I read a Slashdot article a few moments ago that links to an NYTimes blog post by David Pogue discussing in stark terms a gap in how college students see copyright law when compared to the author. The discussion on the post is marvelous; one commenter brings up John Tehranian’s recent paper, “Infringement Nation: Copyright Reform and the Law/Norm Gap” (PDF). This paper assesses the daily legal liability of everyday actions of a hypothetical law professor:

All told, he has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of potential criminal charges). There is nothing particularly extraordinary about John’s activities.

The sharp commenter continues:

The point is that copyright law is way behind what is the norm in actual day-to-day life, and part of it is that “fair use” is not part of the law, it’s part of case law, which is far behind practice.

Pogue at the New York Times illustrates what we have long hoped: Many students already believe in some of the things Students for Free Culture does. We want a culture “where all members are free to participate in its transmission and evolution, without artificial limits on who can participate or in what way.” I personally think that the best way to pull people into the future of a culture based on sharing is not to simply take without asking, as in the “download a DVD without permission” example, but to both (1) make people understand the value of sharing their work, and (2) supporting those that do, like the growing numbers of people sharing their creative work under permissive licenses; many of our chapters agree.

We have dozens of active chapters today. Somehow the work we have done has often seemed distant or academic, perhaps deservedly so. But sometimes we’ve made our points in brutally obvious ways, from classic projects like Barbie in a Blender or Cereal Solidarity to newer projects like the Day of Action for Open Access to scholarly literature. Unified by a vision of sharing and openness, our students fight for their own rights to share their own work, argue that their universities and colleges could share more with the world, and explain why more access to knowledge and culture would be good public policy.

On more personal notes:

To all who have participated in chapters of Students for Free Culture, or worked with us on events, or helped organize other chapters (like me, our humble web team leader): Thanks. It’s refreshing to see our active members range from the pre-historic Nelson, whose first Free Culture chapter was founded before the name “Free Culture” described us, all the way to people like Tim who started his chapter this calendar year. I’m personally proud that we’re continuing the tradition of drawing from a broad group of students: filmmakers, technologists, law students, and artists, just to name a few labels.

To Downhill Battle: I miss your inspiring work and your amazing name.

To Jesus: Happy Birthday today (observed).

Free Culture.org is joining the call for a chain-wide boycott of Regal Cinemas over their draconian punishment of a 19 year-old girl caught taping 20 seconds of the Transformers film. We demand that Regal Cinemas drop all charges against Jhannet Sejas, and that the entertainment group issue a full apology to the teen.

From a recent Washington Post article on Jhannet’s arrest:

“I was terrified,” said Sejas, her voice breaking. “I was crying. I’ve never been in trouble before.” She said the assistant manager of the theater saw her holding up the Canon Power Shot and reported it to the general manager, who called police.

Sejas said she had no intention of selling the 20-second film clip. She just wanted to show it to her 13-year-old brother, who had said he wanted to see the movie. She was shocked when the officers showed up.

Sejas faces up to a year in jail and a fine of up to $2,500 when she goes to trial this month in the July 17 incident. Arlington police spokesman John Lisle said it was the decision of Regal Cinemas Ballston Common 12 to prosecute the case, a first for Arlington police.

While the question of whether or not Jhannet’s Transformers clip counts as fair use (it is our opinion that it does, as it is private, non-commercial use of an unsubstantial portion of the original), there is another question we should be asking, and that is whether or not we should be patronizing a corporation that insists on pressing charges against someone who is clearly not the intended target of anti-piracy laws. Regal Cinemas should be ashamed of itself and its silly zero-tolerance policy.

Click here to Digg the story and help publicize our Boycott!

Click here for a page where you can find Regal Cinemas in your area.

We wish Jhannet the best of luck in defending herself against Regal Cinemas and hope that the chain will soon realize how inappropriate its actions were.

NBC recently filed comments for the FCC recommending that ISPs be required to screen all the traffic passing over their network for copyright infringement. The social and economic costs of such a system would be enormous, and that’s on top of the concerns of technical feasibility!

Last week, FreeCulture.org signed a response statement along with Consumer Federation of America, EDUCAUSE, Electronic Frontier Foundation, Electronic Privacy Information Center, Free Press, Knowledge Ecology International, Media Access Project, New America Foundation, Public Knowledge, and U.S. Public Interest Research Group.

