(Original text compiled from Association of Research Librarians and EFF Internet Law Treatise under CC-BY-NC-SA license, edited by Sofia Lemons.)
The history of American copyright law originated with the introduction of the printing press to England in the late fifteenth century. As the number of presses grew, authorities sought to control the publication of books by granting printers a near monopoly on publishing in England. The Licensing Act of 1662 confirmed that monopoly and established a register of licensed books to be administered by the Stationers' Company, a group of printers with the authority to censor publications. The 1662 act lapsed in 1695 leading to a relaxation of government censorship, and in 1710 Parliament enacted the Statute of Anne to address the concerns of English booksellers and printers. The 1710 act established the principles of authors' ownership of copyright and a fixed term of protection of copyrighted works (fourteen years, and renewable for fourteen more if the author was alive upon expiration). The statute prevented a monopoly on the part of the booksellers and created a "public domain" for literature by limiting terms of copyright and by ensuring that once a work was purchased the copyright owner no longer had control over its use. While the statute did provide for an author's copyright, the benefit was minimal because in order to be paid for a work an author had to assign it to a bookseller or publisher.
U.S. copyright law protects “original works of authorship fixed in any tangible medium of expression.” These works include literary works (which encompass software), musical works, dramatic works, pictorial works, sculptural works, graphical works, motion pictures, sound recordings and architectural works. Copyright law protects only creative works, not facts. Only expression, but not ideas, are copyrightable. Copyright protection exists from the time the work is fixed in a tangible medium of expression, and the creator is not required to register the work or file for ownership, as with patents.
Use of a copyright notice is not required under U.S. law, although copies of works published before March 1, 1989, must bear the notice or risk loss of copyright protection. The notice has several benefits. It informs the public that the work is protected, identifies the owner and shows the year of first publication. In addition, in the event a work is infringed, a proper notice precludes a defense for mitigation of damages based on innocent infringement. Proper notice consists of symbol, year of first publication, and name of copyright owner (e.g., © 2003 Copyright Holder).
Under current law, copyright protection lasts for the author’s life plus 70 years after the author’s death, the shorter of 95 years from publication or 120 years from creation in the case of corporate authorship, and 95 years (provided it is renewed) for works first published before January 1, 1978. However, this has evolved over time, lengthening greatly compared to the original protection of twenty-four total years.
Exclusive Rights
The Copyright Act reserves to the copyright owner the exclusive right to do the following:
- To reproduce the work in copies or phonorecords;
- To prepare derivative works based upon the work (such as translations or film adaptations of books);
- To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
- To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
- In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
The copyright owner can license some or all of these rights to a third party.
Fair Use
While copyright owners have exclusive rights over their works, there are some exceptions to this. One such exception is the "fair use" doctrine, which allows people other than the copyright owner to exercise some of the rights listed above in limited ways and for specific purposes. Without fair use, people other than the author of a work could not quote it, offer samples of it, or use it for educational purposes. When complaints are brought before a court of copyright infringement, the claim of fair use can then be made. The Copyright Act requires courts to consider four factors when evaluating whether a use falls under fair use.
"In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work." (17 U.S.C. § 107)
For a case to fall under fair use, it does not have to meet all (or any set number) of these criteria. Courts are required to consider to what degree any of the four factors applies, and decide whether the weight of all of them together is enough to justify fair use. For instance, even a small clip of a movie, if used for commercial purposes and if it revealed key plot points of the movie, could be deemed not to be fair use. On the other hand, viewing an entire film for non-commercial and clearly educational purposes could be deemed to be fair use. Many advocates of fair use believe that what falls under fair use is shrinking to an overly restrictive limit as U.S. copyright law has evolved.
Internet File Sharing
One of the largest challenges to intellectual property in recent years has been copyright infringement due to new technologies, especially sharing of media files over the Internet. In its early stages, this took the form of single servers or sites which directly hosted files for users to search through and download. However, the creation of peer to peer file sharing allowed users to connect directly to each other, often using a program such as Napster or a torrent client to locate other users. Napster was peer-to-peer in the sense that their servers allowed users to find each other, but if the Napster servers were shut down there was no longer any way for users to search each other's libraries. However, later systems such as Kazaa and the BitTorrent protocol do not require a single server. These in particular pose challenges for copyright owners and legal authorities because there is no single "host" to shut down and many users are committing relatively small infringements that may not be financially worth pursuing from the copyright holder's perspective. For this reason, many content creating companies and organizations representing them have pressed for more severe penalties for distributing or receiving copyrighted material digitally.
5.3: A History of Copyright in the United States
(Original text from Association of Research Librarians, edited by Sofia Lemons.)
(Image from Wikipedia.)
