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Is 'Fair Use' Unfair To Humans? 259

Posted by Soulskill
from the iguanas-have-had-it-too-good-for-too-long dept.
An anonymous reader writes "This article in Wired advances the idea that humans are losing the copyright battle against machines because the fair use laws are tilted against them. The writer wanted to include photos in his book, but the licensing fees were too high. The aggregators, though, like Google, are building their own content by scraping all of the photos they can find. If anyone complains, they just say, 'Fill out a DMCA form.' Can humans compete against the machines? Should humans be able to use the DMCA to avoid copyright fees too? Should web sites be able to shrug and say, 'Hey, we just scraped it?'"
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Is 'Fair Use' Unfair To Humans?

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  • by intermodal (534361) on Wednesday August 07, 2013 @03:21PM (#44501293) Homepage Journal

    In today's age of machines that exist almost exclusively to copy and fiddle about with data, the concept of copyright is quaint and outdated. Gone are the obstacles to distribution and duplication that existed in days gone by, and as the past decade or two has shown us, dropping copyright as a concept will do nothing to deter people from creating new works, only remove the incentive for people to create static media for a living.

    I fully recognize the benefits that copyrighted works have provided for us in the past, and the incentive it provides for new creation. However, I'm not sure copyright deserves to survive in today's technological world when it does as much to deter creation and innovation as it does to foster it.

    • by alen (225700)

      so what content have machines created all on their own?

      • by JMJimmy (2036122)

        http://vimeo.com/68859229 [vimeo.com] eDavid - nuff said.

      • Well, here's an algorithm that generates music [wolfram.com]

    • by bill_mcgonigle (4333) * on Wednesday August 07, 2013 @03:35PM (#44501497) Homepage Journal

      However, I'm not sure copyright deserves to survive in today's technological world when it does as much to deter creation and innovation as it does to foster it.

      Right, the unfairness that this guy is talking about is for the book authors, and his suggestion is less freedom for the web authors. Classic mistake.

      Copyright itself is less than 500 years old - a response to the technology of the printing press (along with some misguided economic thinking in the 1600's - Adam Smith hadn't even published yet), and given our means of mass-communication today, we've moved past it. Technology changes, and the rules of the game need to change along with it.

      For the US, it should have been obvious to the framers that taking away the property rights of (Everybody - 1) for the sake of some "rights" to imaginary property for one person was an error, but at least they had the idea that it should be only for real people and only for a short time, if it was at all. Madison massively underestimated the ways that people will twist a well-intentioned but flawed system for their own sociopathic benefit. That "limited times to an author" can be held to mean "for a corporation, a century after an author's death" should be evidence enough that the mechanism has failed.

      He rightly says:

      As a creative worker, I understood sharing with the photographers

      But from that assumption he ought to conclude that creative workers will reward other creative workers because they're decent people, not because somebody has a gun to their head forcing them to do so. The 4% of people who will freeload are not worth imposing tyranny on the other 96% so that a corporation can profit from Transformers 3 in the year 2149.

      Another gem:

      In other words, the machine isnâ(TM)t just a dumb hunk of silicon: It's a living creator.

      And I thought copyright was an out-there fantasy. The author is right to raise the issue of unfairness, but more unfairness isn't the solution.

      • by Type44Q (1233630) on Wednesday August 07, 2013 @03:59PM (#44501765)

        For the US, it should have been obvious to the framers that taking away the property rights of (Everybody - 1) for the sake of some "rights" to imaginary property for one person was an error, but at least they had the idea that it should be only for real people and only for a short time, if it was at all.

        Not re: copyright per se but entirely relevant nonetheless:

        "Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices."

        - Thomas Jefferson

        • Great quote, thanks. No wonder they shipped him over to France while the Constitution was being forced through.

        • "... other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices."

          But copyright was a relatively new concept at the time. History since pretty clearly shows that those countries that had it fared FAR better than those that did not.

