January 29, 2005

Eyes on the Copyright Fight

I note that Downhill Battle has taken down the .torrent links to EoTP, removed Henry's image from the webpage, and made some language changes to their webpage. I applaud all these moves, and thank them for doing so. They still have a number of things which I am firmly opposed to (advocating download, copy and distribution, advocating public display without license, etc.) but I've already ranted about that in previous posts.

I wanted to take a moment to talk about some language they use on the page. They rhetorically ask if what they are proposing - the distribution, duplication and exhibition of EoTP - is 'Civil Disobedience.' According to them:

So, are these community screenings civil disobedience?

We don't think so at all. The First Amendment and the doctrine of "fair use" can clearly be extended to include the right to distribute a film of such important historical significance as Eyes, when such a film is otherwise unavailable. The history of the Civil Rights Movement is simply too important for us to let its most comprehensive documentary languish in copyright purgatory. This Black History Month we're working to ensure as many people as possible have access to this essential film.

But that doesn't mean that the law shouldn't change. Our present copyright clearance environment forces filmmakers to pay exorbitant fees and to go through piles of paperwork before their films ever see the light of day. Consequently, many works of art will never be released or even attempted and that weakens our culture and our shared history. We need to move back to the original purpose of copyright and find ways to ensure that creativity is supported rather than unnecessarily stifled. And Congress should positively reaffirm the fair use rights of the public... so that "free speech" doesn't just mean the right to hire a lawyer.

All right, fair enough. Let's have a look at that, given that I ranted about the difference between Civil Rights era divil disobedience and this form of direct action in prior posts. I was responding, in those rants, to quotes by Mr. Guyot, displayed on Downhill Battle's webpage, who wastes no time in encouraging everyone to 'violate laws.'

Back to Downhill Battle (DB for short hereafter) and their rationale. Why are they so concerned for EoTP? Well, they seem to be concerned because the film is 'vanishing from library shelves,' from schools, and the like. They want to distribute it to all comers over the internet in a digital format so that these students and library goers can see the film that they saw and were moved by and that the evil copyright law is now preventing those libraries and schools from showing.

My question to them: Have they read the copyright law?

Necessary preface: I AM NOT A LAWYER!

Having said that, let's trot on over to the U.S. Copyright office, where our government reasonably lays out the current law for our perusal. Using the search box at the top, drop in 'Section 108' which is the section of the copyright law dealing with the rights of libraries and educational institutions concerning works that they already possess. You'll find a result for a .pdf of a publication named Circular 21. Don't be intimidated, it's only 24 pages long; it's a booklet for just this sort of occasion. :-) Let me give you the introductory text (and don't worry, government publications are excluded from copyright protection):

The Subjects Covered in This Booklet

The documentary materials collected in this booklet deal with reproduction of copyrighted works by educators, librarians, and archivists for a variety of uses, including:

  • Reproduction for teaching in educational institutions at all levels; and
  • Reproduction by libraries and archives for purposes of study, research, interlibrary exchanges, and archival preservation.

The documents reprinted here are limited to materials dealing with reproduction. Under the copyright law, reproduction can take either of two forms:

  • The making of copies; by photocopying, making microform reproduction, videotaping, or any other method of duplicating visually-perceptible material; and
  • The making of phonorecords; by duplicating sound recordings, taping off the air, or any other method of recapturing sounds.

Okay. Let's dig in to what else this thing has for us. STUDLYCAPS are my emphasis. Section 108, on page 12:

Limitations on exclusive rights: Reproduction by libraries and archives

(a)Notwithstanding the provisions of section 106, it is NOT AN INFRINGEMENT OF COPYRIGHT FOR A LIBRARY OR ARCHIVES or any of its employees acting within the scop of their employment, to reproduce no more than one copy or phonorecord of a work, OR TO DISTRIBUTE SUCH COPY OR PHONORECORD, under the conditions specified by this section, if --

  1. the reproduction is made without any purpose of direct or indirect commercial advantage
  2. the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it i a part but also to other persons doing research in a specialized field; and
  3. the reproduction or distribution of the work includes a notice of copyright.

Hm, that sounds like it applies to our situation. What else have we got?
(c) The right of reproduction under the section applies to a copy or phonorecord of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, if the library or archives has, after a reasonable effort, DETERMINED THAT THE AN UNUSED REPLACEMENT CANNOT BE OBTAINED AT A FAIR PRICE.
Again, that sounds like us. Now, there is a great deal more information in this booklet, and as others wiser than me have noted, Copyright law is a morass. I am not claiming that it actually explicitly permits this activity. What I am saying is that there would appear to be mechanisms in place by which most of their stated concerns for EoTP are already addressed - mechanisms under which the onus of actually pursuing libraries and schools for preserving their copies would fall on the rightsholders (that is, us) if we felt they were doing wrong. This part of the law has been around for years. While it may be confusing and in need of streamlining, I would suggest that this isn't the part of the law that is 'broken' per se.

