Laurel L. Russwurm's Free Culture Blog

a writer, the copyfight and internet freedom

Posts Tagged ‘copyright infringement

Copyright, Fair Dealing and Paywalls

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When the paywall “protected” Blacklock’s Reporter sued the Government of Canada for an alleged copyright violation, the court concluded:

[8] Any reporter with the barest understanding of copyright law could not have reasonably concluded that the Department’s limited use of the subject news articles represented a copyright infringement. Indeed, the fair dealing protection afforded by section 29 of the Copyright Act, RSC, 1985, c C-42, is so obviously applicable to the acknowledged facts of this case that the litigation should never have been commenced let alone carried to trial.

The Honourable Mr. Justice Barnes, Blacklock’s Cost Award 20161221125911759

Howard Knopf summarizes the lawsuit thusly:

“The Attorney General of Canada has achieved a clear victory against Blacklock’s Reporter in the latter’s attempt to collect damages of $17,209.10 based upon its supposed institutional subscription rate because a few public servants in the Department of Finance received, read and distributed two Blacklock’s articles about a file they were closely involved in that had been sent to them by a Blacklock’s subscriber.”

my Canadian copyright symbolCopyright law in Canada is at minimum confusing to most non-lawyers, even those of us involved in content creation. As a self publishing author, and to some extent a citizen journalist, it is important that I have more than the barest understanding of copyright law. Like most self publishing bloggers lacking legal staff, I’d rather be writing than spending time in court, so when in doubt I’m inclined to self censor for my own protection, something known as copyright chill. Since I’ve been actively weighing copyright law as it applies to me and my own work (since Canada’s 2010 Copyright Consultation), I am always interested in how copyright issues play out.

So I was particularly curious about what Justice Robert Barnes described as the “obviously applicable” fair dealing protection.

(j) What occurred here was no more than the simple act of reading by persons with an immediate interest in the material. The act of reading, by itself, is an exercise that will almost always constitute fair dealing even when it is carried out solely for personal enlightenment or entertainment;

The Honourable Mr. Justice Barnes’ Judgement and Reasons
re: BLACKLOCK’S REPORTER (Plaintiff) and CANADA (Defendant) [download PDF]

In other words reading (or by extension viewing, or listening to) copyrighted material is allowed under Canada’s Fair Dealing provisions, even when such material is locked behind a paywall. Sharing such material is another matter. A large part of the reason the subscriber who shared the articles was not held liable seems to be Blacklock’s failure to adequately spell out in its terms of service what a subscription does or does not allow. Although the judgement draws attention to the fact:

(k) While the public interest is served by the vigilance of the press, copyright should not be a device that serves to protect the press from accountability for its errors and omissions. The Department had a legitimate interest in reading the articles with a view to holding Blacklock’s to account for its questionable reporting.

The Honourable Mr. Justice Barnes’ Judgement and Reasons
 re: BLACKLOCK’S REPORTER (Plaintiff) and CANADA (Defendant) [download PDF]

Excess Copyright tells us:

“…the amount claimed by the Government, which was “$115,702.30, based on 70% of the actual value of professional hours expended in the defence of the claim and including disbursements of $7,020.98.”

Blacklock’s Must Pay $65,000 for Litigation that “should never have been commenced let alone carried to trial”

Although Mr. Knopf views this as a victory, from my perspective it’s not.

Although I am not a lawyer, there seems to be a suggestion that, had the TOS been worded differently, the subscriber’s decision to share the articles– in spite of holding the publisher to account– such an action may well have been construed as illegal copyright infringement, specifically circumventing Technical Protections Management (TPM). The plaintiff sought to make this latter argument, but the Judge didn’t allow it.

To my mind, the biggest problem with copyright law is the court system.  Fighting a copyright claim in court wouldn’t only eat into an independent creator’s time, if it costs $115,702.30, $65,000 or even the two thousand dollar settlement the Government offered would be beyond the means of most.
Court engraved in courthouse wall

It doesn’t matter whether a copyright infringement lawsuit has merit or is spurious. The Government of Canada may have the wherewithal to fight such matters in court, but this is hardly true for the vast majority of citizen journalists, self publishers or bloggers.  Because copyright battles are fought through the legal system, creators, bloggers and self publishers are at an enormous disadvantage to large well funded multinationals or copyright trolls with predatory business models.

There are some websites I access that are partially locked behind paywalls, but publish some articles publicly. I decided a long time ago I don’t want to share links to sites that are locked behind paywalls, or even registration walls, because I don’t want to compel my readers to have to sacrifice their money or privacy to be informed. Because of this, I have made it a point not to subscribe to any paywalled site, simply to ensure I don’t share such links inadvertently.  But now I am wondering, are subscribers aware that sharing information — perhaps even in a quotation — from such sites risks charges of copyright infringement?    If so, it is surely a disincentive to subscriptions.

C-11 ~ It isn’t just a danger to Fair Dealing

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Nora Young interviewed CIPPIC’s David Fewer on her CBC Spark program, and one of the points that they discuss is the worry that TPMs (digital locks/DRM) will stop Canadians from doing “what we what we would ordinarily be allowed to do under fair dealing.”

But it is more than that.

Fair dealing is only part of it. Under Bill C-11 TPMs will stop us from doing things we are legally allowed to do, including things that have nothing to do with fair dealing.

If it is illegal to circumvent TPMs, Canadians will be prevented from accessing content that is in the public domain, or work that has been licensed to share. This is already happening now.