        • by Raenex (947668)

          I think Jefferson was informed wrongly: http://en.wikipedia.org/wiki/History_of_patent_law [wikipedia.org]

      • Well, then what is the solution? How would you pay the authors, musicians and photographers? Or will they need to get day jobs to fund the work while the aggregators get rich?

        • Nothing entitles people to be able to earn a living doing what they love. There's no guarantee that it will happen. Many of them will need to get a "day job" just as many do today. They can attempt to sell the products of their effort and if there's no market for it then they need another source of income. This also doesn't mean that book, songs, and pictures will cease to be created. It just means that the people doing it will be doing it most likely for "love of the game" and not the money.
          • by idontgno (624372)

            This also doesn't mean that book, songs, and pictures will cease to be created. It just means that the people doing it will be doing it most likely for "love of the game" and not the money.

            Besides, "starving artist" needs to be more than a cliché.

          • I see no reason to believe that the number of people that create books, songs, pictures etc. for a living will go down if copyright is done away with. It's easy to get any book, song, or picture for free; but people still pay, and I believe that most of them do it because they want to support the creator, or because it is faster/more convenient to them to pay; and only a few do so because they truly want the item but believe violating copyright is wrong.

            I really believe MORE people will be able to make a
          • by hedwards (940851)

            I disagree, apart from a few phenomenally talented individuals, creating something that will move the art form ahead, takes a huge amount of time and energy. Sure, there will be exceptions, but the truth is that to fully develop ones ability to shade or to make marks on a canvass takes years. To draw as well as Jim Dine, would take decades, if you're even capable of drawing that well.

            Day jobs might be necessary, but they shouldn't be necessary because we don't provide adequate protections to them. The money

        • Well, then what is the solution? How would you pay the authors, musicians and photographers?

          "How will the cotton get picked?" Even if we don't have a better solution now, in light of the lack of a clear market for such solutions, that's still no justification for doing what we know to be a wrong thing.

          But Creator Endorsed [questioncopyright.org] looks like a good pass at a replacement system.

        • How would you pay the authors, musicians and photographers?

          Uh, you'd had them money, or send them payment via paypal, or via Amazon, or some other payment processor? And they'd get a much bigger chunk of that money, because there would no longer be a publisher taking a cut.

        • by ultranova (717540)

          Well, then what is the solution? How would you pay the authors, musicians and photographers?

          Commissions for artists and photographers, concerts for musicians. Writers are trickier, but not impossible; the problem is largely because of the false dichotomy between "eternal absolute copyright" and "free for all". Bookstores are still in business, after all, and there's no reason why "copyright" couldn't simply mean that the author gets a mandatory cut of the sales, for example.

          Or will they need to get day job

    • by Darinbob (1142669)

      So you're saying static media is outdated and deserves to die a painful death?

    • by Anonymous Coward on Wednesday August 07, 2013 @03:38PM (#44501537)

      Getting rid of copyright only helps the very same megacorps that Slashdot whines about. Why would any of the MPAA/RIAA member companies, for example, need to pay any royalties to their artists when they could just swipe the work for themselves and be done with it? The only reason they pay artists anything is due copyright law.

      • Holy fuck steaks, this is the most ridiculous thing I've read all day, and I've been to 4chan.
    • The problem we have now is trying to make personal creativity profitable again.

      The Copyrights and Patents were the way to solve the problem historically. The person was creative and made something they had rights to the idea. This was all fine and good because printing information or making stuff was hard, and we needed a lot of capital do such. So the creative person gets paid by the idea with the price built into the cost of producing.

      The cost to produce has gotten cheaper and easier, and all we need i

      • by jez9999 (618189)

        Creative Professionals needs to make a living, however the price of their ideas have reached free. So we need to really think of how to reward creative professionals.

        Or we need to ask whether our society does indeed owe a living to "creative professionals".

      • The cost to produce has gotten cheaper

        Not quite. The cost to REproduce has come down dramatically. The cost to PRODUCE works in the first place is higher than ever.

