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drummyfish@diasp.org
Miloslav Číž

Fair Use and "Permissions" are NOT OK in Free Culture

Free (as in freedom) culture has seen a relative success and popularity on the Internet, which is a great thing, but as with anything, popularity brings along distortions, intentional or not. One of such distortions has struck the very essence of free culture. Let me please address the situation in the following paragraphs.

What is free culture? One possible way to answer is by saying it's the opposite of so called permission culture. Permission culture is the "default", all rights reserved treatment of art and information, the state of world in which you always need the author's permission to do anything with his or her work. Free culture advocates see this as a problem and try to establish a culture in which, under certain rules, use of art and information is allowed without the need to ask the author for permission. Under current laws, this is achieved by using free licenses that universally grant the basic rights over a work to everyone.

Yet, I have encountered a few "big" projects that advertise themselves as "free" and still practice the permission culture. One of them is SuperTuxKart, a greatly popular "open-source" game, which includes not one, but two proprietary mascots (Beastie and Hexley) "with the authors' permissions", while outside of this project these mascots are not released under a free license. The same situation is seen in the game called Neverball that uses GitHub's mascot Octocat, again with GitHub's permission. And there are many more.

But you may ask: the author game these projects a permission, so where is the problem? Indeed, law isn't being violated! But free culture is.

The point here is not in whether the law is or is not followed here, but whether the principles of free cultures are honored. If you think about it, there is nothing illegal about permission culture and proprietary art either. What matters to us are additional rules outside law, the rules we believe are important for freedom. And these rules require that a free work has to grant the basic freedoms to everyone, not just a specific project.

Just to be completely clear, this isn't me just voicing my opinion or personal interpretation of free culture here, it is me stating facts based on how free culture has been defined, especially if we take a look at the definitions of free software, the parent of free culture. Every major definition of free culture and/or free software, be it GNU, Debian, Creative Commons or even that of the business-oriented OSI, makes it very clear the four basic freedoms (to use, study, modify and share) have to be granted to everyone, without discrimination, and it is in fact an inherent part of the essence of free culture without which the idea no longer makes sense.

On a similar note, the same issues is seen with many "free" project using third party art and information under fair use. Wikipedia is guilty of this. This is also an unacceptable practice under free culture. Why? Fair use allows lawful use of proprietary assets without permission, but only in certain contexts and in very limited ways. Free culture by definition allows us to take any project and change its context completely at any time. If project A advertises itself as free, it needs to let everyone safely use it in any context, and it simply cannot guarantee this if it includes a fair use asset that limits what one can or cannot do with it. Even if project A itself isn't breaking the law and conditions for fair use apply for it, it can't promise you safety from intellectual property violations if you take it and put it e.g. in a commercial context. And in order to call itself free, it has to make such promise with its free license.

What we are seeing here is a typical "mainstreamization" of a concept which inevitably tries to relax the rules. A competitive environment puts a pressure on free projects to grow beyond its ethical ground, in a chase for more popularity. However, we need to remember why we have chosen to always remain on the ground of freedom, the ground outside permission culture, a ground that's not in the mainstream. You can't sit on two chairs at once, sometimes you need to choose between popularity and freedom.

So please, let's not call free what is not free. I am certain a lot of misuses of the word come from lack of knowledge, it is okay to make mistakes. On the other hand, many try to prey on free culture and purposefully use the term for marketing. Lies are being spread on purpose and conscious efforts are being made to redefine free culture so that it can better serve business on the detriment of people.

Free culture is one of very few truly good things that have emerged in recent history, let's not let ourselves be robbed of it. If it isn't free, don't call it free.

#freeculture #freesoftware #freedom #supertuxkart #neverball #fairuse

eff@social.gibberfish.org
EFF (unofficial)

Article 17 Copyright Directive: The Court of Justice’s Advocate General Rejects Fundamental Rights Challenge But Defends Users Against Overblocking

#creativityinnovation #fairuse #article13 #contentblocking #corporatespeechcontrols #governmentsocialmediablocking #international #europeanunion #freespeech #eupolicy #socialnetworks #electronicfrontierfoundation #eff #digitalrights #digitalprivacy
posted by pod_feeder_v2

Article 17 Copyright Directive: The Court of Justice’s Advocate General Rejects Fundamental Rights Challenge But Defends Users Against Overblocking

The Advocate General (AG) of the EU Court of Justice today missed an opportunity to fully protect internet users from censorship by automated filtering, finding that the disastrous Article 17 of the EU Copyright Directive doesn’t run afoul of...

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dredmorbius@joindiaspora.com
Doc Morbius (moved to Glasswings)

The RIAA's fraudulent attack on youtube-dl is not a DMCA §512 infringement/safe-harbour, and the reality is weird

Many people seem to think that the RIAA's late-on-a-Friday copyright claim by against Web multimedia-content Swiss army knife youtube-dl falls under the DMCA's online content provider safe-harbour §512 provisions against infringing works.[1] It does not.

Under U.S. copyright law, "safe-harbour" provisions immunise service providers from copyright infringement claims, if the provider "takes down" the named content when a claim is received, under 17 USC 512 (c)(1)(C). The safe-harbour protections apply only to hosting of infringing works, and neither youtube-dl nor its test suites infringe on any RIAA or member copyrights as averred in RIAA's notice. Further, a claim must identify the specific works infringed in the work, (§512 (c)(3)(A)(iii)) which the RIAA's claim does not.