1787: U.S. Constitution
According to Article I, Section 8, Clause 8 of the U.S. Constitution, "the Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
1790: Copyright Act of 1790
The First Congress implemented the copyright provision of the U.S. Constitution in 1790. The Copyright Act of 1790, An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies, was modeled on the Statute of Anne (1710). It granted American authors the right to print, re-print, or publish their work for a period of fourteen years and to renew for another fourteen. The law was meant to provide an incentive to authors, artists, and scientists to create original works by providing creators with a monopoly. At the same time, the monopoly was limited in order to stimulate creativity and the advancement of "science and the useful arts" through wide public access to works in the "public domain." Major revisions to the act were implemented in 1831, 1870, 1909, and 1976.
1831: Revision of the Copyright Act
The term of protection of copyrighted works was extended to twenty-eight years with the possibility of a fourteen-year extension. Congress claimed that it extended the term in order to give American authors the same protection as those in Europe. The extension applied both to future works and those current works whose copyright had not expired.
1886: Berne Convention
The goals of the Berne Convention provided the basis for mutual recognition of copyright between sovereign nations and promoted the development of international norms in copyright protection. European nations established a mutually satisfactory uniform copyright law to replace the need for separate registration in every country. The treaty has been revised five times since 1886. Of particular note are the revisions in 1908 and 1928. In 1908, the Berlin Act set the duration of copyright at life of the author plus 50 years, expanded the scope of the act to include newer technologies, and prohibited formalities as a prerequisite of copyright protection. In 1928, the Rome Act first recognized the moral rights of authors and artists, giving them the right to object to modifications or to the destruction of a work in a way that might prejudice or decrease the artists' reputations. The United States became a Berne signatory in 1988.
1891: International Copyright Treaty
Because American copyright law applied only to American publications, European authors were unable to profit from the publication and sale of their works at extremely low prices during the nineteenth century. The so-called "cheap books" movement, spread rapidly by small upstart publishers after the Civil War, threatened the "courtesy principle" of gentlemanly price-fixing adhered to by the large, established publishers such as Henry Holt. By the 1880s cheap books flooded the American market. By 1890 authors, publishers, and printers' unions joined together to support an international copyright bill (Vaidhyanathan, 50-55).
1909: Revision of the U.S. Copyright Act
A major revision of the U.S. Copyright Act was completed in 1909. The bill broadened the scope of categories protected to include all works of authorship, and extended the term of protection to twenty-eight years with a possible renewal of twenty-eight. The Congress addressed the difficulty of balancing the public interest with proprietor's rights:
"The main object to be desired in expanding copyright protection accorded to music has been to give the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests" (H.R. Rep. No. 2222, 60th Cong., 2nd Sess., p. 7 [1909]).
1973: Williams and Wilkins Co. v. United States
Williams and Wilkins, publishers of specialized medical journals, sued the National Library of Medicine (NLM) and the National Institutes of Health (NIH) charging that the agencies had infringed copyright by making unauthorized photocopies of articles featured within their publications and distributing them to medical researchers. The U.S. Court of Claims held that medicine, and medical research would be harmed by finding an infringement, and since the Copyright Act was under revision by Congress, it was better to allow the status quo to continue in the interim. In the decision, Judge Davis stated, "the court holds, based on the type and context of use by NIH and NLM as shown by the record, that there has been no infringement, that the challenged use is 'fair' in view of the combination of all of the factors involved in consideration of 'fair' or 'unfair' use enumerated in the opinion, that the record fails to show a significant detriment to plaintiff but demonstrates injury to medical and scientific research if photocopying of this kind is held unlawful, and that there is a need for congressional treatment of the problems of photocopying."
1976: Revision of the U.S. Copyright Act
The 1976 revision was undertaken for two primary reasons. First, technological developments and their impact on what might be copyrighted, how works might be copied, and what constituted an infringement needed to be addressed. Second, the revision was undertaken in anticipation of Berne Convention adherence by the U.S. It was felt that the statute needed to be amended to bring the U.S. into accord with international copyright law, practices, and policies. The 1976 act preempted all previous copyright law and extended the term of protection to life of the author plus 50 years (works for hire were protected for 75 years). The act expanded the scope of works that could be covered by copyright to include, among other things, software and databases which exhibited "authorship." The fair use and first sale doctrines were codified, and copyright was extended to unpublished works. A new section was added, section 108, that allowed library photocopying without permission for purposes of scholarship, preservation, and interlibrary loan under certain circumstances.
In addition, it contains an exception to the exclusive rights of owners to make and distribute copies of their works. It states that "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." To determine whether the use of a work is a fair use, the following four factors are to be considered: purpose and character of the use, nature of the copyrighted work, the amount and substantiality of the portion used in relation to the whole, and the effect of the use on the potential market. See Title 17of the U.S. Code.