        That is almost certainly due in part to celebrity stars and their demanding agents, at least in some creative industries. However, it is also because many of the works that are produced today have far greater production values than anything we produced as a society even a few years ago.

        I think any case against copyright as a principle (as distinct from abusively distorted copyright i

      • The problem we have now is trying to make personal creativity profitable again.

        Profit is not necessary to make people creative. Plenty of people play in garage bands. Others write, and give away, free software. Police arrest people for painting free murals on buildings, proof that people will continue to create even if we actively try to discourage it.

        • by idontgno (624372)

          Police arrest people for painting free murals on buildings, proof that people will continue to create even if we actively try to discourage it.

          That's a good analogy. Especially considering history.

          You're arguing that you eliminate the rent-charging ability of copyright holders over creativity, and that the price of the products of creativity will be driven to zero, and everyone will be their own maker and composer and artist.

          Here's what will actually happen: guilds. Instead of a limited monopoly on specif

    • by sycodon (149926)

      I'm trying to think of where our education went wrong to the point that people like you think you should get free stuff just because it's easy to do.

      If Ansel Adams were alive today, you would deny him the right to profit from his efforts just because it's easy for you to copy photos.

      You don't see anything wrong with that?

      • In the context of the world Ansel Adams lived in yes of course. In the world today and going forward? Maybe not. The way this system works is changing and Ansel Adams today could still charge money for prints of his photographs. Most likely he couldn't make the enormous amount of money he made in the past because once a picture had reached a wide enough level of distribution someone would scan it and let fly a free copy of it. Right, wrong, I'm the one with the wide-format scanner. What could Adams do to of
    • by Feyshtey (1523799)
      So how does a creator put food on his or her table if anyone and everyone can copy what as little as one person paid for?
      • He has to find people that like what he creates so much that they are willing to pay so that he can put food on the table, and therefore live to create more.
        Limiting the amount of people exposed to his creations with copyright law actually works against that.
    • "In today's age of machines that exist almost exclusively to copy and fiddle about with data, the concept of copyright is quaint and outdated. Gone are the obstacles to distribution and duplication that existed in days gone by, and as the past decade or two has shown us, dropping copyright as a concept will do nothing to deter people from creating new works, only remove the incentive for people to create static media for a living."

      I disagree completely. I think this view comes from a lack of understanding the actual history of copyright (including recent history), and a rather astounding and unjustified leap from "somebody used a thing to do harm" to "we need to abandon the whole concept of that thing".

      First, I do not believe that "the past decade or two" have demonstrated anything like what you assert. Certainly, we have seen some recent, bad, changes in copyright law and observed the resulting bad effects. A good example is almo

  • It isn't enough to DMCA something. IF you have a copyrighted work, and GOOGLE uses it for commercial purposes, then sue them, and scraping an image (or whatever) to put into a database, which they offer for free, to sell advertising IS commercial use. Sue them. DMCA is just the first step in stopping their usage. SUE THEM for commercial use of your works.

    Also, using the tools built into web standards (i.e. "robots.txt") is your friend. IF you post something copyrighted on the internet, it will be "stolen" b

    • bullshit (Score:4, Insightful)

      by iggymanz (596061) on Wednesday August 07, 2013 @03:26PM (#44501377)

      tough talk is easy.

      reality is you'd need to be paying lawyer $275 or more an hour for about 700 to 1500 hours plus expenses. who here has that kind of income to gamble? I do not.

      • If your $275/hour lawyer can't resolve a simple copyright case without spending a year of near full-time work on it, your lawyer isn't worth $275/hour. The essential facts in the case are unlikely to be disputed, so the result is likely to depend on two fundamental questions of law, at least in the US: roughly speaking, can they escape via fair use, and can they escape via the DMCA safe harbor provisions? Even if you litigated it all the way, you should still be done in no more than a few hours of court tim

        • by iggymanz (596061)

          those are real numbers for simple copyright case, look it up. Also, simple patent case averages twice to three times as much, again that 's fact.

