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White House Considers Joining Publishers To Stamp Out Fair Use At Universities (techdirt.com)
116 points by sethbannon on Jan 31, 2013 | hide | past | web | favorite | 39 comments

I am puzzled that stories like this surprise people.

Ever since Obama picked Joe Biden as his VP, it was clear what his administration's default stance on copyright issues would be. If you wonder why I say that, https://www.google.com/search?q=joe+biden+copyright provides lots of starting places to learn more.

Am I the only one around here who actually researches the candidates that I'm presented with to see what they think about issues that I care about? I thought (and still do) that Obama was the lesser of 2 evils both times. But I'm well aware that I do not agree with this administration on a number of issues, and copyright is one of them.

Don't imagine there is or ever was any difference in the positions of Democrats and Republicans on copyright issues. The Copyright Act of 1976 passed 97-0 in the Senate and 316-7 in the House. More recent major copyright legislation, the DMCA and CTEA, passed without even recording individual votes (voice vote or unanomous consent).

The US copyright law has been dictated by the media industry for a long time in something akin to regulatory capture[1]. Their lobbyists and lawyers literally write the law[2]. A revolving door sees former senators heading to cushy jobs at the MPAA pass RIAA litigators headed to the Copyright Office.

This is why the failure of SOPA was so shocking to the political and media establishment. Instead of the general public being fleeced for a few extra dollars every time they bought a movie or album, large businesses like Google had billions of dollars at stake and they wanted their interests to be taken into account.

[1] http://en.wikipedia.org/wiki/Regulatory_capture

[2] http://www.theatlantic.com/technology/archive/2010/10/google...

I don't imagine that there is a difference. Both sides vote for horrible copyright legislation. Both try to keep the horribleness secret from everyone except the lobbyists until the last moment. Both are happy to use secret international treaty negotiations as a way to keep those secrets. There is no difference, which is why it was big news that some on the Republican side considered doing otherwise.

My point was that this is obvious to anyone who does a little research. Therefore seeing the government serving copyright-holders' interests is no surprise.

Completely agree. Although he has lots and lots of company, Biden really is one of the worst on many issues of interest, for example privacy[1]. And it's ironic that he often presents copyright as a moral issue, equating copyright violations with theft, when he was caught copying 5 pages out of a law review article in 15 page paper he submitted in law school[2] and then there is the plagiarism in some of his speeches[3].

[1] http://www.wired.com/dangerroom/2012/12/joe-biden-private-em...

[2] http://www.nytimes.com/1987/09/18/us/biden-admits-plagiarism...

[3] http://www.slate.com/articles/news_and_politics/history_less...

Yes, they are all the same. Except that some are much more the same than others.

There would have been few you could pick that would have made me less happy than Biden. Unfortunately two on that short list are Sarah Palin and Paul Ryan.

Every representative who joined the net neutrality alliance was defeated[1]. The six companies that control the mainstream media are very in favor of copyright and against net-neutrality. Without the media's support, or at least lack of hostility, a candidate is mute and the publics perception of him/her is distorted.

[1] http://precursorblog.com/content/all-95-pccc-net-neutrality-...

Circa 2010, and a list composed of Democrats in what proved to be a dismal election for liberals overall.

As events since have shown, awareness is still spreading.

Hmmmm...hint of conspiracy theory; xenophobia; out of context quotes from law; no idea how fair use actually works; extreme hyperbole; general cluelessness.

In other words, a typical Mike Masnick piece. I do not understand why anyone takes Techdirt seriously.

Yeah, I CANNOT IMAGINE why anyone would assume anything ill of the revolving door between business and government, what a bunch of conspiracists. You also might want to learn what the word "xenophobia" means since at no point in this article does it discuss foreign actors or organizations.

> You also might want to learn what the word "xenophobia" means since at no point in this article does it discuss foreign actors or organizations

"Two out of the three publishers are foreign publishing giants"

"funding some foreign publishers"

"supporting foreign publishers"

Yeah but it has nothing to do with the fact that they are specifically foreign but pointing out yet another point of ridiculousness with the administration's position on this matter given this is 2/3rds foreign agents vs American colleges. Xenophobia is just a ridiculous accusation by OP to personally attack the author of this article.