1976: Classroom Guidelines
In addition to legislative reforms, private negotiations between owners and users of copyrighted materials resulted in guidelines for classroom and educational use as well as reserve room use. These guidelines were not part of the statute but were included in the House report accompanying the 1976 act. The 1976 "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals" was adopted by thirty-eight educational organizations and the publishing industry. According to the text of the guidelines, the purpose was "to state the minimum and not the maximum standards of educational fair use under section 107 of the [Copyright Act of 1976]. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying may be permissible under revised guidelines."
1983: Encyclopedia Britannica Educational Corp. v. Crooks
Encyclopedia Britannica sued the Board of Cooperative Educational Services, a consortium of public school districts, for systematically taping educational programs that were broadcast on public television stations and making copies available to member schools. The court found that the actions of the school board would have a detrimental effect on the market of the commercially produced programs and that the use was not a fair use.
1984: Sony v. Universal Studios
Users of Sony video (Betamax) devices were recording copyrighted broadcasts and making copies of other Betamax tapes to share with others. Sony was alleged to be participating in this copying by selling devices that allowed recording in this manner. The Supreme Court decided that uses such as recording a show to watch later were fair use of the materials and did not constitute an infringement by the users of these devices. Commercial uses, such as making copies of tapes to sell, would not fall under fair use. However, the court ruled that Sony was not liable for copyright infringement by users of their devices because there were legitimate uses of the device which Sony distributed.
1986: Maxtone-Graham v. Burtchaell
Maxtone-Graham wrote a book containing women's stories of unwanted pregnancy and abortion in 1973. She denied Burtchaell's request to use excerpts from her published interviews. He published them anyway. The Second Circuit Court of Appeals found that quoting 4.3% of an author's work was not excessive and that Burtchaell's use of the narratives was a fair use.
1988: Berne Convention
The United States became a Berne signatory in 1988. The major changes for the U.S. copyright system as a result of Berne were: greater protection for proprietors, new copyright relationships with twenty-four countries, and elimination of the requirement of copyright notice for copyright protection.
1990: Circulation of Computer Software
Congress amended the Copyright Act to prohibit commercial lending of computer software. The amendment noted that libraries could lend software provided the "copy of a computer program which is lent by such library has affixed to the packaging containing the program a warning of copyright." The amendment was a modification of the first sale doctrine.
1991: Basic Books, Inc. v. Kinko's Graphics Corp.
A Federal District Court in New York ruled that Kinko's Graphic Corporation infringed copyrights, and did not exercise fair use, when it photocopied coursepacks that included book chapters, and then sold them to students for classwork. The court found that most of the fair use factors worked against Kinko's in this case, especially given Kinko's profit motive in making the copies. Additionally, the court found that the classroom guidelines did not apply to Kinko's. The court did not rule that coursepacks cannot constitute fair use in other circumstances.
1992: Amendment to Section 304 of Title 17
Congress amended Section 304 of Title 17 making copyright renewal automatic. The amendment dramatically curtailed the entry into the public domain of works protected by copyright before 1978.
1993: Playboy Enterprises Inc. v. Frena
The Florida Northern District Court held that Frena, an electronic bulletin board operator, had violated Playboy'scopyright when one of their photographs was digitized and placed on the bulletin board system by one subscriber and downloaded by another subscriber. According to the decision, "it does not matter that Defendant Frena may have been unaware of the copyright infringement. Intent to infringe is not needed to find copyright infringement. Intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement; rather innocence is significant to a trial court when it fixes statutory damages, which is a remedy equitable in nature."
1995: Religious Technology Center v. Netcom
A federal judge in the Northern District Court of California ruled that Netcom, an Internet Service Provider (ISP), was liable for contributory infringement (as opposed to direct infringement) of copyright because the company did not remove copyrighted materials posted by a subscriber. Justice Whyte found that "mere possession of a digital copy on a [server] that is accessible to some members of the public" may not constitute direct infringement of the exclusive right to publicly distribute and display. The case was significant for its implications for Internet Service Providers' knowledge of and liability for infringers' activities, as well as their use of the fair use doctrine as an affirmative defense against charges of contributory infringement. In 1998, the DMCA limited the liability of "service providers" for some forms of infringement.
1997: No Electronic Theft Act
Under this law, it became criminally punishable (up to five years in prison and up to $250,000 in fines) to willfully infringe copyright by reproducing or distributing copies of copyrighted work with a total value of more than $1,000 within a six-month period. These penalties can apply even when there was no commercial benefit to the copier of the materials.
1998: Sonny Bono Copyright Term Extension Act
On October 7, 1998, the House and Senate passed S. 505, the Copyright Term Extension Act (CTEA). The law extended protection from life of the author plus fifty years to life of the author plus seventy years. President Clinton signed the measure into law on October 27, 1998 (P.L. 105-298). The law's provisions applied to works under copyright on the date of its implementation. An exception permits libraries, archives, and non-profit educational institutions to treat copyrighted works in their last twenty years of protection as if they were in the public domain for non-commercial purposes, under certain limited conditions.