What part is? Well, suggestively, Downhill Battle are the ones who defended DJ Dangermouse on the release of the (excellent!) Grey Album. In that case, the part of the law under debate was that of derivative works; that is, the use of snippets of prior art in the creation of new works. I can see how this would relate to Eyes; it is, after all, built partially on the assembly of archival clips of newsreel and interview footage from historical sources. It is the licensing of those pieces of intellectual property that are presently delaying a new release of EoTP.

However, I would argue that the situation is not the same. The Grey Album utilized small sub-parts of larger artistic works - samples. It used clips of larger works, and unless you want to argue that art is holographic (and you might, don't get me wrong) then there is a difference between three bars of a song and the full five minutes. But in the case of EoTP, the clips that were licensed were important because of the thirty seconds or whatever that were used. They were, for example, footage of black students entering a school under the protection of the National Guard - an event fifteen seconds long. All the importance and relevance of that clip was contained in that fifteen seconds - and it was used in its entirety. Comparing the use of that clip to the use of a sample by DJDM is somewhat specious. Although the process of assembling the pieces into a coherent whole can certainly be compared as a process of art, the subject matter is qualitatively different. I (and this is just me speaking, remember) believe that whereas DJDM was using small bits of songs as reference, and samples as homage, EoTP was including relevant pieces of historical record which were licensed in their own right, whole.

Next, since Downhill Battle seems wont to talk about all of this on a philosophical base, let's consider the targets. DJDM's source material is/was owned by large record companies who are/were busy lobbying lawmakers for copyright extensions after the death of the artist to increase corporate profits and the like. EoTP, however, includes in many cases interview footage of still-living individuals, or individuals whose immediate family owns the rights to their appearance - and those are the people who must be compensated for the use of that footage. In those particular cases, those clips aren't even twenty years old. They were filmed by Henry and his team specifically for this movie.

So unlike the DJDM case, we have a film comprised of not sub-samples of larger works, but of the aggregation of complete, smaller and wholly important short clips from the historical record. Unlike artists, that's how news photographers make their money - they can't sit in a studio and produce, they have to run around and hope to God that when fifteen important seconds happen, they manage to capture it on their cameras. When that does happen, then that is their only source of income, and while it's talent that will let them capture it in a manner that lets us their viewers see why it's important, there's an awful lot of luck in their being there at all. So they need to make their living off a few five-second clips. They can't bury those five seconds in a three minute track and force you to buy the whole thing (well, at least, not easily).

Whew. OK, enough for now. I'm trying to blurt all this out, because I see that Blackside's lawyers are now involved. I approve, but I don't want everyone who sees this to think that they are just because Blackside is acting in a kneejerk 'HEY! THAT'S OURS!' fashion. There are multiple sides to this. I happen to think that Downhill Battle has some really good motives. I just happen to think they picked a really, really bad example for their campaign, and my reasons aren't just because I'm connected to it. I think the EoTP controversy has actually precious little to do with the parts of copyright law that they're actually concerned about, and I'm trying to explain why. They need to refocus their efforts on the things that need fixing, and find examples that actually point out why the law is broken and where. DJDM and the Grey Album was a great example. EoTP is not.

Posted by jbz at January 29, 2005 12:42 PM | TrackBack


Reverend Joe... Maybe you didn't get JB's rhetorical point in asking "Have you read the copyright law?". The copyright law already gives libraries the legal right to backup and otherwise transform original tapes for non-commercial archival purposes. The unavailability of these tapes for sale to libraries to replace their old delapidated VHS tapes was a chief complaint cited in the Downhill Battle campaign. So by that reasoning, your clever "Did the Civil Rights protesters read the segregation laws?" would mean that the segregation laws already gave blacks and whites the right to sit at whatever table they wanted and use whichever restroom they wanted.

I think JB is awfully charitable in conceeding philosophical points to the copyfight side. It's pretty funny that Reverend Joe starts off with praise of JB's elloquence and then spends 5 pages telling "Uncle Tom" at him. Damned funny. But typical.

BTW, Reverend Joe... Your "theives" rant is inaccurate. In 1997, Congress passed a law called the NET ("No Electronic Theft") Act. "Theft" itself is a very broad term that encompasses larceny, pilfering, hold-up, robbery and pick-pocketing. And, via the NET Act, copyright infringement for personal gain or when the market value of infringed goods exceeds $1000 in a time period. Work on your facts a little, ok?

Posted by: Brad Hutchings at January 31, 2005 5:30 PM

I've just started following your campaign to prevent people from freely distributing your uncle's work. You speak eloquently and thoughtfully about the issues involved, and make some good points.

That said, I would have had no philosophical issue with downloading EoTP from the DHB BitTorrent links that you, in part, got removed from the DHB website, had I the desire to watch it. I have to tell you, you harm your own case when you speak hypocritically about what the supporters of DHB's campaign are trying to accomplish, and also when you call them "theives" and "pirates". Is it just to call the people your Uncle chronicled "criminals" and "unpatriotic" because they broke the law of the land, unjust as it was?