See the statute at Cornell University's U.S. Code repository, referenced further here:
https://www.law.cornell.edu/uscode/text/17/512

The RIAA's letter does not claim infringement within the text of youtube-dl source or test suites, though it tries hard to appear so, but rather possible incidental copying, of an overwhelmingly non-infringing nature, and anti-circumvention of a "copyright protection mechanism", under §1201. That last is also part of the DMCA, but falls outside the safe-harbour takedown provisions.

At best, youtube-dl's test suite may be infringing works when run, in which case infringement would accrue to the operator, presumably a tester or Github's CI/CD process. Even that argument is specious: Given output is discarded, no permanent copy is retained, and the action is for research and development, and numerous Fair Use affirmative defence claims exist under §107, notably (1) and (4), test suite execution falls outside exclusive rights. Any one fair-use test is sufficient, or none at all. Test suite execution could be argued non-infringing under numerous theories, including reverse engineering, research, interoperability, all under §1201, or under general limitations on exclusive rights in §112 (ephemeral recordings), §117 (computer programmes), or elsewhere.

Further, under §512 (f) the RIAA's deceptive claim is liable for sanctions:

Any person who knowingly materially misrepresents under this section— (1) that material or activity is infringing ... shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

The fun begins

This is where ... things get interesting....

  • The "copyright protection scheme" in question, if it even is one, was written by and is provided by Google/Youtube, not the RIAA.

  • It is not even clear to me the RIAA has standing to sue under §1203: "Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation." RIAA are not injured due to utilisation of a non-member's mechanism.

  • The claim does not pass the 17 USC 1201 (a)(2)(B) test: that the technology "has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title".

  • Yes, Github (or its owner, Microsoft Corp.) may have liability under 17 USC 1201 (a)(2), "offer to the public, provide, or otherwise traffic" the code, subject to the same test above. However there is no safe-harbour provision for such violations.

  • Microsoft is listed on the RIAA's members page. Neither Google LLC, its Youtube subsidiary, nor parent Alphabet Inc. are. The RIAA are threatening a member for a §1201 violation against a nonmember. That's ... weird. https://www.riaa.com/about-riaa/riaa-members/

  • A further defence is the §1201(f)(2) exception: "a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure ... or for the purpose of enabling interoperability of an independently created computer program with other programs".

  • Youtube-dl is executing code provided by Google/YouTube, for Wold Wide Web user agents, as a World Wide Web user agent, and meant to be accessed and run by user agents in order to access YouTube content. That is, youtube-dl's operation is entirely within YouTube's technical design and intent.

  • Any potential copyright infringement which might occur through use of youtube-dl is at the volition of users, not the software's authors, actions would properly be directed at such users for individual acts of infringement, and much of this is subject to the same defences listed above, and others.

What then shall we do?

The remaining question is whether or not this claim should be contested. I argue that it should, on numerous grounds;

  1. Though the claim is made under US law, similar anti-circumvention provisions exist in international law, which is highly standardised in large part thanks to the RIAA, MPAA (video), SIIA (software), WIPO, and other copyright monopoly cartels' special-interest deep-pockets lobbying. Offshore legal safe havens are limited and vulnerable. Defence within DMCA /anti-circ / WIPO / Berne regions is unfortunately necessary. Simply hosting the repository outside US jurisdiction is not sufficient, though a valid immediate response.

  2. Such claims are specious at best, carry heavy chilling efects, may be entirely fraudulent, and should carry considerable risk. A countersuit agaist RIAA may help make this cartel, or others, think twice about repeating such attempts, as well as establish precedent agaist future such attemps.

  3. The future of software, to which Microsoft claims to have harnessed its own wagon, is open, collaborative, Free Software. As such, the software and information services industry's interests diverge from those of regressive copyright maximalists.

TL;DR:

This is not a 17 USC 512 infringement/safe-harbour, RIAA's standing is highly questionable, it is threatening a member for an averred nonmember's §1201 injury, any actual works duplication is not performed by youtube-dl's developers directly, nor is the work itself or its test suite an infringement of RIAA / members copyrights, and numerous defences exist for routine use or incidental transmission or copies made by developers, hosting services,or others. Further, youtube-dl, digital and information liberties groups, Microsoft, and Google/Youtube should fight the RIAA's claim.

Notes:

  1. A very common misperception, see e.g., https://news.ycombinator.com/item?id=24884233 https://news.ycombinator.com/item?id=24873090 https://news.ycombinator.com/item?id=24875888 https://tildes.net/~tech/suf/youtube_dls_github_repository_has_become_inaccessible_due_to_a_dmca_takedown_from_riaa#comment-5rnr https://old.reddit.com/r/linux/comments/jgubfx/youtubedl_github_repo_taken_down_due_to_dmca/g9yiawu/ https://old.reddit.com/r/DataHoarder/comments/jgtzum/youtubedl_repo_had_been_dmcad/g9tnmo2/ https://old.reddit.com/r/linux/comments/jgubfx/youtubedl_github_repo_taken_down_due_to_dmca/g9slirg/ https://merveilles.town/@zens/105086871599354436

#youtubedl #riaa #dmca #copyright #github #microsoft #youtube #google #FairUse #monopoly #cartel #AlphabetInc

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