Not to nit pick but...

"Two out of the three publishers are foreign publishing giants..."

The point is that the President of the United States, supposedly the representative of Americans, is directing his administration to protect the financial interests of foreign companies to the detriment of the academic mission of an American university. That is not really xenophobia, at least not in my view...

"no idea how fair use actually works"

Fair use is decided by a judge; there is no specific rule about it. You have no better understanding of how fair use "works" than the author of the article does, because two seemingly identical actions can diverge on fair use.

The real problem here is that we have a President whose administration thinks a university is doing something wrong by making information available to its students using the best resources it has at its disposal. Yet somehow, mass numbers of the university students I encountered last fall were campaigning for that President and his administration...

Factors to be considered are not hard and fast rules. A judge needs to consider the factors; there is no specific threshold, combination, or minimum number of factors that must come into play. This is meant to be decided by judges.

Yes. I believe the point is that, although the law includes the word "education" [oops: "teaching"], that does not automatically exempt colleges from copyright law, as techdirt seems to imply.

for those of us just following along from home, care to provide some specifics, the nature of the fair use misunderstanding, and where xenophobia, conspiracy theories reside in this article ?

He quotes a part of the copyright law that is giving examples of the kind of things that might be fair use, and then cuts it off before it gets to the part where it lists factors to be considered when deciding if a particular use is fair use. He seems to think that anything that falls under the examples is automatically fair use.

The xenophobia comes from the several needless mentions of the fact that some of the publishers are foreign owned.

The conspiracy theory stuff comes from the part about someone who once worked for the RIAA now being at the Copyright Office. If you follow the links, you find that the former RIAA person was a litigator for the RIAA. Yawn. Litigators are the hired guns of the legal profession. You can't tell much about a litigator's views on policy issues from who they have litigated for.

Before the RIAA, she was a litigator at a private firm. Before that she worked at the DOJ working on civil rights cases. Before that she was a clerk for a Court of Appeal judge. Before that she was editor of the Columbia Law Review.

The main reasons a litigator would typically jump from a private law firm to an in-house position would be (1) more frequent or challenging cases, and (2) money.

> He quotes a part of the copyright law that is giving examples of the kind of things that might be fair use, and then cuts it off before it gets to the part where it lists factors to be considered when deciding if a particular use is fair use. He seems to think that anything that falls under the examples is automatically fair use.

This is a frequent misunderstanding...and one that seems to keep escaping TechDirt writers over the years. "Fair" in this case does not mean "noble"...as in, "well, educating inner-city schoolkids is noble, so it's OK for me to torrent the latest Harry Potter movie as part of our fiction reading unit."

That may be indeed a noble use, and I bet you could get any number of people/companies to donate you the DVD for it, but it's not a "fair use."

I'm not sure it qualifies as "xenophobia" per se (i.e. "intense or irrational dislike or fear of people from other countries"). The point seems to be that the politicians are acting against the interests of their own, American constituents, not attempting to incite an irrational, automatic mistrust of foreigners.

Also, usually, xenophobia is directed at people, not companies. But I suppose that can be a blurry distinction where law is concerned :) You are quite fair to point out that we don't know exactly what they will say yet. Ironically, when we do know, it will be far too late for outrage to change things.

Finally, I should point out that way back at the start of Obama's administration, there was an influx of litigators going from the RIAA to the DOJ. I believe you can find posts by one Ray Beckerman on that subject if you look for them and people have been noticing a trend ever since. I think people became more sensitive to the politics of hiring people at the DOJ after all the Bush-era controversies over that.

EDIT: Found one of the articles. Here's a post about that issue from 2009 - http://recordingindustryvspeople.blogspot.com/2009/04/anothe...

From that article: "[Ed. note. I now know of 6 RIAA lawyers who have joined the Justice Department under the new administration. Under the law, these lawyers are all recused from involvement in any matter involving the RIAA or EMI, Vivendi Universal, SONY BMG, or Warner Bros Records. -R.B.]"

> The very first Copyright Act in the US was actually titled "An Act for the Encouragement of Learning." Current copyright law is explicit that fair use covers this sort of situation:

(the OP links to here:) http://www.copyright.gov/title17/92chap1.html#107

> Notwithstanding the provisions of sections 106 and 106A, 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

It appears to me that the OP is misreading the law. From what I can tell, the law says that if a copy/reproduction of a work is fair use...including for classroom purposes...then it is not an infringement of copyright.

