[my assumptions here are based on the news article, not the claim itself, which has yet to be published]
The problem here is that the class action lawsuit stands on problematic pillars. The first is the request for statutory damages for copyright infringement, and the second is the request to avail all data through a class action suit.
The first pillar, for statutory damages, is quite problematic: Article 20 to the Israeli Class Action Suit Act states that no statutory damages shall be granted in a class action lawsuit. This was upheld by several court rulings (CA 1379-09 Peled v. All You Need, for example), and is quite consistent with the principle that class action lawsuits come to cure a specific action which will be unactionable otherwise. If each software developer is entitled to statutory damages, it would be quite efficient for him to sue. So, my prima-facia assumption is that this part of the claim will be quashed in the preliminary stage.
In order to prove that Waze still uses GPL licensed code, which require the release of source code to the public, the plaintiff will have to first review the source code and find the appropriate equivalent in the GPL branch of the code. However, in order to get access to the code, he’ll have to first prove that there’s a reason for his suspicion.
Currently, I don’t think that there’s a shred of evidence showing this, so most likely that this prong will also be rejected. Israeli courts have yet to allow full source code reviews in the discovery stage with no hard evidence. The closest case was in a copyright infringement case where the look and feel of the software were similar (RCA 1068/12 Dan-El v. Snapir).
Therefore, I believe that this will be one hard case to snap.
It seems that those who were astonished, abhorred, enraged or outraged from finding out that the National Security Agency (NSA) tracked millions of united states citizens and did so with the cooperation of numerous internet service providers, telecommunication companies and web-based hosting services had notevenbotheredtoread the news in the last decade and to see reports on unauthorized searches in computers and about the way that the law authorities act. We, as Israelies, can only be jealous of the public outrage from such authoritarian conduct, because, well, in Israel, the situation is quite worse. The Israeli authorities took George Orwell’s book, Ninteen Eighty Four, and made it in to a master plan.
To us, as Israelies, the NSA’s authorities sound like a poor joke. Because, the NSA can only pray to get the legal and popular acceptance that the Israeli Police and other investigative authorities obtained. During the last decade, Israel enacted many surveillance laws that allowed unprecedented use of personal information for investigatory uses, and not just for the prevention of terror.
In 2007, the Israeli parliament enacted the Criminal Procedure (Enforcement Authorities – Metadata) Act. The act itself granted the police, as well as other investigative agencies, abhorrent authority to obtain widespread information about nationals, and even without judicial review. The authorities could approach the telecommunication providers (ISPs, mobile operators and phone operators), pay a few Shekels, and obtain answers to queries, as long as such queries relate to specific crimes or investigations. For example, if a murder occurred in a specific street, the police could have approached the cellular providers and request the subscribers who were in the street at a specific time.
In a similar manner, the police could approach an Internet service provider and request a list of subscribers who browsed a certain page, or inquire who was the subscriber who leaked anonymous information to a military correspondent about inadherence to the supreme court’s ruling in the military’s conduct.
Here, in Zion, we can only be jealous about the US Citizens who are abhorred; Israel addressed Google for subscriber information (not by the Metadata act, as it does not apply to Google), about 350 times since 2009. Google responded to most of these requests; meaning that there are 350 people in Israel that the government obtained their correspondence, and that we cannot be certain that they were informed about such intrusion. But Google is an exemption, it provides us with reports.
Israeli nationals are always subjected to espionage and surveillance: employers read your email, the state sets up traffic cameras, parking cameras, security cameras and protection cameras. And all this time we ask: do we need protection from criminals or the state?
0. Israel is to attempt, again, to pass a bill that authorizes police officers to issue warrants to Internet service providers to block or restrict access to specific websites involved either in gambling, child pornography or copyright infringement. The bill itself proposes that such administrative procedures shall be clandestine and that court decisions shall be made ex-parte, where some of the court’s ruling will not be even disclosed to the owner of the website, and the court may hear and use inadmissible evidence.
