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Showing posts with label fair use. Show all posts
Showing posts with label fair use. Show all posts

Thursday, September 2, 2021

SDNY rules against Locast, knifes beleaguered free TV

[UPDATE: At 9:47 a.m. today, Thursday, Sept. 2, I received word that Locast is suspending operations, effective immediately.]  

Locast, an online retransmitter of broadcast television, and the American public together suffered a major blow on August 31, as the federal district court in New York handed partial summary judgment to ABC, CBS, Fox, and NBC in the networks' copyright infringement lawsuit.

Locast has irritated me, but only for not expanding fast enough.  Where I live, near Providence, R.I., the service is not available.  It is available in New York to the south and Boston to the north, but access is strictly geo-fenced.  As a result, my family cannot see free broadcast TV without springing for an expensive subscription to a cable service or streaming-channel consolidator.

That's not really Locast's fault.  Broadcasters have reduced their power over the years, making free TV incrementally more difficult to access.  I live just nine miles from the broadcast towers that serve the Rhode Island state capital, but I cannot receive any signal with an interior or window-mounted antenna.

Indeed, the networks seem to want out of the broadcast game altogether.  Kickbacks from online consolidators such as Hulu Live and YouTube TV, and the networks' profits from their own services, such as Paramount+ (and Hulu Live, in part), are more lucrative than broadcasting and come with no FCC regulatory strings attached.  Local affiliates, including vital broadcast news outlets, fall through the cracks, wreaking further havoc in our information market, but that's no matter to the bottom line.  Locast threatened to breathe life back into the corpse of free TV, so the networks pursued the service with a vengeance. 

Locast is a non-profit, and its "business" model is simple.  It sets up a technology hub in a place such as Boston and converts local broadcast signals to online streams.  Home cord-cutters thus have their access to free TV restored through the internet service they already have, no antenna needed.

On the face of it, of course, this business model would constitute copyright infringement for copying and redistributing the broadcast signals.  But Congress, in a rare showing of commitment to the public interest rather than to the profit margins of our corporate overlords, built an exemption into the Copyright Act.  Governmental or nonprofit organizations are permitted to retransmit "without any purpose of direct or indirect commercial advantage, and without charge to the recipients of the secondary transmission other than assessments necessary to defray the actual and reasonable costs of maintaining and operating the secondary transmission service."

Locast is freely available and supported only by voluntary donations.  But streaming is interrupted at 15-minute intervals by 15-second pleas for donations.  Like the ad-free versions of pay-TV services, Locast offers absolution from these interruptions in exchange for a minimum "donation" of $5 per month.  The $5-donation model proved sufficiently successful that Locast was able to cover its operating costs and use the excess to expand to new markets.

And that, expansion, was Locast's sin, in the eyes of the district court.  Judge Louis L. Stanton opined that Congress could have written "maintaining and operating and expanding" into the statutory exemption, but did not.  So Locast's dedication of additional accounts received to expansion was fatal to its claim of copyright exemption.

I find the court's reading of the statute exceedingly cramped.  Locast plainly is spending money to do precisely what Congress intended: making free TV available to people who cannot receive it without hiring a contractor to install an antenna tower.  That the books must balance within each micro-market rather than across live markets, in the utter absence of evidence that a dime has been diverted to any other objective, absurdly splits hairs.

Locast lawyers, joined by the Electronic Frontier Foundation, say they are examining the ruling.  Locast announced yesterday that it is for now ceasing streaming interruptions requesting donations. 

There are ways that Locast can work around its current predicament, I reason. Locast has been supported by some major corporate donors who are not old-school TV insiders, such as AT&T, which contributed $500,000.  Internet service providers such as AT&T benefit from Locast, because retransmissions are streamed into homes, rather than broadcast.  With more careful balancing of the books, it should be possible, if cumbersome, to parse operations between discrete markets and to raise capital to support expansion directly.

It's a shame that such gamesmanship should be required for what is clearly a public service.  And a bigger problem might remain for American information and entertainment consumers in the ongoing, if prolonged, death throes of free TV.  We might hope that Congress would obviate the fray with bold measures that would reinvigorate the landscape of electronic expression by enhancing public-interest limitations on digital intellectual property and guaranteeing access to the internet for all Americans.

We also might hope to see pigs take flight.