1998: Digital Millennium Copyright Act
President Clinton signed the Digital Millennium Copyright Act (DMCA) into law on October 28, 1998 (P.L. 105-304). The law's five titles implemented the WIPO Internet Treaties; established safe harbors for online service providers; permitted temporary copies of programs during computer maintenance; made miscellaneous amendments to the Copyright Act, including amendments which facilitated Internet broadcasting; and created sui generis protection for boat hull designs. A controversial title establishing database protection was omitted by a House-Senate Conference.
One of the most critical aspects of the law for providers of digital services (such as hosts of web sites) was the "safe harbor" principle, under which providers could not be pursued for copyright infringements that happened through their services if the provider made reasonable attempts to prevent such infringements from happening. Content owners were required to notify service providers with a formal "take-down notice" that informed them of what copyrighted material was being hosted through their service. Providers are required to take reasonable steps to block access to the material or remove it.
Among the most controversial provisions of the DMCA is Section 1201. According to Jonathan Band of Morrison & Foerster, LLP, Section 1201 "prohibits gaining unauthorized access to a work by circumventing a technological protection measure put in place by the copyright owner where such protection measure otherwise effectively controls access to a copyrighted work. This prohibition on unauthorized access takes effect two years after enactment of the DMCA." Over the next two years, the Librarian of Congress conducted a rulemaking proceeding to determine appropriate exceptions to the prohibition. Additional rulemakings will occur every three years.
1999: Digital Theft Deterrence and Copyright Damages Improvement Act of 1999
Congress approved a significant hike in the minimum statutory damages for various types of copyright infringement in the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 (H.R. 3456). The law increased the minimum statutory damages for infringements from $500 to $750 and increased the maximum from $20,000 to $30,000. The maximum for willful infringement increased from $100,000 to $150,000.
2001: A&M Records v. Napster
Napster provided a service where users could log in, search for digital music in other users' libraries, and download the music from those users. The recording industry representatives argued that Napster was responsible for the copyright infringements that happened through their service. Lawyers for Napster argued that their systems had legitimate uses like the Sony case, they were not hosting the copyrighted material, and their services did not significantly harm music industry profits. However, the court found that Napster had not followed the appropriate guidelines under the DMCA to prevent copyright infringement through their service, and thus were liable for the infringements of their users.
2001: Russian Programmer Arrested for Copyright Circumvention
Among the first challenges to the DMCA was the case of Dmitri Sklyarov, a Russian programmer accused of circumventing copyright protections in Adobe Systems’ eBook Reader while working for a Russian software firm, ElcomSoft. Sklyarov was arrested in July 2001. ElcomSoft was charged with one count of conspiracy and four counts of trafficking in technology used to circumvent copyright protections.
On April 2, 2002, Judge Ronald Whyte of the Northern District of California denied a motion to dismiss the prosecution of ElcomSoft. ElcomSoft’s attorneys argued that the actions at issue in the case occurred outside of the U.S., and that the law banned tools that consumers could use for legitimate purposes, such as blind people converting e-books to audio files to be read aloud by their computers. Finally, the attorneys argued that computer code is speech and is therefore protected under the first amendment to the U.S. Constitution.
2002: Consumer Broadband and Digital Television Promotion Act (S. 2048) Introduced in Senate
On March 21, 2002, Sen. Ernest Hollings (Chair, Committee on Commerce, Science, and Transportation, D-SC) introduced the "Consumer Broadband and Digital Television Promotion Act" (S. 2048). The goal as stated in the bill is "to regulate interstate commerce in certain devices by providing for private sector development of technological protection measures to be implemented and enforced by Federal regulations to protect digital content and promote broadband, as well as the transition to digital television, and for other purposes." The bill requires that any device that can record, receive, or store copyrighted digital information comply with copy-protections encoded in digital works such as DVDs, CDs, and electronic books.
2005: Family Entertainment and Copyright Act
The Family Entertainment and Copyright Act was enacted on April 27, 2005. One part of the Act, the Artist's Rights and Theft Prevention Act of 2005, created criminal penalties (up to three years for first offenses and up to six years for repeat offenses) for individuals who record motion pictures in a theater or for individuals who distribute unpublished works, such as movies or software. The Family Entertainment and Copyright Act also included the Family Home Movie Act of 2005. The Family Home Movie Act provided a statutory exemption for DVD players and other home movie players that contain technology to skip objectionable content.
2005: Metro-Goldwyn-Mayer Studios v. Grokster
On June 27, 2005, the United States Supreme Court ruled against Grokster, a peer-to-peer file-sharing company. Grokster had sought to avoid secondary copyright infringement liability by relying on Sony Corp. v. Universal City Studios. Grokster argued that Sony limited distributor liability for any technology that had substantial non–infringing uses.
In Metro-Goldwyn-Mayer Studios v. Grokster, the Court distinguished Sony and found that the possibility of substantial non–infringing use of a product did not shield a distributor who "promot[ed] its use to infringe copyright." The Court sent the case down for further proceedings, but adopted an active inducement theory that would hold any active inducers liable for secondary copyright infringement.
