Listing entries tagged with law

fair use and the networked book   01.23.2006, 3:29 PM

I just finished reading the Brennan Center for Justice's report on fair use. This public policy report was funded in part by the Free Expression Policy Project and describes, in frightening detail, the state of public knowledge regarding fair use today. The problem is that the legal definition of fair use is hard to pin down. Here are the four factors that the courts use to determine fair use:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

From Dysfunctional Family Circus, a parody of the Family Circus cartoons. Find more details at illegal-art.org

Unfortunately, these criteria are open to interpretation at every turn, and have provided little with which to predict any judicial ruling on fair use. In a lawsuit, no one is sure of the outcome of their claim. This causes confusion and fear for individuals and publishers, academics and their institutions. In many cases where there is a clear fair use argument, the target of copyright infringement action (cease and desist, lawsuit) does not challenge the decision, usually for financial reasons. It’s just as clear that copyright owners pursue the protection of copyright incorrectly, with plenty of misapprehension about what qualifies for fair use. The current copyright law, as it has been written and upheld, is fraught with opportunities for mistakes by both parties, which has led to an underutilization of cultural assets for critical, educational, or artistic purposes.

This restrictive atmosphere is even more prevalent in the film and music industries. The RIAA lawsuits are a well-known example of the industry protecting its assets via heavy-handed lawsuits. The culture of shared use in the movie industry is even more stifling. This combination of aggressive control by the studio and equally aggressive piracy is causing a legislative backlash that favors copyright holders at the expense of consumer value. The Brennan report points to several examples where the erosion of fair use has limited the ability of scholars and critics to comment on these audio/visual materials, even though they are part of the landscape of our culture.

That's why creative commons and open-access content is so important. It clearly states how and to what extent you can use copyrighted media. While fair use will always exist (because some corporations and individuals will maintain complete control over their creative assets), open-access licensing for media will simultaneously invigorate cultural discourse and reduce the incentive to infringe on copyright.

Posted by jesse wilbur at 03:29 PM | Comments (4)
tags: Copyright and Copyleft , brennan_center , copyright , creative_commons , fair_use , law , open_content

chicago law faculty starts blogging   10.12.2005, 1:07 PM

Law professors at the University of Chicago have launched an experimental faculty blog to connect with students, the legal community, and the world at large. They've chosen a good moment to jump into the public sphere, when the Supreme Court is in flux. I wouldn't be surprised if this spurred similar developments at other universities.

The University of Chicago School of Law has always been a place about ideas. We love talking about them, writing about them, and refining them through open, often lively conversation. This blog is just a natural extension of that tradition. Our hope is to use the blog as a forum in which to exchange nascent ideas with each other and also a wider audience, and to hear feedback about which ideas are compelling and which could use some re-tooling.

Though a growing number of scholars have embraced blogging, the academy as a whole has been loathe to take treat it as anything more than a dalliance. But a few more high profile moves like the one in Chicago and university boards may start clamoring to jump in. Perhaps then there can begin a serious discussion about legitimizing blogging as a form of scholarly production, and even as a kind of peer review. It's not that all academics should be expected (or should want) to become high-profile public intellectuals. Fundamentally, academic blogging should be considered as an extension of "office hours," a way to extend the dialogue with students and other faculty.

But there's a definite benefit for the public when authoritative voices start blogging about what they know best. It's refreshing to read sober, deeply informed reflections on the Miers nomination and surrounding questions of judicial philosophy written by people who know what they're talking about. It helps us to parse the news and to tune out some of the more worthless punditry that goes on, both in mainstream media and in the blogosphere. Less noise, more signal.

Of course, experts can get noisy too. I was thrilled when Paul Krugman began writing his column for the NY Times -- here was someone with a deep grasp of economics and a talent for explaining it in a political context. But as Krugman's audience has grown, so has his propensity to blow off partisan steam. To me at least, his value as a public intellect has waned.

Posted by ben vershbow at 01:07 PM | Comments (0)
tags: Education , academia , academic , academy , blog , blogger , blogging , blogs , chicago , culture , faculty , intellectual , judicial , law , legal , miers , pedagogy , politics , publishing , schools , supreme_court , university

copyright lawyers remain richest professionals   09.20.2005, 12:50 PM

Or so is the case in Korea, where the custodians of intellectual property law ranked first (apparently for the sixth straight year) in a recent personal income survey. An interesting nugget blown down the pipeline from Korean newspaper Chosun Ilbo, in an article barely longer than its headline. Though I am only able to explore the English-language edition, it seems to be a newspaper with no end of information, but little in the way of analysis. One has the feeling of reading oil, a lubricant for the economic wheels that have delivered a war-torn and psychologically divided nation into material prosperity. Korea is now a major regional power of the so-called global information economy.

The Chosun trifle nicely animates the highly abstract, but fascinating "A Hacker Manifesto" by McKenzie Wark, which I recently began reading. The manifesto is a Marxist tract for the information age, redefining the eternal class struggle in terms of intellectual property - the post-capital form of property - which is controlled by a new ruling class, the "vectoralists." The vectoralists - Bill Gates, Rupert Murdoch, or the big pharmaceutical companies would be the most obvious examples - control the vectors, or channels, of communication, and seek to subjugate the "hackers," who Wark defines as a newly coherent class of idea makers - programmers, inventors, artists and philosophers. It's an important book, and convincingly argues why the intellectual property debate is central in the struggle for liberty.

That the vectoralist class has replaced capital as the dominant exploiting class can be seen in the form that the leading corporations take. These firms divest themselves of their productive capacity, as this is no longer a source of power. They rely on a competing mass of capitalist contractors for the manufacture of their products. Their power lies in monopolizing intellectual property -- patents, copyrights and trademarks -- and the means of reproducing their value -- the vectors of communication. The privatization of information becomes the dominant, rather than a subsidiary, aspect of commodified life.

He goes on to quote from Naomi Klein:

"There is a certain logic to this progression: first, a select group of manufacturers transcend their connection to earthbound products, then, with marketing elevated as the pinnacle of their business, they attempt to alter marketing's social status as a commercial interruption and replace it with seamless integration."

Posted by ben vershbow at 12:50 PM | Comments (1)
tags: Copyright and Copyleft , IT , capitalism , class , communism , copyleft , copyright , hacker , hacking , intellectualproperty , korea , law , lawyer , manifesto , marxism , naomiklein , patent , seoul , vector , vectoralist , wark