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BoingBoing links to a new "copyright experiment" (Monolith and digital copyright). The software project, called Monolith, takes two digital files and XOR's them (what the author refers to as "munging"), creating a third file. The author calls the two input files "element" and "basis." I think many people might call them "plaintext" and "key." The output file (aka the "monolith" file) would be called the "cryptotext."
The conceit of the concept is that neither the cryptotext nor the key is copyrighted. Thus, it should be legal to distribute both. Otherwise, the author of Monolith claims, everything is copyrighted and nothing can be distributed because there is always a number such that, if XOR'd with another number, will produce a copyrighted work.
This argument is not new and it not terrible interesting. It basically postulates that any encrypted transmission of information is actually not a transmission of information at all.
Posted over on my blog and on Joe Gratz's blog... you can find the testimony of MaryBeth Peters (PDF), Register of Copyrights, in an oversight hearing this morning before the House Judiciary's subcommittee on Courts, the Internet & IP. A slightly different view of the role of copyright in our society than you usually see here...
Ed Felten on Freedom to Tinker hypothesizes a melding of several studies on file-sharing, creating A Grand Unified Theory of Filesharing. Copyfight noted the study here: Felten's Grand Unified Theory of File-Sharing. Felten divides the filesharing world into younger (15-24 years old) Free-riders (who fileshare and don't later purchase music) and older (25+ years old) Samplers (who fileshare to sample, but later purchase music).
However, while Felten's generational distinction is an important one, I'm not sure his theory fully explains what is going on. The main problem I see is that Eric Boorstin's thesis (Music Sales in the Age of File Sharing), which found that internet access correlates with increased music purchases for older people but decreased music purchases by younger people, isn't really about file sharing per se. The disconnect here is that there is no data for the correlation between filesharing and internet access.
Last week I wrote a piece about copyright and headlines (Copyrighting Newspaper Headlines?). Be sure to read the excellent comments of Fred from The Dead Parrot Society. Co-Copyfighter Wendy Seltzer responds to my post here: Copying Newspaper Headlines. Martin Schwimmer has linked to the story via his must-aggregate Trademark Blog (Are Newspaper Headlines Protectable?).
I want to clarify that my analysis had very little to do with bloggers who copy headlines. Frankly, I'm one of the few bloggers who almost always uses the titles of stories and posts when I link to them. Look at the above paragraph, through my archive here, Ernest Miller at Copyfight, or my personal blog The Importance Of .... To the extent that I implied bloggers would not get a different analysis, "perhaps," I was expressing my cynicism about the courts and copyright.
As I note in comments to Wendy's post, bloggers are almost certainly situated differently than the case that was apparently decided in Japan. A fair use analysis of a blogger copying newspaper headlines would almost certainly be found to be a fair use. Without going into all possible details, for example,
1) What is the character of the use?
Goes for the defense. Blogging is almost always an example of a core fair use, such as criticism, comment, news reporting, or teaching, and is frequently part of scholarship and research. For most bloggers, the use is also non-commercial.
2) What is the nature of the work?
Goes for the defense. First, there is a question as to what the work is. Generally, bloggers are commenting on the article of which the headline is a title, not simply the headline itself (though sometimes that happens too - see, Wonkette Gay Marriage: Way to Drive the Point Home). This is unlike the case in Japan in which one could argue that it was the headlines themselves which were being used as the content. In the case of the headline as title, the copyright is virtually nonexistent.
3) How much of the work is used?
Goes for the defense. Again, generally the work will be the article, not the headline. The headline is a very small part of the article. Unlike the case in Japan where the headlines were being used as content and the entire headline (numerous headlines) were being copied.
4) What will be the effect of the use upon the potential market for or value of the copyrighted work?
Goes for the defense. Generally, the market effect of commentary and criticism is not really relevant.
Also, as Wendy points out, if a blogger is posting an RSS feed of headlines on their webpage, the fact of the RSS feed indicates an implied license to use them. I'm working on a longer posting about RSS and copyright, but bloggers shouldn't feel chilled to copy headlines for their blog. On the other hand, I still wouldn't feel confident advising a commercial portal to feel entirely free of liability in stripping headlines from a newspaper that told them to knock it off.
Ernie does a fair use analysis of the copying of headlines (below) -- an issue of more than passing interest to bloggers and blog search tools that routinely copy headlines or extract them from RSS feeds (as the Trademark Blog picks up). Defenses of implied license for some uses aside, I think the headline republishers have a stronger case than Ernie credits, because copyright does not protect titles, short words, and phrases (see Copyright Office Circular 34). Thanks to that exclusion, librarians don't have to rely on fair use to list books in card catalogues or their online equivalents, and others than copyright holders can prepare indexes directing readers where to find more information. If the subject matter is unprotectable or only slightly protected in the first place, or if the use is "transformative" -- indexing rather than publishing articles, the "effect on the market" is less important.