You say above: "My question to them: Have they read the copyright law?"

My question to you: Did the Civil Rights protesters read the segregation laws?

You are entitled to your opinion of what "parts of copyright law" should be reformed, of course, just as the KKK is entitled to theirs about what "parts of segregation law" should be kept. Personally, I'd like to scrap the whole lot of copyright laws and start over. But when you insult someone for civilly disobeying a law *THEY* find to be unfair and think should be changed, invoking the name of your Uncle in the process, you're just being a hypocrite. And, if it's true your Uncle would be "fuming at" those downloads, then he was a hypocrite, too. It's fine if you want to say you disagree with our assessment that this part of the law is unjust and should be disobeyed -- but keep your insults to yourself -- or expect harsher ones in return.

And when you say, "This isn't about money. This is about ownership, pride thereof, and control of one's creation." -- that's just a flat-out LIE. Of COURSE its about money -- if it's not about MONEY, what is it that you're trying to CONTROL? How could someone distributing your (Uncle's) work for free, for you, unedited possibly diminish your "pride thereof"? It's okay for you to WANT to make money and control people's thoughts and actions as relates to your Uncle's work. I disagree that you should be allowed to do so, but, hey, disagreements are okay in a democracy (wish we lived in one, now that I think of it). Again, you can WANT anything you like. But don't be a liar about your motivations, if you expect any respect from us copy-fighters.

It also can't possibly be about "control of one's creation", because that *one* is not around to control ANYTHING. One of the reasons this country rebelled against the throne was their legislating that the successors in interest could lord the rights of dead authors over those of the currently-living citizens, which is, in fact, exactly what you're trying to do. It is the law of the land, but, as your Uncle realized, being the law doesn't always make a thing _right_.

It also CAN'T be about "ownership". The term "Intellectual Property" is a non-sequitur, coined by lawyers and the copyright cartel to enhance their "stealing" and "piracy" rhetoric campaigns, which you have apparently been duped into buying into unquestioningly. Are you aware that the purpose of copyright law is expressly NOT to create "property" to be "owned", as you put it? That part of the law that made creations PARTIALLY ACT like "property" was considered by the Framers a necessary EVIL to accomplish their stated ends ...

So, we're left with money and "control". Control for you or other dead author's heirs to lord over the public to prevent them from speaking freely, thinking freely, and doing as they please with what they've purchased and / or elsewise obtained. Control that allows you can retain your rights to make more money from the creation. Control which has been PROVEN time and again, at least in certain situations, to work contrary to the actual purpose of the Progress clause.

Again, this if fine as a motivation, and you're (obviously) entitled to your support for it. But be honest, intellectually, if you expect the same.


"They need to refocus their efforts on the things that need fixing, and find examples that actually point out why the law is broken and where." -- You realize of course, that because YOU think the law is OK at one spot, doesn't mean WE think the same way -- I, for example, believe we could promote the progress far better by restricting government-granted monopolies to 5 years or life of the author, whichever is SHORTER, and making ALL non-commercial copying implicitly legal. So it's YOU who are focusing you're efforts incorrectly on "where the law is broken", at least if it's ME who's doing the judging.


Next bit of irony -- you complain that:

"even if it is legitimately impossible to identify who owns a particular clip (due to death, loss of records, etc. etc.) it may still be either impossible or prohibitively difficult to ever package, sell or publicly show any work containing that clip again - even if it is a five-second newsreel clip from fifty years previously."

Isn't this rich? Let me see if I can follow this ... you feel draconian restrictions and complete, no-registration-necessary control over everything from a scribbled doodle on a scratchpad to interview archival footage is BAD when it bothers YOU, the documentary maker / heir, but the same sorts of draconian restrictions on the PUBLIC, long after both the author and a meaningful period to exploit the work commercially are long expired, are GOOD policy, because it HELPS documentary filmmakers financially. Hmmm, I think I start to understand your motivations in this debate, finally.


"But please don't tell us you're a crusader because you're telling people to steal his hard work."

Let me explain something to you if you're going to continue to engage copy-fighers in this manner. You open yourself to endless abuse with this kind of rhetoric. There is nothing going on in this controversy that involves stealing. As you may or may not be aware, stealing involves taking something away from someone who already owns that thing, so that they no longer have it. What is happening to you / your Uncle's estate is called copyright infringement -- thats what we call it when someone violates the U.S. Law that maintains an artifcial monopoly for one party over the copying of some creation by everyone else. Calling the people who do violate that law for non-commercial purposes "thieves" is about as accurate as call those who violated segregation laws "terrorists". And the motivations behind the two inaccuracies are pretty much the same, as well.

How does the following sound to you?

"But please don't tell us you're a Civil Rights Activist because you're telling people to commit acts of terrorism and other law-breaking."

Posted by: Reverend Joe at January 31, 2005 3:02 PM
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