NBC Universal (“NBC”) has asked the Commission to require that broadband providers “use readily available means to prevent the use of their broadband networks to transfer pirated content.” While we agree that there are appropriate ways to discourage copyright infringement on the Internet, NBC’s call to require that broadband providers use “bandwidth management tools” to effect this end is misguided. Any attempt to use this technology to control what may be done on the Internet will have serious unintended consequences. Particularly, these technologies limit First Amendment freedoms, stifle innovation, threaten personal privacy, and do little to address the underlying problem. Additionally, NBC’s proposal invites the FCC to exceed its jurisdiction.

You can read the full comments on Public Knowledge’s site or as a PDF.

Also check out NBC’s original comments (PDF link) for a good laugh, and Public Knowledge’s coverage and commentary.

Freeculture.org is pleased to announce the contest winners for our Down With DRM video contest. We had a lot of great entries, and want to thank *all* of the participants for their submissions. They’ve all contributed greatly to raising awareness in the fight against DRM.

And the winners are (in no particular order):

The winners will all receive a Neuros OSD digital video recorder. Thanks again to Neuros for providing our wonderful prize and to Defective By Design for the support!

So check out the videos, rate them, and send them to your friends to help put an end to DRM.

Marybeth Peters comes around: Boing Boing has video of the U.S. Copyright Office director saying copyright lasts too long.

I think [the term of copyright] is too long. I think that was probably a big mistake…

How do you get more than 1,000 students, faculty, and university visitors to become Free Culture advocates? Easy! Organize a mass serenade.

Free Culture’s Franklin & Marshall College chapter did just that, coordinating a massive (and officially sanctioned) sing-along rendition of “Happy Birthday” as part of the college’s recent 300th birthday celebration of founder Benjamin Franklin. This public performance actually broke the law — a perfect example of why we need copyright reform.

Read all about it on the F&M chapter blog. And then, for more exciting examples of Free Culture activism, check out what all our chapters are up to through the aggregated Chapter Blog on our website. Enjoy!

The New York Times reports (registration required) that a Canadian news-parody show akin to Jon Stewart’s The Daily Show has been forbidden to use video clips of political debates.

[D]uring the current Canadian federal election campaign, Canada’s television satirists have faced an issue that has never troubled “The Daily Show.” An agreement between Canada’s main television networks and its largest political parties blocks the shows from using film clips from the televised leaders’ debates (although the film is still available to conventional news and current affairs shows).

“It speaks for the parties’ great respect for the power of satirical shows that they would demand this,” said Roger Abbott, an Air Farce performer and writer.

Let’s get this straight. It’s OK for Canadian citizens to see a clip of the prime minister debating — if the person commenting on the clip is serious. But it’s not OK if the person commenting on it is making a joke?

This is a terrible precedent. (And yes, I think it’s a precedent even though I live in the United States.) It’s terrible because it chops off yet another piece of our historic right to fair use. Let’s review: Fair use means taking a small snippet of something (like 15 seconds of an hour-long debate) and using it in another context. A TV show doing something like that is obviously not trying to recreate the whole debate. They’re not competing with the producers of the debate, and they’re not making money by copying somebody else’s product. They’re making their own original work. That’s been legal for a long time, and it should stay legal.

Unfortunately, it sounds like the consortium of TV broadcasters that produce the Canadian debates made a Faustian bargain and gave up a big chunk of that long-established right to fair use.

[...]CBC spokesman, Jason MacDonald, who also speaks for the consortium, said that the rule dates back several years; the networks, he explained, agreed to the politicians’ demand in exchange for a promise that campaigns would not use debate clips in their ads.

Translation: TV stations agreed not to let comedians make fun of politicians, and in return the politicians promised not to…um…hold each other accountable for what they said in a public debate. Wait — how is that a fair trade? (Yes, I understand that politicians often use misleading clips in their ads. Even so, is that a reason to forbid their use?)

What’s most disappointing in this news story is the TV stations’ lack of backbone. Politicians running for office need TV a lot more than TV needs them. Instead of acting like professionals, the Canadian consortium seems to have rolled over and given up fair-use rights that have been established (at least in the U.S.) for a very long time.

Apparently the comedians came up with a makeshift solution:

Mr. Abbott said that Air Farce considered declaring itself a news program, but in the end its cast used one of its specialties - impersonation - to create mock versions of the debates.

Clever, but I wish they’d fought harder to use the clips. Every piece of ground we give up in the fight for fair and reasonable copyright policy is a piece we’ll have to re-take someday in the future.