As a writer, I’ve been appalled that books in the public domain have been locked behind TPMs. Bill C-11 will make it illegal to circumvent this kind of TPM.  Even using a pen and paper to hand copy the words of a public domain work like The Happy Prince if TPMs are present, will be copyright infringement – and illegal – when Bill C-11 becomes law.

Bill C-11 will make it possible for Microsoft to prevent people from replacing the Windows Operating System that comes preloaded on most computers with free software of our choice ~ like Linux. So Bill C-11 could very easily be used to kill free software in Canada.

Even worse, if it illegal to circumvent TPMs, it will be possible to prevent Canadians from accessing content that is our own.

When my sister first got Windows 7, the software wouldn’t allow her to transfer photos of her own kids, from her own digital camera, to her own computer. That’s a real life example of how TPMs can go terribly wrong. Because the assumption behind TPMs is that we are all infringing copyright, so the default is always maximum. Had Bill C-11 been the law at that time, my sister would have had to break the law to circumvent the TPMs (that wrongly accused her of copyright infringement) to transfer her own photographs — which she unquestioningly owned the copyright for — from her own digital camera to her own computer — both devices being her own physical property.

Just now I’m reading Lawrence Lessig’s “Free Culture,” where he writes about the MPAA argument that Intellectual Property should enjoy the same level of protection that physical property does.

“Creative property owners must be accorded the same rights and protection resident in all other property owners in the nation. That is the issue. That is the question. And that is the rostrum on which this entire hearing and the debates to follow must rest

— Jack Valenti, MPAA president quoted in Lawrence Lessig’s “Free Culture”

But Bill C-11 goes far beyond equality, and clearly tips the balance so our physical property rights are overwhelmingly quashed in favour of the rights of Intellectual Property owners.

So it isn’t a very big jump to see that Bill C-11 will have the capacity to suppress independent creators from releasing our own work, because we won’t have the keys to the digital locks.

Enabling technology to enforce the control of copyright means that the control of copyright is no longer defined by balanced policy.

— Lawrence Lessig, “Free Culture

Smashwords Censorship: Unintended Consequences

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Smashwords distributes eBooks created by self publishing authors to the various proprietary eBook platforms.

Recently PayPal has told Smashwords that it must:

“..remove fiction that contains themes of bestiality, rape and incest”

Smashwords Member Alert – March 5, 2012

Is censorship ever advisable?

Ratings systems have long proved an effective method for preventing people from stumbling on material that they would find offensive. I grew up in a small rural community with a very strong religious presence. Still, our local video store had a back room where those so inclined could access material that might otherwise offend. There were also adult magazines nestled on the top shelves at the back of magazine racks in local variety stores. I know that because I clerked in such a store in high school, and I remember my profound shock the first time an Old Order Mennonite man arrived at the store in a horse drawn buggy and proceeded to purchase the latest issue of “Hustler.” But although I am quite sure that the elders of his church would not have been pleased, in a free society, adults must be accorded the right to choose for themselves.

Else we’ll certainly end up in a world very much like the one George Orwell tried to warn us against.

thumbnail ebook cover

Although not classed as erotica, my own debut novel, Inconstant Moon, actually deals pretty prominently with the crime of rape.  If I hadn’t already taken it off Smashwords myself (because I will not deal with PayPal) it could very easily have been one of the titles censored.

TechDirt considers that Paypal is just following orders Paypal Pressured To Play Morality Cop And Forces Smashwords To Censor Authors, while the Electronic Frontier Foundation is planning a legal challenge.

But in an email to Smashwords authors, founder Mark Corker indicates he is negotiating with PayPal, and although

“Many Smashwords authors have suggested we find a different payment processor. That’s not a good long term solution, because if credit card companies are behind this, they’ll eventually force crackdowns elsewhere. PayPal works well for us. In addition to running all credit card processing at the Smashwords.com store, PayPal is how we pay all our authors outside the U.S. My conversations with PayPal are ongoing and have been productive, yet I have no illusion that the road ahead will be simple, or that the outcome will be favorable.”

— Mark Corker,  Smashwords Author/Publisher Update – March 2, 2012

So  readers and writers have been duly warned that Smashwords will cave to PayPal demands rather than switch payment providers should negotiations fail.   That’s a business decision, and Smashwords can legally make it, but make no mistake: PayPal will not be the entity censoring eBooks, that task will fall to Smashwords.

Unintended Consequences

Copyright "c"

Smashwords is an internet company operating in the United States, and as such is subject to the DMCA.

Under the DMCA, You Tube is not liable for copyright infringing material that users upload, because YouTube doesn’t create the videos, it simply distributes them online. So much material is uploaded to YouTube, the cost of YouTube having to police the content of its users would instantly put YouTube out of business. Thus the DMCA allows Internet companies like YouTube an exemption from responsibility for the content they distribute, because these companies can’t reasonably assess such content for legal infractions.

The DMCA defines such a distributor as a “safe haven” so long as it complies with the DMCA.   So YouTube only takes down material when it receives a specific DMCA take down notice.

Smashwords relies on its automated processes to do what it does, and so far, no human has had to go through and vet every submission. But by accepting this PayPal censorship directive, Smashwords would assume responsibility for the content of the books it distributes.

Seems to me, the unintended consequence of a Smashwords decision to censor the books it distributes would remove the “safe haven status” Smashwords enjoys under the DMCA. Which would mean that Smashwords will have no choice but to police every title it distributes, or else be legally liable for any alleged copyright infringements.