2005: Google Library Project
In 2005, Google launched a project to digitize and index the collections of several research libraries. Google seeks to use the digitized books in its search engine by providing brief, few sentence long or less, search results. Google will then provide links to websites from which the books can be purchased and libraries from which the books can be borrowed. Five publishers have sued Google for copyright infringement, and the Authors Guild has filed a separate class action against Google. Based on the limited quotations actually displayed to the user, Google has argued that its use of the books falls under the fair use provision of the Copyright Act.
2006: Field v. Google
On January 19, 2006, Google prevailed in a case brought by an author and lawyer who alleged that Google violated the reproduction and distribution rights of his original web content by providing copies through Google's website cache. The Court, however, found that Field had granted Google an implicit license by failing to indicate that the content should not be archived, even though he was aware of technical steps to block archiving. Furthermore, the Court found that Google's use of the web content was fair and that Google's automatic, non–volitional delivery of cached content could not constitute direct infringement under the Copyright Act.
2008: WIPO Broadcasting Treaty
In June of 2004, the World Intellectual Property Organization ("WIPO") began deliberating a Broadcasting Treaty that would afford broadcasters economic rights, akin to copyright protection, in their broadcasts for up to 50 years. The treaty was originally couched in terms of an attempt to update the 1961 Rome Convention, but also adds many technologies that did not exist during the Rome Convention. The treaty would allow broadcasters to claim rights in their signals as well as rights to the creative content produced by other individuals. For example, a broadcasting company would own rights in the broadcast of a director's film that was licensed under a Creative Commons license. A revised draft of the treaty was issued in 2006, when various countries (including the US) sought to exclude webcasting from the treaty. After postponing discussions in 2007, the treaty became the focus of the WIPO Standing Committee on Copyright's 2008 meeting in Geneva. Agreement on text has not been reached, but WIPO's Standing Committee on Copyright and Related Rights continues to list broadcasters' rights as an issue on its meeting agenda.
2010: Trans-Pacific Partnership Agreement (TPP)
In 2010, nine countries of widely differing economic and developmental backgrounds began negotiating a comprehensive, large-scale regional trade agreement known as the Trans-Pacific Partnership Agreement (TPP). The TPP originally grew out of the Pacific-4 (P4) trade bloc of Brunei, Chile, New Zealand, and Singapore, with the additions of Australia, Malaysia, Peru, the United States, and Vietnam as negotiating parties by 2010. Canada and Mexico entered the negotiations in December 2012, and Japan became a negotiating party in July 2013. The TPP, as a comprehensive agreement, contains more than twenty proposed chapters including one on intellectual property rights, enforceable through the investment chapter which would create independent dispute settlement bodies that would allow private investors to bring suit against governments. Allowing investor-state dispute settlements has been a controversial issue as enforcement of trade disputes before the World Trade Organization (WTO) is conducted state-to-state and does not include a mechanisms for individual investors to sue a government. The text of the agreement remains secret and there have been no official releases of the text, resulting in sharp criticism regarding this lack of transparency by civil society and academics as well as numerous members of Congress. While no government has officially released the text, several notable leaks of the text have occurred in the areas of intellectual property, environment, and investment. The intellectual property chapter leaks reveal a comprehensive chapter that includes substantive provisions on copyright, trademarks, and patents as well as detailed enforcement provisions covering civil, criminal, border measures, and ISP liability. Critics of the agreement have raised concerns that the intellectual property chapter of the TPP could impact access to medicines and access to knowledge. As of April 2014, a final agreement has yet to be reached, and the intellectual property chapter is widely reported as one of the most controversial issues amongst the negotiating parties.
2011: Rejection of Google Books Settlement
In March 2011, Judge Chin rejected the proposed settlement of Authors Guild v. Google, a case in which right holders asserted that the scanning of books and creation of a searchable database infringed copyright. Authors Guild and Google reached a settlement agreement which authorized Google the non-exclusive right to continue to digitize books, sell subscriptions to an electronic database, sell access to individual books, and sell advertising on pages from books. In exchange, Google agreed to pay right holders sixty-three percent of all revenues from the uses and that an established book rights registry would administer distribution of the revenues. Google also agreed to pay $45 million into a settlement fund for works digitized prior to May 5, 2009. The agreement created an "opt-out" system to allow right holders to exclude their books from some or all of the uses.
After a fairness hearing, Judge Chin rejected the proposal, finding that there was inadequate representation of the class, the settlement exceeded the scope of the original litigation and appeared to be more of a business arrangement, the issue of "orphan works" was a matter for Congress, and the agreement would give Google a significant advantage over its competitors. In particular, the opinion noted concerns with the "opt-out" design of the agreement, rather than "opt in."