In my opinion, one of the saddest things in a democracy is that powers with authority can change the rules after the game commenced. This is story with blocking of gambling sites, an experiment which began around 2010.
You can read a bit more about the bill at Oded Yaron’s article at Haaretz.com (behind a paywall). In general, the bill’s purpose is to circumvent the relevant court ruling and allow the police to block websites. In the district court ruling, the police’s authority to shut down gambling houses cannot apply to websites. However, the bill’s current wishes seem to be broader:
Had a certified police officer reasonable grounds for suspecting that the website is used to commit an offense specified in the Second Schedule [gambling, child pornography or copyright infringement - jk], and that there are reasonable grounds for concern that the website will continue to be used for committing a crime unless access is restricted, he may issue a warrant for Internet Service Providers to limit the access to that Web site; a warrant under this section may be issued even if the website also contains activity which is considered legal [or legitimate - jk] provided that the illegitimate activity is the main purpose of the website.
Now, as befits any modern legislation, justice it made but us not seen. Article 3 of the bill discusses execution of additional warrants, where everything shall be made ex-parte:
“material relating to the request to extend the validity of an administrative restriction or information based on which such request and any other material provided subject of the application process will be made to the judge only; material will be marked and returned to the police officer or authorized claimant (in this section the applicant) after examining “
But it’s not just that material will be ex-parte; in some cases, the ruling itself may be withheld from the appellant. “The court shall notify the owner or occupier and the police officer on its decisionunder this section, and it may determine that the decision, or parts of it, shall be confidential“.
2. This means Israeli that citizens may find themselves in a situation where they are subject to a warrant which is confidential. In such case, They will not be able to challenge such an order, because the grounds for the decision will unlisted . Sounds interesting? Well, I remind you that when we discussed that Communication Metadata Law, which allows police to receive GPS data on phone and Internet subscribers and records of their phone calls, everything was made in confidential decisions (with no further judicial review on them). Therefore, do not know how the law is implemented, how these requests really served illegally, and how judicial review works.
But of course there’s the issue of the slippery slope. The original act, which is to be amended by the bill, gave a judge the authority to issue a warrant under careful review; however, the bill conveys this authority to a police officers.
What about additional uses? Well, in order to pass the bill, the police began with abhorrent offenses considered: child pornography and gambling. Clearly, no one will oppose the authority to block such websites if he’s not a pedophile or a gambler. Well, not really. That’s why the phrase “Second Schedule” is used to described to offenses that are subject to this authority, in fact the bill asserts a short list of offenses, where the minister of justice can always add additional offenses. Once the bill is passed, no one can be certain that no additional offenses will enter there.
Israel is known for times where its legal system falls victim to political constraints from left to right, and just in not the higher courts, but the magistrate courts as well. Sometimes, indictments are colored more politically than usual, and are attached with circumstances that cannot allow acquittal. The stories of Jonathan Pollack, who was convicted for riding his bicycle slowly in a demonstration against the Cast Lead Operation and was sentenced for three months in prison, and of Rahamim Nasimi who blocked a road during anti-disengagement protests and received the same penalty show that there’s a problem in the method. The problem is that not once demonstrations are meant to disrupt the public order, offend, hurt and show the government that there is criticism and it’s not nice: but these have to be the rules of the game. Protesters are allowed to be rude, disgusting and violate the public order : The police, on the other hand, cannot be brutal and it has to respect the political expression, since if it will not do so, we will live in the “Ok State”.
And that’s the case of Pussy Riot; a Russian feminist band that decided sometime in February to organize and demonstrate in a spontaneous way to protest against Putin. During the last weekend, three members were sentenced to two years in prison after being charged with harming the public order with religious circumstances; of course, that there was not relation to the content of the expression, but to the deed itself: the members of Pussy Riot organized in a public place, offended the public, and tried to protest against the current situation. If they had protested where they are allowed to, in their homes, then no one will have heard about Pussy Riot.
