” to prevent any sort of oversight or review. Sound familiar?

This is sickening. Just sickening. A government with “secrets” can never be a “free” government. The more secrets a government has, the more oppressive it is towards its citizens, and the less “freedom” they will actually have.

This quote from the article I linked above sums it up pretty well:

What’s being asserted here by the Obama DOJ is the virtually absolute power of presidential secrecy, the right to break the law with no consequences, and immunity from surveillance lawsuits so sweeping that one can hardly believe that it’s being claimed with a straight face.  It is simply inexcusable for those who spent the last several years screaming when the Bush administration did exactly this to remain silent now or, worse, to search for excuses to justify this behavior.

Equality before the law means equality before the law for everyone – that must include government as much as it does the people they govern.

A government that is above the law is not a government – it is a tyranny.