The OP interprets this as: "If something is reproduced for classroom use, then it is fair use"

That is not at all correct. Check out this primer about fair use and education: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/...

The short summary of it is: You can't just copy whatever you want for purposes of teaching and assume that it is "fair use".

Maybe someone more well-versed in the law can correct me, but from what I can tell (I've had some education in this, but not a formal law degree), the OP is quite a bit wrong in his assumptions.

Those appear to be Stanford's own guidelines on the subject. As far as I know, there are no actual hard and fast rules and one has to decide on a case-by-case basis after applying the four factor test. That part of the statute seems to be there because legislators believed that making a bunch of copies of something for classroom use was likely to be fair use and there was enough concern over protecting that use case to mention it explicitly.

Incidentally, there are many sets of guidelines like the one you cite. Here are a couple others:



There are no "hard and fast rules" on fair use, just as there are no "hard and fast rules" about what makes slander, slander. Or what makes police brutality, brutal (in an illegal sense). But yet both are still against the law.

I'm not saying that it's easy to define fair use. I'm saying the OP seems to have a dishonest reading of the law if he's trying to assert that "fair use" means academia can reproduce copyrighted work and consider it "fair" because it's for educational purposes. That is completely missing the entire concept of "fair use".

The fact is that a teacher making a bunch of copies of something as hand-outs for their class is so common and benign a use case as to be mentioned in the statute, just to ensure that it could not be precluded by factor #3. Educational use itself is part of factor #1.

In any scenario where a teacher was copying educational materials for a class, I would have a hard time seeing it as anything but fair use barring unusual circumstances. Which was, I think, the point they were trying to make.

If a student starts working at a company and uses such info. Then that would make some companies get information for free. While other companies or private persons have to pay for it. that's unfair it discriminates people and companies. The law should be equal to anyone and not favor some lucky. Basically any tax payer makes universities possible and so all their information should be free.

I think you have a bit of a misunderstanding of the situation here. Fair use covers how much of a copyright-protected work can be reproduced, not whether a work should enjoy copyright protections (as opposed to being put out in the public domain).

If Democrats are in favor of expanding rights for copyright holders, why did the Republicans a few months ago back away so far and so fast from their policy memo exploring opposition, to the level of firing the person who wrote it (never mind that it appears that it went through the correct channels to be published with the party's name on it)?

What copyright reform needs is someone with deep enough pockets to be able to b̶r̶i̶b̶e̶ lobby politicians effectively. Or perhaps a general public that understands and cares about the issue...

Because they're all part of the same organization?

What copyright reform needs is better software and a healthy mocking of those who think supporting a cartel is hip when it involves iToys.

Damnit, Aaron, we still need you.

You can start the effort your self. Stop relying on others to do what you feel passionately about.


I get that there are decisions in elections, and I get that on the issues YOU care about YOUR party is infinitely better than THEIR party, but when both parties just do the bidding of anti-democratic big business elites it just seems impossible to ever make things better, and the accumulation of these seemingly small steps continues. Stories like this ruin my day, not in isolation, but precisely because of the pattern of behavior in our body politic that they reprsent.

America has some of the finest laws that money can buy.

Right there is the issue and America is going to continue to get ridiculous laws while the lobby system exists.

Well... think about it. If a professor was allowed to post the textbook --or even just pieces of it, say, the homework problems or example problems-- what use then would a student have for the textbook? Nobody would buy Fundamentals of Chemistry 50th Edition!

Clearly such actions are not fair use.

I honestly just assume at this point if there's a way for the Obama administration to dick over the public in favor of their corporate masters, they're going to jump on it. This has become typical and expected behavior from this hypocritical "transparency"-baiting group.

America seems to produce the best media content in the world (at least in terms of demand), and the best academic content (at least in terms of citations). Does that indicate that the legal system etc. surrounding media and copyright is probably pretty good?

This ties in perfectly with another link presented on HN today: http://www.schneier.com/blog/archives/2013/01/power_and_the_...

This is outrageous.

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