          I have lawyers in family, you however are talking out of your ass

          • If you actually had lawyers in your family, and you had learned anything from them, you would know better than to claim things like "those are real numbers for a simple copyright case" without citing that case properly. You would also know that patents and copyright are completely different legal areas, and that "simple patent case" is pretty much an oxymoron.

            Another thing that's easy is claiming your personal views are facts while not giving anything verifiable to back them up, but that also doesn't make a

    • I'm confused about why Google using things for commercial purposes in this way is a bad thing. If someone searches for something, and Google shows them my image, it doesn't matter to me that they have ads on the side (that the person is likely to ignore anyway); that's another person exposed to my image, and quite likely to click and go to my site (as it is, presumably, relevant to what they were searching for). Then I'm making a few pennies because they're viewing my ads, maybe a few more pennies if my ads
  • Scrape them yourself in a semi-automated way, host them somewhere and provide a way to submit a DMCA take-down notice.

    Done and done.

  • by stewsters (1406737) on Wednesday August 07, 2013 @03:24PM (#44501349)
    Put this in a file called robots.txt on the root of your website:

    User-agent: *
    Disallow: /

    Boom. Your images wont get illegally used by Google. You can send me the money your would have spent on lawyers.
  • by Ralph Spoilsport (673134) on Wednesday August 07, 2013 @03:37PM (#44501527) Journal
    No. Copyright is absurd. If copyright wasn't such a total clusterfuck, fair use would not be an issue.
  • Instead of hosting use an iframe linking to their site. Then they'd have to DMCA themselves since you aren't hosting a thing.
  • I saw what you did there. "The aggregators" that tell you to fill out a form aren't machines, they are corporations.

    Nice try though.

    -- MarkusQ

  • by DerekLyons (302214) <fairwater&gmail,com> on Wednesday August 07, 2013 @03:58PM (#44501737) Homepage

    The author of TFA is deeply confused - she can't distinguish between pictures used as content (what she wanted to to, and not fair use), and pictures used as links to content (a murky grey area under fair use). Because of her inability to distinguish the difference, she feels unfairly treated.

    • by Warhawke (1312723)

      This isn't as straightforward now as it used to be. Google has now introduced full-sized image search which allows people to pull images directly from their Google search page rather than linking to the source page. Once upon a time, Google was able to get away with this because it only linked small-sized thumbnails that weren't suitable replacements to the original. The searcher actually had to link to the page to get the content, as you point out.

      Now, however, the searcher can get the content, full-sized,

  • In your example, the writer is actually copying the photos into his book. That's one thing. Google, OTOH, isn't publishing a book containing copies of the photos. They're creating an index of photos that exist. To make it minimally useful, that index has to include a thumbnail or other depiction of the photo so viewers can tell whether that's the image they were looking for or not (a prerequisite for deciding whether they want to go to where that image is published or not). I'd say that if a writer wanted t

    • by omnichad (1198475)

      But Google's not completely innocent in even that. Clicking the thumbnail shows you a high-res image. They even provide a direct "View Original Image" link that allows you to download someone else's image without even visiting the web page. In fact, they're an enabler to the very author the example gives.

      • by Todd Knarr (15451)

        That's why the second paragraph. It IMO makes a difference when Google's showing only what anybody could grab without paying or having any strings attached. It's like a publisher complaining about bootleg copies of the flyer that they left stacks of outside on the unattended table with the "Take One" sign over them. I'm not going to classify that in the same category as bootleg copies of the books inside the store that nobody can walk off with without paying (or making a deliberate effort to steal).

        As far a

        • by omnichad (1198475)

          But Google is direct-linking the image and not the page. It's just not very nice to web content owners. Even if it's just as legal.

          Bad example on broadcast radio - the artists get royalties on that.