2011: Stop Online Piracy Act/Protect IP Act
The Stop Online Piracy Act (SOPA), introduced into the House by Representative Lamar Smith (R-TX) and the Protect IP Act (PIPA), introduced into the Senate by Senator Patrick Leahy (D-VT) in 2011, targeted websites dedicated to infringing activities. PIPA essentially represented a re-write of the Combating Online Infringement and Counterfeits Act (COICA), which failed to pass in 2010. Among other issues, these bills were designed to bar payment networks from conducting business with infringing websites, prohibit search engines from linking to infringing websites, require blocking of access to websites, and expand application of criminal penalties. Following massive online protests, including a "blackout" of numerous websites—many of which were high profile sites such as Google, Wikipedia, and Reddit—on January 18, 2012, numerous co-sponsors of the bills withdrew their support and neither bill passed.
2012: Viacom v. YouTube, Inc.
Viacom sued YouTube, alleging that the company was liable for copyright infringements committed by its users even though YouTube complied with Viacom's takedown notices. In April 2012, the Second Circuit ruled in favor of YouTube, finding that the company was protected from liability unless it actually knew of, or was willfully blind to, the specific instances of infringement or facts indicating such infringement. The Second Circuit also noted that while YouTube could be held liable for willful blindness, this standard did not impose an affirmative duty to seek out infringing activity.
5.4: Copyleft & Free Culture
(Original text from Introduction to Openness in Education, edited by Sofia Lemons.)
Many people feel that copyright law, both in the U.S. and internationally, is overly restrictive and have worked to find ways to encorage sharing, collaboration, and "remixing." For this reason, individuals and groups have worked to devise more collaborative and open models, mostly through the use of open licenses. For instance, the open source software movement has worked to create licenses for software which encourage people to contribute, build upon, and share software ideas through source code. Furthermore, the Creative Commons licenses are centered around sharing, giving credit for, and remixing other forms of creative works, such as writing, music, photographs, and more. These ideas, while innovative, can be more difficult to make creators aware of and for creators to use. Because all creative works are copyrighted to the fullest extent of the law the instant they are created, if creators want to share their lecture notes, videos, textbooks, and other educational materials in a way that allows others to reuse, revise, remix, and redistribute them, they have to select and apply an open license to their work.
Open Source Software
Open source doesn't just mean access to the source code. The distribution terms of open-source software must comply with the following criteria:
1. Free Redistribution
The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale.
Rationale: By constraining the license to require free redistribution, we eliminate the temptation to throw away many long-term gains in order to make a few short-term sales dollars. If we didn't do this, there would be lots of pressure for cooperators to defect.
2. Source Code
The program must include source code, and must allow distribution in source code as well as compiled form. Where some form of a product is not distributed with source code, there must be a well-publicized means of obtaining the source code for no more than a reasonable reproduction cost preferably, downloading via the Internet without charge. The source code must be the preferred form in which a programmer would modify the program. Deliberately obfuscated source code is not allowed. Intermediate forms such as the output of a preprocessor or translator are not allowed.
Rationale: We require access to un-obfuscated source code because you can't evolve programs without modifying them. Since our purpose is to make evolution easy, we require that modification be made easy.
3. Derived Works
The license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software.
Rationale: The mere ability to read source isn't enough to support independent peer review and rapid evolutionary selection. For rapid evolution to happen, people need to be able to experiment with and redistribute modifications.
4. Integrity of The Author's Source Code
The license may restrict source-code from being distributed in modified form only if the license allows the distribution of "patch files" with the source code for the purpose of modifying the program at build time. The license must explicitly permit distribution of software built from modified source code. The license may require derived works to carry a different name or version number from the original software.
Rationale: Encouraging lots of improvement is a good thing, but users have a right to know who is responsible for the software they are using. Authors and maintainers have reciprocal right to know what they're being asked to support and protect their reputations.
Accordingly, an open-source license must guarantee that source be readily available, but may require that it be distributed as pristine base sources plus patches. In this way, "unofficial" changes can be made available but readily distinguished from the base source.
5. No Discrimination Against Persons or Groups
The license must not discriminate against any person or group of persons.
Rationale: In order to get the maximum benefit from the process, the maximum diversity of persons and groups should be equally eligible to contribute to open sources. Therefore we forbid any open-source license from locking anybody out of the process.
Some countries, including the United States, have export restrictions for certain types of software. An OSD-conformant license may warn licensees of applicable restrictions and remind them that they are obliged to obey the law; however, it may not incorporate such restrictions itself.
6. No Discrimination Against Fields of Endeavor
The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research.
Rationale: The major intention of this clause is to prohibit license traps that prevent open source from being used commercially. We want commercial users to join our community, not feel excluded from it.
7. Distribution of License
The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties.
Rationale: This clause is intended to forbid closing up software by indirect means such as requiring a non-disclosure agreement.
