A client of mine received a DMCA claim from IFPI on a blog post he wrote 12 years ago. IFPI sought removal a Creative Commons licensed song that was featured in WIRED magazine. The website host (Harvard) took the content down, despite the fact that the material in question was clearly lawful. This reflects both IFPI's questionable takedown tactics, and the failure of the DMCA to provide sufficient disincentives for such bad behavior.
Here's our response.
In today’s digital world, kids are constantly making things that are protected by copyright. Actually, this was always the case, but before the Internet, no one really asked questions about who owns the rights in that “What I Did This Summer” essay. But now that kids are making digital art, coding games and apps, and otherwise fully participating in our digital culture, teachers, librarians, and parents wonder how copyright works when it comes to kids.
The general answer is that copyright works for kids the same way as it does for adults. Copyright protection vests in a child’s work automatically upon creation, and that protection covers the same rights and lasts for the same length of time as it does for adults.
The question that seems to come up more often than any other though is: who owns the copyright when a kid makes something, let’s say a game or an app, as part of an assignment for school or in a library program? Under almost all circumstances, the answer to that question is the kid, not the school or library. That’s because the Copyright Act grants ownership to the author of the work, (in this case, the kid) unless the work is a “work made for hire.” Copyright law defines this as a work “prepared by an employee within the scope of his or her employment” or one that is created by an independent contractor that falls within nine specific statutory categories with a written agreement between the parties designating that the work is made for hire. Usually, school children will not be considered employees or independent contractors by a court.
So, when schools, libraries, and other institutions who work with kids who code begin to think through their policies and practices around copyright, they need to understand that the institution (usually) is not the owner of the material these kids are creating. One great option for institutions is to encourage the use of Creative Commons licenses on kid-produced material. This allows the institution the full ability to showcase the material, for example on a school or library website, but allows the kid to retain ownership of the copyrights in his or her work.
Note that state law may regulate contractual relationships and/or business dealings involving copyrights owned by minors. I recommend consulting an attorney licensed in your state if you have specific legal questions about how these state laws might impact you, your institution, or your child.
Today the Second Circuit issued its ruling in the long awaited appeal of the HathiTrust case, and it's a big win for the libraries. The court held that scanning entire books to create full-text search capabilities, allowing access for the print-disabled, and for back-up purposes is fair use. Unfortunately, the court remanded the question of whether copying for the purposes of preservation is fair use, which means we will have to wait a while longer to get a decision from the lower court on that issue. The reason for the remand is a good one, however -- the Second Circuit wants the lower court to determine whether the plaintiffs even have standing to assert copyright claims on this issue in the first place.
To me, one of the most interesting things about this decision was the ruling that providing access to the print-disabled is fair use despite not being a transformative use. This is a good reminder that although transformative uses are favored by fair use, they are not necessary. Where the purpose of the copying serves other important goals, such as ensuring "equality of opportunity, full participation, independent living, and economic self-sufficiency" for the blind and print disabled, those purposes can also be fair.
All in all, good news for libraries and the reading public.
Last week, The Samuelson Law Technology & Public Policy Clinic at Berkeley Law announced the release of "Is It In the Public Domain?" This is a handbook, along with some very helpful visual aids, that can help you figure out whether a work created between 1923 and 1977 is in the public domain and therefore free of copyright restrictions.
Why is this an important tool? Well, as anyone who has attempted to figure out whether an older work is actually in the public domain can tell you, it is no easy task. While there are other tools out there that can give you a basic approximation of public domain status, nothing else out there (to my knowledge) does so with the level of detail and accuracy that could actually be relied upon. In an era when universities, schools, libraries, museums and other cultural institutions are seeking to find digital means to preserve and give access to cultural heritage via "mass digitization" projects, and are confronting the complex copyright issues and risks involved in such an endeavor, tools like the Clinic's Public Domain Handbook are incredibly valuable.
I am proud to say that this is one of the projects I worked on while I was a Teaching Fellow at the Clinic, and I am so pleased that our client, the Student Nonviolent Coordinating Committee Legacy Project, was willing to make this tool available to the public. They are an inspiring group of people to work with, and this is just one more contribution they have made to making the world a better place.
Recently, The New York Times reported that the makers of "Cheerios" now forces its customers to give up their legal right to sue the company (i.e., to subject themselves to forced arbitration) when they engage with the company online, for example, by joining its community on Facebook. While this move is disturbing in so many ways (do companies really believe they can get out of serious product liability claims with a ToS no one even has to click assent to?), almost more upsetting is the fact that they tried to do it quietly, without informing their loyal, engaged customers what they were giving up.
General Mills is a big company, and they might be able to get away with a move like this one. But small companies should be very wary about following suit. It may be tempting to try to limit your own legal liability, but customers are increasingly savvy about web terms. And if The New York Times is going around reading ToS, you can bet other reporters are out there doing the same. So even if your users don't necessarily read the terms on your site, if you have truly egregious terms the media just might out you.
So be good to your users. Don't take away their legal rights. And if you feel you must, at least tell them about it.