    • by Dcnjoe60 (682885)

      In your example, the writer is actually copying the photos into his book. That's one thing. Google, OTOH, isn't publishing a book containing copies of the photos. They're creating an index of photos that exist. To make it minimally useful, that index has to include a thumbnail or other depiction of the photo so viewers can tell whether that's the image they were looking for or not (a prerequisite for deciding whether they want to go to where that image is published or not). I'd say that if a writer wanted to do the same thing, publish an index of where all these works were with thumbnails of them, they ought to be able to do it under fair use just like Google does. But producing an art book with full-size high-quality reproductions of the photos wouldn't be producing an index.

      Also, Google only creates an index of what the publisher has made publicly available. So what Google reproduces on their pages is by definition something the publisher isn't getting paid for when people just look at it. Google doesn't go behind paywalls or subscription barriers to find things, unless perhaps the publishers have explicitly coded their site to give Google that access for free and in that case IMO it's the publisher's look-out. To me it makes a difference in what's "fair" when you're handing out full-sized copies for free, no strings attached, to anybody who grabs one off the table vs. if they can only get them by coming into your shop and plopping down their money first.

      So, based on your reasoning, I should be free to include small images of all of those pictures in my paper printed catalog because like Google, I would simply be creating an index and for it to be useful requires a thumbnail. Of course, there is ample case law specifically against that in printed material, so the real difference then is that if you do it on paper media, it is a copyright violation, but on-line it is not? That doesn't hold water, either, which is why Google says to file a DMCA complaint.

      No

  • by GameboyRMH (1153867) <[gameboyrmh] [at] [gmail.com]> on Wednesday August 07, 2013 @04:10PM (#44501881) Journal

    Humans don't have limited liability protection, can go to jail, can't transfer their lives to another under a different name, can't claim income through a different tax jurisdiction, and aren't immortal.

    • Limited liability corporations are by their very nature subsidies for the wealthy on the assumption that such entities tend to serve the common weal more than often enough. To use the language of Ayn Rand, they exist because of an intrinsically Collectivist moral argument that presumes running roughshod over individual rights can be justified by a plausible appeal to the greater good. I am not advocating for abolition, but we should recognize that a nominally fair playing field between fictional persons a
      • Limited liability is a subside from the wealthy to the entrepeuner. And the subside is actively granted when the wealthy decide to hold an interest on each entrepeuneurship, it's a completely opt-in system.

        That is, except when any government money enters into the question.

        • It is opt in except when it isn't. A corporate entity can damage a non-consenting individual. Pollution would be the obvious example, but there are others.
  • Humans aren't losing out on content to machines. Yes, Google and others scrape content, but they aren't machines. They are corporations owned by other humans. All this article is about is small players not being able to compete against big corporations. That has almost always been the case. The fact that laws like the DMCA make it even harder for small players to compete just aggravate an already imbalanced system.

    The middle ages had a feudal system, the modern world has a corporate system. In the middl

  • should we forget about copyright already? sure enough.

  • The commenter is confusing the actions of corporations with the productive assets they utilize. A machine may scrape a site, but it took a human - usually following the guidance of her/his employer - to set the machine in motion. A corporation, especially a corporation of > 1, can distribute the work of collecting copyrighted material, hosting it, organizing a sales effort around it, responding to the bitching and moaning, and seeing to any resulting adjudication.

    A person, motivated by fun, or acting as

  • "copyright" itself is by definition an unfair concept (it attempts to combat one kind of unfairness with another) so it stands to reason that anything else that comes from it would also be unfair. (Ditto for patents.)

    I mean, you do know that it's a totally made-up concept, right? Copying is a true human right. We have eyes with which to see, ears with which to hear, brains with which to remember and analyze, mouths with which to speak or sing, and hands with which to create. If I watch someone make a chair,

  • by walterbyrd (182728) on Wednesday August 07, 2013 @06:41PM (#44503505)

    already publicly available?

    And this is some great injustice . . . how?

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