The case is American Broadcasting Cos. v. Goodfriend, No. 1:19-cv-07136 (S.D.N.Y. Aug. 31, 2021). I bet Judge Stanton is one of those people who has both cable and Fubo and can't use either one unless someone helps him with the remote.

Friday, April 23, 2021

Publishers put the '©' in World Book Day

The 1885 John Ormsby translation of Cervantes's Don Quijote,
with 1880 illustrations by Gustave Doré, are in the public domain
at Project Gutenberg.

Today, April 23, is the International Day of the Book, or "World Book and Copyright Day," a recognition organized by UNESCO since 1995.  The date was chosen to coincide with the date of death of Miguel de Cervantes, though that date in truth is only an estimate.

Some of the promotional material from UNESCO refers only to "World Book Day," and I've found no clear record of how copyright became attached.  Cervantes was gone for a century by the time the British Statute of Anne came on the scene in 1710.  In fairness to publishers, copyright did contribute to making authorship and printing commercially viable, so it deserves credit for promoting creativity and literacy.  (Read more about the history of copyright and later developments.)

But the skeptic in me suspects that "copyright" as part of our international day of recognition came about at the behest of an industry, which, today, overreaches.  When, ancillary to civil rights-era constitutional activism, the U.S. Supreme Court found some room for the First Amendment to operate even as against the copyright clause of the 1789 Constitution, the publishers took the lead in drafting ungenerous "fair use guidelines," limits on copyright carve-out, that too often are regarded as law, especially by administrators in academia.

Lately, my wife, a librarian, and I have been troubled by the terms imposed on our local library, and all libraries, for the use of electronic books.  Once upon a time in the analog world, a library could lend a book as many times as the book could physically sustain.  Even then, the library could rebind the book and give it a new lending life.  After a single purchase, a book could reach new readers for centuries, well beyond its copyright.

1880 Doré illustration of the Adventure of the Windmills
No longer.  Publishers now self-servingly "estimate" the shelf-life equivalent of an electronic book and permit libraries to lend the book only so many times, say, 52 loans or two years, whichever comes first.  Then poof, the e-book turns into a pumpkin, and the library has to pay for a new e-book again.  Be careful about putting your name to a library service that automatically checks out an e-book to you when it becomes available, but you can then pass it on if you're not ready to read it.  The access apps are supported by publishers, and your pass counts as a full check-out against the license limit.  Our local libraries cannot afford this turnover.  Only time will tell what damage we inflict on public access, collective memory, and incentives to create, not to mention global equity in the distribution of knowledge, when we have fully turned books into inalienable commodities.

If you spare two thoughts for "World Book and Copyright Day," let one be about how you can push back against copyright restrictions so that books, including their electronic equivalents, can be, and forever remain, accessible to all.  That's no windmill.

Wednesday, February 10, 2021

Copyright? I gotchyer Bernie mittens right here, Getty

CC mine, mine, mine
Is any blog complete without a Bernie mittens meme?  

The source photo for the now world-famous Bernie mittens meme is hardly in the public domain, despite what one sees in social media.  The photo was taken by D.C.-based Agence France-Presse photojournalist Brendan Smialowski.  As The New York Times reported in January, Smialowski also took one of the well circulated photos (via N.Y. Times) of a cyclist flipping off the Trump motorcade in 2017.  He's had a good attitude about his latest claim to fame, the Times tells:

"I genuinely enjoy the fact that people are having a lighthearted moment from a political photo," he said. "Things have been pretty tough for the last year and politics can be pretty nasty, and here are people just having fun."

But AFP licenses its photos through Getty Images, where Bernie Mittens (pop-up) can be yours for from $175 for a 0.2 megapixel small to $499 for a 12.6 megapixel large.  Are AFP and Getty as chill about meme culture as Smialowski?  As François Larose and Naomi Zener write for Bereskin & Parr, "It’s all Good Fun Until a Copyright Lawyer Gets Involved."

Analyzing the case under Canadian law, Larose and Zener concluded that non-commercial memes are safe from infringement liability, but mittens merch makers had better watch out.  I'm lookin' at you, Etsy.  I am not so sanguine about U.S. fair use analysis, and I think the hypothetical case spotlights the too often yawning gulf between IP law and the reasonable expectations of real people, especially in the internet age.