8. License Must Not Be Specific to a Product
The rights attached to the program must not depend on the program's being part of a particular software distribution. If the program is extracted from that distribution and used or distributed within the terms of the program's license, all parties to whom the program is redistributed should have the same rights as those that are granted in conjunction with the original software distribution.
Rationale: This clause forecloses yet another class of license traps.
9. License Must Not Restrict Other Software
The license must not place restrictions on other software that is distributed along with the licensed software. For example, the license must not insist that all other programs distributed on the same medium must be open-source software.
Rationale: Distributors of open-source software have the right to make their own choices about their own software.
Yes, the GPL v2 and v3 are conformant with this requirement. Software linked with GPLed libraries only inherits the GPL if it forms a single work, not any software with which they are merely distributed.
10. License Must Be Technology-Neutral
No provision of the license may be predicated on any individual technology or style of interface.
Rationale: This provision is aimed specifically at licenses which require an explicit gesture of assent in order to establish a contract between licensor and licensee. Provisions mandating so-called "click-wrap" may conflict with important methods of software distribution such as FTP download, CD-ROM anthologies, and web mirroring; such provisions may also hinder code re-use. Conformant licenses must allow for the possibility that (a) redistribution of the software will take place over non-Web channels that do not support click-wrapping of the download, and that (b) the covered code (or re-used portions of covered code) may run in a non-GUI environment that cannot support popup dialogues.
History of Open Source Software
Free Software's Early Years
In 1983, Richard Stallman launched the GNU Project to write a complete operating system free from constraints on use of its source code. Particular incidents that motivated this include a case where an annoying printer couldn't be fixed because the source code was withheld from users. Stallman also published the GNU Manifesto, in 1985, to outline the GNU project's purpose and explain the importance of free software. Another probable inspiration for the GNU project and its manifesto was a disagreement between Stallman and Symbolics, Inc. over MIT's access to updates Symbolics had made to its Lisp machine, which was based on MIT code. Soon after the launch, he coined the term "free software" and founded the Free Software Foundation to promote the concept and a free software definition was published in February 1986. In 1989, the first version of the GNU General Public License was published. A slightly updated version 2 was published in 1991.
Linux
The Linux kernel, started by Linus Torvalds, was released as freely modifiable source code in 1991. The licence wasn't a free-software licence, but with version 0.12 in February 1992, Torvalds relicensed the project under the GNU General Public License. Much like Unix, Torvalds' kernel attracted the attention of volunteer programmers. Until this point, the GNU project's lack of a kernel meant that no complete free-software operating systems existed. The development of Torvalds' kernel closed that last gap. The combination of the almost-finished GNU operating system and the Linux kernel made the first complete free-software operating system. Among Linux distributions, Debian GNU/Linux, begun by Ian Murdock in 1993, is noteworthy for being explicitly committed to the GNU and FSF principles of free software. The Debian developers' principles are expressed in the Debian Social Contract.
Successes for Free Software
In the mid to late 90s, when many web-based companies were starting up, free software became a popular choice for web servers. Apache HTTP Server became the most-used web-server software – a title that still holds as of 2012. Systems based on a common "stack" of software with the Linux kernel at the base, Apache providing web services, the MySQL database engine for data storage, and the PHP programming language for providing dynamic pages, came to be known as LAMP systems.
Open Source
In 1997, Eric Raymond published The Cathedral and the Bazaar, a reflective analysis of the hacker community and free-software principles. The paper received significant attention in early 1998 and was one factor in motivating Netscape Communications Corporation to release their popular Netscape CommunicatorInternet suite as free software. This code is today the basis for Mozilla Firefox and Thunderbird.
Netscape's act prompted Raymond and others to look into how to bring free-software principles and benefits to the commercial-software industry. They concluded that FSF's social activism was not appealing to companies like Netscape, and looked for a way to rebrand the free-software movement to emphasize the business potential of the sharing of source code.
The label "open source" was adopted by some people in the free software movement at a strategy session held at Palo Alto, California, in reaction to Netscape's January 1998 announcement of a source code release for Navigator. The group of individuals at the session included Christine Peterson who suggested "open source", Todd Anderson, Larry Augustin, Jon Hall, Sam Ockman, Michael Tiemann and Eric S. Raymond. Over the next week, Raymond and others worked on spreading the word. Linus Torvalds gave an all-important sanction the following day. Phil Hughes offered a pulpit in Linux Journal. Richard Stallman, pioneer of the free software movement, flirted with adopting the term, but changed his mind. Those people who adopted the term used the opportunity before the release of Navigator's source code to free themselves of the ideological and confrontational connotations of the term "free software". Netscape released its source code under the Netscape Public License and later under the Mozilla Public License.