Earlier this week, I was infuriated by this article by Makan Delrahim. It’s filled with false dichotomies and ad hominem attacks on Mark Cuban and Senator Orrin Hatch’s political foes. It’s also factually inaccurate on several counts.

I was pleasantly surprised to see Senate Candidate Pete Ashdown defend himself in an LTE today. The letter was prepublished on Ashdown’s blog.

Ashdown has signed the IPac Statement of Principles and is specifically running to stop Hatch’s unhinged pursuit of ever-stronger copyright protection.

How refreshing.

(Cross-posted from ShoutingLoudly.)

This is old news now, but I want to talk about it anyway.

Last month, American University released a document called Best Practices in Fair Use. Authored by filmmaker groups and endorsed by more, the guide lays out principles for “best practices” when dealing with the fair use doctrine of U.S. copyright law.

The plight of fair use, particularly in the realm of documentary filmmaking, is well documented — see for example Chapter 7 of Lessig’s Free Culture. When I first heard about this project in May, I immediately recognized it as work of great value. I’m glad to hear it’s come to fruition.

Since the statement is approved by filmmakers themselves, they can read the statement and adopt its principles without doubt: they know the authors are looking out for their best interest. This is a powerful tool: not just for filmmakers who want to use the work of another, but on the supply side as well. Not only does this document inform filmmakers of their rights, it informs them of their obligations as well. Not only will this embolden filmmakers when they receive a cease & desist letter or are told they have to get permission to quote in their film — hopefully this will reduce the number of cease & desist letters sent in the first place.

The excellent work of the Center for Social Media and the Program on Intellectual Property and the Public Interest will go a long way in encouraging education and discussion of copyright, particularly among the creators themselves.

The free culture student movement can help spread this document within their campus communities and ensure its wide reach. And we should.

The model of “best practices” for fair use did not originate in this report, and the model does not have to end here. Fair use is intentionally an open-ended doctrine, the grease that keeps the wheels of copyright turning: Congress hates to codify it and tends to do a poor job of it besides. Case law can be complex, unclear, contradictory — and the only way to be totally sure of something is a slow, expensive, and risky process. So the model of developing sector-wide statements of best practices makes particular sense for fair use. And the process of developing, adopting, and implementing these best practices is an enlightening one itself, and turns the question of “How should the law work?” into a very tangible one.

If I may, I’d like to suggest one field where this is desperately needed: academia.

As students, this hits particularly close to home for us. But in the academy, where information is the key commodity, there is far too little understanding and too little discussion of fair use. The prime example here would be the Association of American University Presses’ response to the Google Print program (now called “Google Book Search”). The AAUP is the group that represents the publishing houses of U.S. universities and university systems (including mine); as such, AAUP is ostensibly bound to universities’ commitment to work for the public good and increase access to information. But AAUP’s stand with the Authors Guild and their lawsuit to kill Google Print evinces AAUP’s true loyalties: to copyright maximalism, control, and profit over the public good.

I suspect this is a case of one hand not knowing what the other is doing, rather than all the universities represented by AAUP actually being in the maximalist camp. But universities must protect themselves: they should be sure that all their activities are furthering (or at least not attacking) their central goals. Therefore it seems appropriate to develop a model for university-wide best practices, inviting all the parties to take part in the process: researchers, administrators, publishers, and students.

The EFF has publicly dissed the Copyright Office’s triennial DMCA rulemaking, refusing even to participate.

This is a reasonable reaction to the three-branch monte, “where’s the fair use” shell game that is the triennial rulemaking.

Read the brief report (pdf). Additionally, read a more thorough critique: Catch 1201 (shameless plug).

Update Gavin says: It’s worth noting that FreeCulture.org didn’t file anything for the same reasons. Now that the comment period has closed, the comments filed should be publically available soon. Of course, we’ll provide a link when that happens. Watch and see: there won’t be many comments, because everyone who cares knows there’s little use commenting. We couldn’t agree more that the exemption process has failed its fundamental purpose of providing balance in copyright law. Let’s face it: the DMCA simply grants too much control to copyright owners in a very blunt fashion. The DRM + DMCA combo effectively kills digital fair use, the grease that keeps the copyright wheels turning. Remedying this situation — and ensuring it doesn’t spread to other countries, like Canada’s Bill C-60 that just died with their last parliament — should be high on the list of priorities of the free culture movement and anyone who believes in fair use.