It is quite doubtful that this could be perceived as a just trial, even though the Russian public supports it; but that is the case: when the political hooligans are indicted, the content of the speech is not mentioned, and therefore not discussed in court. They say “he was a hooligan, and we don’t care if it’s left or right, if it was a toothpaste advertisement or a protest against a mayor. What offends us is the breaking of the public order”. In this case, you cannot put up a defense that says “look at the content and not the form”, because the content is indisputable. So, the architecture of the trial prevents justice.
In this is how Israel is so close to Putin’s dictatorship: even here there is hard work to limit the protest; and of course it’s not political at all: a simple policy of requiring a license for every activity of public expression is perceived by the court as a way to preserve public order (AA 6095-07-12 Hatzav v. Tel-Aviv). It’s not just a saying: the Tel-Aviv municipality issued an administrative order stating that “festivities and any other activity to express an idea, opinion, value, demonstration, meeting, ceremony, solidarity, fund raising, belief or world view – which is not made in cooperation with the municipality” has to obtain its consent. Meaning that if I sat down with a friend in Rotschild boulevard to discuss my opinion about the country’s financial status or the street’s garbage, I have to approach the municipality’s CEO, fill out the proper forms and obtain a permit.
These procedures are not only unlawful, but they make Putin ovulate from joy. the resemblance, the inspiration, maybe he should receive royalties for it.
And in the meantime? Israel does not have a local Pussy Riot. And maybe its for the better; their music is not so soothing. But until we have one, we all have to admire King Bibi.
[This Wednesday I shall lecture at the LiSS working group conference, here is a draft of my lecture] From 2003, and until today, the Israeli Government has been working diligently in order to legislate the biometric database act and the orders and ordinances according to it. However, This biometric database is not the only biometric database in Israel and is not the only database where government authorities have access to. In my brief lecture, I shall present a different approach, asking whether this database act was actually required and what are the reasons for choosing a legislative act when doing so. When doing so, I’ll have to ask whether the act of legislation was needed because the social contract was broken, or because it was a megalomaniac act made out in will to block any different approach to databases.
1. Database Laws, Privacy.
Let’s first understand how government databases operate. The Israeli Privacy Protection Act does not differentiate public sector databases from private sector ones; moreover, article 23D provides any person the right to know about such database and article 23C provides government bodies the right to request and transfer data from other databases when the action is required by law or by the body’s function. Meaning, if it was it’s desire, the Government could have set up a registered database and operated the biometric database out of such act; but in such case, it couldn’t have mandated the people to provide their biometric information.
So what could it do? It could have amended the Census Act. The Israeli Census Act is the act regulating the management of the Israeli Census (which, as we already know, was leaked to the Internet); article 2 writes down the fields in the database that are required to be listed. In such case, amending and mandating a person’s biometric data under it could have solved the biometric database problem in a 1-line amendment, without requiring massive legislation.
However, The Israeli legislator decided to pass a 30 page long act (PDF), which describes in full the security and use in detail, and allow public debate over it. In order to understand why, let’s understand how other government databases work.
2. Government Databases and legislation.
First let’s see what are the databases which were legislated and which weren’t; Meir Sheetrit, the biometric database’s entrepreneur, said that “Israel has enough [other] biometric databases“. However, if we inspect his claims, we find out a different perspective; the one who says who and when is required to provide his information willfully to the database.
We can see that while some databases were legislated because of their sensitive nature (money laundering, f.e), there is no actual difference between the sensitivity; There is no actual difference between money laundering information or the biometrics of a migrant worker. We can also say that legislation did not come because of the voluntary nature of the database; a person cannot choose to be unemployed or not to travel by car or bus. None of the non-legislated databases are actually voluntary; they just address specific needs and puts the person “agreeing” to provide the information in an inferior place: he is either unemployed, or he wishes to travel to Israeli to work, he may want to drive in Israel or take a bus. These are all daily functions that a person cannot go without.
4. Why Legislation.
Now, let’s go to the theoretical assumption that legislating the biometric database could have been made without any real or substantial legislation; It could have actually just establish a national database by issuing an order of the Passport Act, seeing that most Israelies have a passport, and hold the information in a way that is “required” to issue a passport; he could have went in the same way the Transportation Office went, and required just the issuance of fingerprints. However, the choice to legislate the database was taken. And why?
The reason is the Israeli Privacy Protection Act, but not the article requiring willful consent, nor the article mandating informing the data subject on its rights, but because of article 23C. Let’s inspect the text:
“Notwithstanding article 23b, providing the information is permitted, if not prohibited by any legislation or professional ethics – (1) between public bodies, if one of the following exists (a) providing the information is in the authority or role of the body who provides the data and it is required to exercise a law or a cause by the authority of the data provider or its recipient; (b) providing the database is to a public body who is allowed to demand such information according to law from any other source; (2) from a public body to a government office or another state establishment, or between offices or bodies as such, if the providing of information is required to exercise any legislation or for a purpose in the authority or roles of the data provider or its recipient …”
Well, we do need to read this carefully: There could have been a state-wide database without legislation; however, in such case the Police could not have been granted access to the information. And why? because neither article 23b(a)(i) nor article 23b(a)(ii) allow it: The first alternative requires specific authorization under law to disclose the information and the second requires that the police would have been authorized to request the information at source. However, the police are not entitled to coerce a person to give them his biometric information, and the ministry of interior [was] not authorized to specifically assist the police.
Therefore, unlike other databases, the mobility of the information and the detachment between the cause of why it was collected and its use brought the actual need for legislation.
5. Ruling out other factors.
Now, we can inquire about the question of whether this was actually the reason; whether there was a secret hand that required it. The only reason to explain why a 30-page long bill was passed was explained when alternatives were presented to the government. The rejection of the Adi Shamir proposal, for a non-identifiable database, and the choice to store both a person’s facial photo and fingerprint (where such information is not required to maintain a clean database, see Yoram Oren’s statement “if the purpose is to reduce a list, then yes“). Meaning, the legislator was presented with at least two alternatives that allow a secure database that does not allow double-inclusion and does not retain so much sensitive data, but rejected it.
Such rejection may be discussed later in courts when inquiring about the constitutionality of the act, but that’ out of the point. The choice of both legislating and deciding on this architecture was made solely in order to allow surveillance.
6. Summary and Conclusions.
We know that the legislator had other options to legislate a database (or not to legislate it); and that it could have allowed it to be used quicker, without any pilot and even with the coercion against the persons, but in such case, the police and other security authorities could not have obtained access to the database. Therefore, the sole purpose of addressing legislation is in order to allow such access, and unless we can rule this out, this is the true purpose of the database.
The ruling in C 48511-07 Dr. Dov Klein v. Proportzia ltd will most probably not be in any future cyberlaw schoolbook unless Google, one of the defendants (or actually three of them), will decide do appeal even though such a small amount (around 12,000 US$) was ruled against it and Proportzia. In brief, before we discuss the problems of this ruling, let’s tell the story. Dr. Dov Klein is a plastic surgeon. One day he found out that Proportzia, a clinic providing cosmetic surgery and other beauty treatments, decided to purchase AdWords under his name. Klein did not like the use of his name and decided to sue Proportzia as well as Google, the service provider. The Magistrate Court of Tel Aviv-Jaffa ruled that Proportzia and Google are liable for invasion of privacy and must compensate Dr. Klein.
Google AdWords lawsuits were a big issue in the past (where the most famous was Government Employees Insurance Co. v. Google, Inc., No. 1:04cv507, see more at Eric Goldman’s blog). In Israel, however, there was one material ruling, OP 506/06 Matim Li v. Crazy Line, where the Israeli District Court of Tel-Aviv ruled that as long as the ad itself is not misleading, there is no problem with purchasing ads using someone’s tradename. But here the court needs to explain why he deviated from this decision, so he ruled that “These are keywords which contain a personal name, and not a trademark, and therefore you cannot say that in regards to this name the internet is an advertising space similar to others. So it would be adequate to rule that in regards that without the personal name’s holder’s permission, the name shall not be used for advertising”
The court goes with the infamous publicity rights and determines that when the use use is of someone’s personal name, and not a trade name, then the use has to be with permission of its “owners“. However, here already stands a first problem in regards to publicity rights. Dr. Klein is a celebrity, and as such he has not right for privacy (in regards to publicity rights). Israeli courts ruled that when a person uses his name for trade, he cannot later state that he does not want others to rely on such business name. In a recent case, the court ruled that “the right for privacy is a right that protects the emotional-personal interest of a person, his autonomy and his private matters, but not his financial interests” (C 534-08 Hava Koren v. Shai Cohen). Meaning, the rationale behind publicity rights apply where a person does not wish to be known publicly and is coerced to do so, not where he is already known.
The second problem here is where is the border between a person’s name and a trade name. Is Ford protected under this ruling, being the surname of Henry Ford? This is the incoherence that later calls of over-litigation and pays the lawyer’s retainer is bad lawsuits. If the court had a reasonable rationale, it had to provide it in a detailed manner, even if it means writing 50 pages instead of 14.
Now, after having said that, the real problem arises. As the court did not provide reasoning for its ruling, it did not explain where Google’s active involvement that provides incurring liability on it. That’s why Google did not know, and was not expected to know, about the existence of a person named Dr. Klein and that he does not want others to use his name. The court here goes against any other service provider liability case in Israe (C 567-08-09 ALIS v. Rotter, C 1559/05 Hemda Gilad v. Netvision, C 64045/04 Al Hashulchan v. Ort).
The fact that the court did not provide reasoning to its ruling is a problem. It does not let us understand why it decided that Google is liable and does not let us understand the issue. We have to wait and see whether Google appeals this.
A recent Israel court ruling stated that linking to copyright infringing content does not constitute a direct copyright infringement (CA 567-08-09 ALIS – Association for the protection of cinematic works v. Rotter.net Ltd) was quite an interesting one. Alis, the Israeli equivalent of the MPAA sought a popular forum website, Rotter.net, in regards to user generated content in two of its popular forums: Downloads and Movies. Alis’ claim was that by providing links to infringing content, Rotter is liable for direct infringement.
The court recognized that notice and takedown is the correct way to handle user generated content and ruled that Rotter is not liable for any user generated content as long as it removes the infringing content promptly. By ruling this way, the court created the so requested connection between the recent Supreme Court ruling in CA 5977/07 Hebrew University v. Schoken (which dealt with the university’s liability for coursebooks distributed by students creating infringing content) and the virtual world (and in regards to notice and takedown under Israeli law, see RCA 1700/10 Avi Roy Dubitzky v. Liav Shapira, C 1559-/05 Hemda Gilad v. Netvision and C 64054/04 Al Hashulchan v. Ort).
However, the main issue with notice and takedown was the amount of actual knowledge the court required: The court determined that it is not enough that Rotter is reported that a specific forum has infringing content, but they have to have actual knowledge of any specific infringement. However, the court opened a latch for “bad forums”, meaning that a place where the service provider knew about a material amount of infringements it shall be liable to the forum’s activity. In the court’s words “the presumption is that the website’s owner is aware that he is assisting in the existence of direct infringements, and that such assistance is actual and material contribution to them. Therefore, the burden is on that website owner where a suspected forum exists to prove that the existence of the forum serves a legitimate purpose or that he was unaware of the infringing activity (and if so, he shall not be liable until he was notified that this is a “bad forum”“. Therefore, the court actually narrowed the service provider exemption from liability.
In the court’s opinion, “as a rule of thumb, we can determine that a closed forum, where in a specific time there are more than 10 links to infringing sites, and that the messages including links to infringing sites constitute more than a quarter of the substantial content of the forum (meaning, messages that are not information requests or responses to other messages), should be suspected as a “bad forum”“. Meaning, the court determines that a forum that has more than 10 infringing links, and when these links are more than a quarter of the content, even if the website owner had no actual knowledge, he may be liable. This ruling may be dangerous, and having being a district court one, we should put our fingers on the pulse to see how it goes in the future.
From where did the court conclude the numbers? why didn’t he include the number of absolute postings in the website as a criteria (in contrast of forum messages), why didn’t it inquire whether opening a forum requires the owner’s consent? all these questions were irrelevant to the ruling and were not included in the court’s opinion.
However, this part of the ruling is not the material part, but only the part easy to understand. The important decision was in the question whether directly linking to an infringing content on another site constitutes as direct infringement. Here is the time and place to remember how copyright works: actually, there are specific actions where the copyright holder is the only person entitled to perform, and the rest of the actions are allowed. These are specified in clause 11 to the Copyright Act. One of these rights, in Israel, is making a work available to the public.
Alice tried to claim that linking is making a work available to the public, defined as “performing an action in a work so that people from the public may have access from a place and time of their choice”. However, the court rejected this claim and said: “creating a link which transfers the user directly to the infringing site (either to the homepage or an internal page) is not “making a work available” … First, creating the link is not “performing an action in a work”; second, the link, by itself eases people from the public to locate the infringing work, but it does not create the access. In other words, the work has already been made available by the infringing site and therefore linking to that site cannot be deemed as “making a work available”“.
The court determined that there is no actual direct infringement (but may allow contributory, secondary or vicarious ones) by linking, this is a blessed interpretation of the law, which was not always acknowledged by the court (it was, however, ruled so in 11-cv-20427 Disney v Hotfile).
The meaning of this ruling may be relevant, however, to other torts. For example, could a person being slandered in a website sue all people directly linking to it? It seems that in such case, this ruling goes in favor of the actual logic.
Yesterday, David Drummond, Google’s chief legal counsel, ranted in the official Google blog about this conduct (covered also by TechCruch). He said that ” A smartphone might involve as many as 250,000 (largely questionable) patent claims, and our competitors want to impose a “tax” for these dubious patents that makes Android devices more expensive for consumers“. The thing is that Drummond is also relating to the problem, and not the solution.
Recently, Android had became less and less of Open Source and more proprietary, where Google refused to release Android’s source code. Also, the choice of non-GPL license caused it to be less free. Of course, this lead Google further from the Solution.
The solution to Patent Trolling in the Android market segment is inherent with free software: detach the software distribution from hardware distribution. When people can purchase the devices and then install their OS at home, when they download it for free from the Internet, then these Patent Trolls will have to go against the actual distributor: Google.
0. Terms and Conditions (and Privacy Policies) are a bitch. I know, because I write them for a living. Yes, it’s me who made you agree to provide that website with an “irrevocable, unlimited, commercial right to access your personal information stored in the service” just so they could fight the spam they tackle on a day-by-day basis. I’m also the guy that these websites call when some random schmuck send them a cease-and-desist letter claiming they hold the copyright on the word “party” or something like that.
Lawyers face a terrible problem, most users don’t read the terms and conditions; this causes them to be unenforceable in some cases (DeFontes v. Dell, Inc., No. 2004-137, 2009, more here) and lawyers tend to create presumptions of acceptance in different terms, which are always uncertain because they are never tested in court. Some lawyers tend to add the “I Agree” button only at the end of the document, some require email confirmation and some just add an “I Agree” checkbox.
In comes CommonTerms. CommonTerms tries to simplify the reading of hard to read legal documents by adding nice icons about how the service providers use your data, if they are allowed to revise the terms for any reason or other information. In order to do so, Common Terms analyzes existing agreements and attempts to draft a database of practices. While their idea is nice, it’s yet to be perfect for the end-user because he needs to know such icons exist and actually read the terms for it.
After we get the marking down, we still have some problems, but all are solvable: Self-Enforcement and Information, as well as comparing sites in terms of their Terms and Conditions. The other factor may be creating common grounds for tagging and creating child-friendly filters or other uses that users may do to understand what happens when they post their content in websites: is it sold, reused, mixed, shares or just removed after 36 hours.
The thing is, that as a lawyer, I cannot code and I cannot enforce these things on people: not on other lawyers and not on my clients (or other lawyers’ clients). So, in order to make this happen, a demand has to come from the public, and that’s you.
In about two weeks time, I’ll attend the Wikimania2011 Conference and discuss Cultural Fair Use, Political Narrative and Copyright; while this might sound as one big mashup, because there is no apparent connection between copyright and political narrative. The story of fair use, however, points us to why copyright, more than any other thing, has to do with Politics. The text of this lecture is somewhat derived from my research with Dr. Nimrod Kozlovski for Consumers International about Fair Use in Israel.
But first, a short story. One of my favorite TV shows is South Park. I’ve been watching them from 1997, and have been a fan of the authors and their opinions; when Trey Parker and Matt Stone described their approach towards copyright in their interview for Reason Magazine back in 2006 i was quite happy to find out their approach for copyright was that of a true artist, a wish to reach a wider audience. In a same manner, back in 2008 when they launched South Park Studios, a website to allow watching all their episodes through video streaming as well as remixing and sharing their content, I understood how much they were artists and how they were not just in it for the money.
In 2008, South Park paid tribute to the internet nation with an episode criticizing the Writer’s Guild of America’s Strike while paying tribute to some of the latest internet meme sensations such as the sneezing panda and the Star Wars Kid. One of the subjects of criticism was Samwell, whose video “What What (in the butt)” depicted an African American male pondering whether the viewers of the video wish to “do it in the butt” with him. The video was displayed in the popular YouTube site free of charge and received millions of views.
In the “Canada on Strike” episode, the four prepubescent characters in South Park wish to earn a quick buch from the internet and decide to film a viral video. The position Butters, one of the characters, in the same way as Samwell is in the video and make the unconceivable, take the already grotesque video and make it even more grotesque. This is basically why I love South Park so much: the interaction between extreme free speech and the ability to mock the already mocked to a grain gives them the ability to go on for so many shows. This is the video that Butters produced:
Samwell decided that South Park’s use of his “Work” constituted as copyright infringement and decided to sue Viacom for copyright infringement. Viacom decided to be the better person and instead of settling the case out of court (which would help it, as a copyright owner to fight others who make similar uses of its content) decided to try and use the affirmative Fair Use defense. This week, a Wisconsin federal judge dismissed the case, arguing that South Park’s use of the work was fair (read the full opinion of 10-CV-1013 Brownmark Films LLC, v. Comedy Partners). The court weighed in favor of what I try to call “Cultural Fair Use” which became somewhat popular recently, but is not actually in the general Fair Use exemptions.
For all you non-lawyers, fair use is a defense (codified in 17 USC 107 for those who use copyrighted works for causes such as “criticism, comment, news reporting, teaching, scholarship, or research”. However, South Park’s use, in spite of the wish to be considered criticism, is not really criticism, but mockery or homage. South Park used Samwell’s work in order to criticize the viral videos altogether, not the work itself. In a similar case, where a famous Israeli Comic Book (or should I actually say “Graphic Novel”) cartoonist depicted Donald Duck in order to mock the Isreali Society, the Israeli Supreme Court ruled that his use was not fair as the criticism was not on the work itself (RCA 2687/92 Geva v. Disney). Only recently, the lower courts acknowledged that other, cultural aspects of fair use in order to stretch society’s public domain and ability add some works of authorship to the public domain without the formal requirements of copyright terms, solely because such works have become works of the public due to popularity and demand.
The recent cultural fair use is based on folklore more than anything else. The basic elements are that once a work has exhausted its commercial value and became a part of popular culture, it may allow others to create additional social value by reusing the work. Such uses may be mashups, remixes or other uses which are not highly criticizing or transformative, but are without any impact on the actual market value.