The term was given a big boost at an event organized in April 1998 by technology publisher Tim O'Reilly. Originally titled the "Freeware Summit" and later known as the "Open Source Summit", The event brought together the leaders of many of the most important free and open-source projects, including Linus Torvalds, Larry Wall, Brian Behlendorf, Eric Allman, Guido van Rossum, Michael Tiemann, Paul Vixie, Jamie Zawinski of Netscape, and Eric Raymond. At that meeting, the confusion caused by the name free software was brought up. Tiemann argued for "sourceware" as a new term, while Raymond argued for "open source." The assembled developers took a vote, and the winner was announced at a press conference that evening. Five days later, Raymond made the first public call to the free software community to adopt the new term. The Open Source Initiative was formed shortly thereafter.
However, Richard Stallman and the FSF harshly objected to the new organization's approach. They felt that, with its narrow focus on source code, OSI was burying the philosophical and social values of free software and hiding the issue of computer users' freedom. Stallman still maintained, however, that users of each term were allies in the fight against proprietary software.
Creative Commons
The Creative Commons copyright licenses and tools forge a balance inside the traditional “all rights reserved” setting that copyright law creates. Their tools give everyone from individual creators to large companies and institutions a simple, standardized way to grant copyright permissions to their creative work. The combination of their tools and their users is a vast and growing digital commons, a pool of content that can be copied, distributed, edited, remixed, and built upon, all within the boundaries of copyright law.
License design and rationale
All Creative Commons licenses have many important features in common. Every license helps creators retain copyright while allowing others to copy, distribute, and make some uses of their work — at least non-commercially. Every Creative Commons license also ensures creators get the credit for their work they deserve. Every Creative Commons license works around the world and lasts as long as applicable copyright lasts (because they are built on copyright). These common features serve as the baseline, on top of which creators can choose to grant additional permissions when deciding how they want their work to be used.
A Creative Commons creator answers a few simple questions on the path to choosing a license — first, do I want to allow commercial use or not, and then second, do I want to allow derivative works or not? If a creator decides to allow derivative works, she may also choose to require that anyone who uses the work to make that new work available under the same license terms. We call this idea “ShareAlike” and it is one of the mechanisms that (if chosen) helps the digital commons grow over time. ShareAlike is inspired by the GNU General Public License, used by many free and open source software projects.
Our licenses do not affect freedoms that the law grants to users of creative works otherwise protected by copyright, such as exceptions and limitations to copyright law like fair use or fair dealing. Creative Commons licenses require users of the content to get permission to do any of the things with a work that the law reserves exclusively to a creator and that the license does not expressly allow. Licensees must credit the creator, keep copyright notices intact on all copies of the work, and link to the license from copies of the work. Licensees cannot use technological measures to restrict access to the work by others.
Three “Layers” Of Licenses
Creative Commons licenses incorporate a unique and innovative “three-layer” design. Each license begins as a traditional legal tool, in the kind of language and text formats that most lawyers know and love. This is called the Legal Code layer of each license.
But since most creators, educators, and scientists are not in fact lawyers, Creative Commons also makes the licenses available in a format that normal people can read — the Commons Deed (also known as the “human readable” version of the license). The Commons Deed is a handy reference for creators and users of the work, summarizing and expressing some of the most important terms and conditions. Think of the Commons Deed as a user-friendly interface to the Legal Code beneath, although the Deed itself is not a license, and its contents are not part of the Legal Code itself.
The final layer of the license design recognizes that software, from search engines to office productivity to music editing, plays an enormous role in the creation, copying, discovery, and distribution of works. In order to make it easy for the Web to know when a work is available under a Creative Commons license, they provide a “machine readable” version of the license — a summary of the key freedoms and obligations written into a format that software systems, search engines, and other kinds of technology can understand.
Searching for open content is an important function enabled by the Creative Commons approach. You can use Google to search for Creative Commons content, look for pictures at Flickr, albums at Jamendo, and general media at spinxpress. The Wikimedia Commons, the multimedia repository of Wikipedia, is a core user of Creative Commons licenses as well.
Taken together, these three layers of licenses ensure that the spectrum of rights isn’t just a legal concept. It’s something that the creators of works can understand, their users can understand, and even the Web itself can understand.
The Licenses
Attribution (CC BY)
This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered. Recommended for maximum dissemination and use of licensed materials.
Attribution-ShareAlike (CC BY-SA)
This license lets others remix, tweak, and build upon your work even for commercial purposes, as long as they credit you and license their new creations under the identical terms. This license is often compared to “copyleft” free and open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use. This is the license used by Wikipedia, and is recommended for materials that would benefit from incorporating content from Wikipedia and similarly licensed projects.
Attribution-NoDerivs (CC BY-ND)
This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you.
Attribution-NonCommercial (CC BY-NC)
This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.
Attribution-NonCommercial-ShareAlike (CC BY-NC-SA)
This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms.
Attribution-NonCommercial-NoDerivs (CC BY-NC-ND)
This license is the most restrictive of our six main licenses, only allowing others to download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially.