Tweet Archive.org has Some News

I'm not sure where this post should properly go so, Admins, please move this I'm in the wrong neighborhood. This morning I got an email from Archive.org announcing, among other things, the following:

"ALMOST TWO DECADES OF BOOKS LIBERATED!
Don’t feel bad if you never heard about Section 108(h) of the American copyright law — many hadn’t until Elizabeth Townsend Gard, a copyright scholar at Tulane University called attention to this rarely used clause. As a result, the Internet Archive can now digitize and distribute works from 1923 to 1941 that aren’t commercially available. This represents a remarkable opportunity to preserve decades of important works that might otherwise have been lost.

Since Section 108(h) isn’t exactly an enticing name, we’re calling our collection “The Sonny Bono Memorial Collection” after the entertainer and politician who was one of the sponsors of the Sonny Bono Copyright Term Extension Act. We’re taking full advantage of the law as a nonprofit library, and the beat goes on!"

I haven't read Sec 108(h) but I can see why copyright holders, including film studios, would not care to have word spread if it does what Archive.org claims it does. Personally, I have wondered why copyright law does not follow trademark law in that trademarks can be renewed every ten years, but only if the owner can prove that it is currently using the mark in commerce. In other words,you can't lock it away, not use it yourself, and claim that nobody else can use it either. Of course, this is exactly what has happened to books, records, and films. NBC Universal is especially vigilant in getting old Paramount films removed from social media sites although the films in question are not circulated (i.e. in commerce) by them and evidently are not likely to be.

Bob, can you explain in English -- you know, the stuff that most of us communicate in when we're not struggling to stay awake while lawyers talk -- what "commercially available" means in terms of this news?

Bob

I'd prefer Latin but OK,here goes. Generally speaking, when federal law says "Used in commerce" it means interstate commerce - across state lines - and means something currently on sale by the rights holders.
For example, if the ABC studio issues a movie on DVD but later it goes OOP and the studio no longer makes this DVD available, the studio is no longer using the movie in commerce. That suggests according to Archive.org that they can post an old copy on its site w/o violating the copyright law. I don 't know if this is correct but this is my understanding of what Archive.org seems to be saying.

I think the real loophole (that they are naturally trying to close) surrounds the term "publication." Here's the example they provide:

A television program broadcast over network television and available through on-demand streaming services but not sold to the public in physical copies would be considered “unpublished” under current section 108.

I can see where that would open the perfect door for archive.org (bless 'em) to make these 'orphaned' films available.

For the insomniacs in the crowd:
https://www.copyright.gov/policy/section108/discussion-document.pdf

--Peter

I thought that was what you were talking about, Bob, and here's what I found about it a decade or two ago, when I asked my godparents' son (a patents & copyright lawyer) about it: it depends on what the courts work out as a definition for "commercially available." Does it mean you can buy it at the corner store? Does it mean Coming Soon to a Store Near You? How near? Can you rent it from Netflix? Will paying $3000 to the Library of Congress to make a digital copy of that Talmadge movie, which you can view at LoC, but which will belong to Cohen Media count as "commercially available"?

No one knows. The courts haven't ruled. Here's what has happened.

Mark Roth produced a dvd edition of the 1929 Four Feathers a decade or so ago. Soon afterwards, he got a demand letter from the copyright holder, telling him to stop selling. He stopped.

What if he had not? He would, I imagine, have found himself sued some place in California, so this nice fellow from New Jersey would have to get a California lawyer to handle the case, all for a dvd where he had hoped to break even and get the movie seen by a few people.

Let us assume for the sake of argument, that the rights holder lost and The Four Feathers found to be "not commercially available". Appeal! More court costs for Mark!

Why this desperate, despicable and sense-free defense of rights to something with no commercial value? Because it is not The Four Feathers (1929) they were protecting. It was their current and valuable properties. "Take anything of mine," is the message, "And we will hurt you.

I cannot tell whether Archive.org is saying they are going to make available things that are not "commercially available" and defend themselves. If so, I hope they have deep pockets and I applaud their cojones.

If they are telling other people they can do so without warning them of the risks, they are not giving good advice.

Bob

I agree Bob, and there's a music company that puts out OOP vintage classical records that has gotten a demand letter from Sony. My only interest is this issue is the non-commercial and nonprofit use of the materials. I don't see Archives.org telling other people what to do.They are explaining what they are doing and the rationale behind that. The rest of us are on our own although it will be interesting to see if they are challenged.

If they are, I hope they can get a lawyer who will take the case for love; if they set up a kickstarter to fund their court costs, I will toss in a few bucks. As for me, I'm afraid I am a coward.

Bob

I wonder what would happen if the following scenario revealed itself:

Ra-ra-mont Pictures made a film in 1922. They had it in circulation that year and the next, then the film was withdrawn and finally lost. In 2017 a certain Finkus Missenfloss discovers a pristine print of the film in the attic of a house he has just purchased in Dunkleinenwasch, Austria. Being a bit of a cinephile, friend Finkus decides to make the film available to fellow film-watchers and releases it on DVD. He has had his friend Otto Schicklinghausblacken, a Wurlitzerist of note, record an accompaniment.

Ra-ra-mont Pictures in Hollywood get wind of the DVD floating around and immediately get their team of lawyers and other hangers-on to write a "cease and desist" letter of the threatening variety to friend Finkus. He ignores it and files it with his unpaid bills.

How does this story finish?

I think a judge would have to consider the following facts:

1. Finkus was not re-releasing the actual print of the film which would still be owned by Ra-ra-mont Pictures, he was dealing with it on another medium, viz DVD.
2. This other medium, further, was different from any original in that it carried a sound track of a work, viz, the accompaniment which carried a separate copyright.
3. Ra-Ra-mont pictures had not had any dealings with the film since 1923.
4. The producers and any others who were artistically involved with the film were long since dead - the last of whom had deceased in 1968.
5. The copyright of the film had been renewed in a blanket renewal of films in the back catalogue - with no intention of the film being made available for commercial gain by anyone.

That's Austrian law.

Bob

The film would be pd if it was released in 1922.

In order to clear up technical issues for those who have missed the point I was trying to make, lettuce alter the scenario to San Frippo, California - and the year to 1929.

There are lawyers hereabouts, but they probably don't feel comfortable mocking the process. It's a federal law, so you get sued in Federal court. First, there's the question of where the damage took place. The current successor corporation to RaraRount is a Delaware Corporation with main business offices in Manhattan, whose CEO is domiciled in Connecticut, and you, of course, are in Southern California where they have their studio. For various reasons, they file suit, serving you with various injunctions and orders to return their property, demands to show cause, pay lease on their property and so forth that will make no sense to you. You will have the right to reply to this before a judge in Federal Court in Minneapolis, which is where this is being prosecuted for some reason, and you must reply by two days ago, which is coincidentally the same day that the envelope with all of this was postmarked.

Let's say you find a lawyer in Minneapolis, your cousin Bernie, and the judge says he needs to see some facts before this can go to trial. So they demand all your records. This means your computer, your tax records, that time you were picked up for drunk & disorderly in '68, and so forth. They talk with your past and current employers, they set private detectives to dig up dirt on you and then they bring you in for deposition, which is like being in court, in that you are under oath and can (should) have your lawyer with you, but the lawyer cannot say anything. If you can't remember whatever obscure detail they demand, they will keep on asking the question to see if you lose your temper and say something they can use. If they don't like the answer you are giving they will interrupt to ask another question. This goes on for a while.

In the meantime, you have to keep paying your lawyers. And the court costs. Shall I continue?

Bob

There are lawyers hereabouts, but they probably don't feel comfortable mocking the process. It's a federal law, so you get sued in Federal court. First, there's the question of where the damage took place. .....
Bob

What if one were to just ignore all the threats etc.? Would one find a U.S. Marshall knocking at the door ready to escort one off to prison?

It seems that the litigation processes in the U.S., are carried on to limitless ends. We here in Australia had a firm making a boot called an "Ug Boot". They had been selling these since the year dot. A company in the U.S., then makes a boot and calls it the same name. This company then registers the name in the U.S. Because some people have imported the Australian Ug Boot in to America, the American firm issues a "cease and desist" order on the Australian firm and promptly also sues for damages. Me think it 'mazing!

Litigation is carried on to the limits of the resources of the parties involved. See Jarndyce v. Jarndyce and the court case it was actually based on, which commenced towards the end of the 18th century and collapsed ca. 1918, when the estate ran out of money. Wikipedia has a chilling article on it.

Bob

What is the saying? In the end, the only ones who win are the lawyers! (Goes away, throwing arms in the air and using language that would make a sailor blush)

Well, The Bard settled that one a long time ago...

There are lawyers hereabouts, but they probably don't feel comfortable mocking the process. It's a federal law, so you get sued in Federal court. First, there's the question of where the damage took place. .....
Bob

What if one were to just ignore all the threats etc.? Would one find a U.S. Marshall knocking at the door ready to escort one off to prison?

It seems that the litigation processes in the U.S., are carried on to limitless ends. We here in Australia had a firm making a boot called an "Ug Boot". They had been selling these since the year dot. A company in the U.S., then makes a boot and calls it the same name. This company then registers the name in the U.S. Because some people have imported the Australian Ug Boot in to America, the American firm issues a "cease and desist" order on the Australian firm and promptly also sues for damages. Me think it 'mazing!

The real crime here is that people actually go out wearing the ugly things.