[Here comes that part where if you read this prior to hearing my lecture you thanked me, because the crowd will be rickrolled]
But putting Rick Astley‘s career aside, let’s discuss Government Works for a bit. The US, as well as other states, has a “Government Works” clause that determines that any work of authorship made by the state itself is not subject to copyright. Unlike the US, Israel does not have such clause. Therefore, a material part of Israel’s history is subject to copyright; meaning that the national photo archives and other government works such as reports of the Central Bureau of Statistics are subject to copyright. In such case, when Israeli nationals (and other nationals, actually) wish to use government works, they must either license them or find other sources.
This creates a burden, first of all because the Israeli government does not benefit from selling licenses. It is not one of its positions as a government nor is it a material source of profit. The government has set up its Press Office to allow dissemination of information freely from the government outwards and copyright restrictions seems to contradict Israel’s wish to disseminate its message.
During the 2010 term, Parliament Member Meir Sheetritsubmitted a bill introduced by Wikipedia Israel, proposing that non-commercial use of government pictures shall be free of charge, as long as the use is with credit, and does not manipulate or alter the photos in any way. In an interview, Sheetrit stated that one of the reasons for the governmental opposition to the bill was the fear from use of the photos by organisations
which are hostile to Israel or wish to promote the opposing narrative.
The bill was prepared following a study by Creative Commons Israel and Wikimedia, which dealt with Crown Copyrights. The understanding and discussions were whether to apply fair use principles to these uses or to exempt them individually. The tension between personal uses and political uses was balanced by the Israeli ministry of justice, which drafted the bill for MK Sheetrit, and exempted non-commercial use only.
Interestingly enough, the definition of what is commercial and what is not has yet to be discussed. It is interesting to note that both the language of the bill and the language opposing the bill use copyright as censorship or impediments on free speech. The rationale behind the bill, at least as stated by MK Sheetrit, was to allow the dissemination of Israeli Hasbara (propaganda) and use of the Israeli imagery for free by bloggers, Wikipedia and other organisations who wish to use them in order to enrich their works. However, at least as stated by MK Sheetrit, the governmental opposition was based on the fear of use by hostile organisations. Both parties held an opinion that government works are a part of the discourse and that copyright may be used to prohibit others’ speech or to allow them to undertake one’s narrative. These rationales underplay the economical aspects of copyright, and deal with fair use in a different manner, which is the ability to silence political speech.
If, indeed, the only rationale for copyright in Israeli government works is political: to maintain the political narrative, then one material aspect, which is the commercial value of the work, has to be let aside when discussing government works. Let’s, for this cause, inspect the incentives behind copyright and see whether they apply for government works (based on the incentives described by Julie E, Cohen in Copyright as Property in the Post-Industrial Economy: A Research Agenda); the purpose of Copyright was to encourage new and original authorship, however, in Government Works, there is little originality, most Government Works are either documentary (formal photographs or official journals) or are the result of a research; and even if commercial uses were made using these works, then the Government shall continue to create.
Therefore, the incentives for Government Works do not exist in copyright. Now, what’s left is the apparatus of control, and this is actually what’s important in copyright nowadays, more than the economical incentives in Copyright, it seems that Governments, like artists, wish to keep the control of what others shall do with their works, therefore applying their political narrative through copyright.
Israel’s offer for a “Israel Friendly License” shows that we do have a problem: Israel wishes to enforce its political narrative through copyright, by granting a license to use its works solely for those who adhere to its standards. Because the Government does not work for-profit, we can learn, more than from any commercial entity, that fair use is required for criticism, because it is made exactly where people do not want others to use their intellectual property.
Go2Web2.0 : Orli Yakuel about the Israeli StartUp Scene, social media and web 2.0 Law of the Game : Gaming, Laws and other interesting stuff. Blonde 2.0 : Ayelet Noff about everything that’s social, the Israeli Start-Up scene and other things. Rogel’s View : he has a view, I don’t agree. Try to see if you do.
[This Wednesday I shall lecture at the LiSS working group conference, here is a draft of my lecture] From ...
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Militarism in Israel
Well, This is the latest pic i took which shows the militarization of the Israeli society. As you can see, most Israelis would actually see this as 'normal', while I see it as a soldier wearing uniforms in a rock concert.
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