Copyright Education: A FedEx Kinko's Case Study

Wake up class. It is time for some more copyright education.

Does everyone remember our previous lesson? It was about a KODAK photo printing kiosk that I found in a Target store. This time, our case study is from a FedEx Kinko printing store where Shannon was printing some resumes. Reviewing the KODAK case study will help significantly in today's case study.

Ok class. Let's begin.

This notice is next to a computer.

Copyright Law Notice:
The Copyright Law of the U.S. (Title 17, U.S. Code) governs the making of reproductions of copyrighted works. A computer program or software protected by copyright may not be copied without the authorization of the copyright owner, except that a copy may be made in accordance with §117 of the Copyright Law for backup purposes for protection in the event that the original software malfunctions. FedEx Kinko's Office and Printing Services, Inc. does not authorize the use for this computer of the reproduction of copyrighted software other than allowed under §117. The person using this machine is responsible for and would be liable for any infringement. Our primary objective is to take care of your needs. We sincerely appreciate your understanding and cooperation in complying with the FedEx Kinko's copying policy.

Who can spot the first sentence with a false statement? Well, it is the second sentence.

A computer program or software protected by copyright may not be copied without the authorization of the copyright owner, except that a copy may be made in accordance with §117 of the Copyright Law for backup purposes for protection in the event that the original software malfunctions.

Like last time, copying software can be legal by fair use. Specifically, the two (court approved) fair uses are

• modification of copyright software for personal use (Galoob v. Nintendo) and
• making copies in the course of is a fair use, when it is the only way to get access to the "ideas and functional elements" in the copyrighted code, and when "there is a legitimate reason for seeking such access" (Sega v. Accolade).

The second reason that the sentence is wrong is similar to last time. Even if the copyright owner does not "authorize" the copying of their software, it is still legal to do so if the copyright of the software says that it is legal to copy the software. The most popular software copyright with this property is the GPL.

You might be wondering, "why would the copyright owner copyright their software under a copyright like the GPL if they do not authorize copying?" The easiest explanation for this is that the copyright owner changed their mind, such as when the copyright is sold to another party.

There are no more factual errors in this copyright notice, but there is an interesting contradiction yet to be discussed.

FedEx Kinko's Office and Printing Services, Inc. does not authorize the use for this computer of the reproduction of copyrighted software other than allowed under §117. ... Our primary objective is to take care of your needs.

If the "primary objective" of FedEx Kinko is to serve their customers, then they would allow there customers to do any legal activities (such as copying GPL'ed software or copying any software for fair use).

This sign was next to a location where someone would connect a laptop.

The Copyright Law:
The Copyright Law of the U.S. (Title 17, U.S. Code) governs the making of reproductions of copyrighted works.

The Person using the reproduction equipment is liable for any infringement.

For more information on the laws regarding copyrights contact the United States Copyright Office at 202.707.3000.

The FedEx Kinko's policy requires written permission from the copyright holder in order to reproduce any copyrighted works.

Our primary objective is to take care of your needs. We sincerely appreciate your understanding and cooperation in complying with the FedEx Kinko's copying policy. Thank you for your business.

Please see a FedEx Kinko's team member to obtain a Copyright Permission Request form.

It is the prerogative of FedEx Kinko to stipulate what services the do and do not offer, but their "primary objective" is certainly not "taking care of your needs" if they burden you by requiring you to go above and beyond what is required by law in order to create a legal reproduction of a copyrighted work.

With such taxing requirements to carrying out a legal activity, it is clear that FedEx Kinko is "primarily" concerned for copyright holders and only secondarily concerned for their customers.

Participating in Government

I did something today that I have never done before. I sent a letter to my (Iowa) senator, Tom Harkin. The letter I wrote, which can be found below, was about the Open Textbook Act of 2009.

In this context, "open" means that the content in the textbooks is free (...well, it means more than that). Thus, the cost of a physical textbook would only come from the process of printing and shipping the book. For an electronic book (an ebook), it would be free! For colleges, that means that college students much less for physical textbooks for nothing for ebooks. For K-12 schools, it means the the school district would have thousands of dollars a year!

Hello Senator Harkin,

As an Iowan, recent alumni of Iowa State University, and advocate of open culture, I would like to say that you should support the Open College Textbook Act of 2009. You have great influence over this bill because it is currently in your US Senate Committee on Health, Education, Labor and Pensions. Please give this bill more attention so that it can reach the senate floor. This type of bill is very innovative and too good to simply let it "die" in committee.

Thank your for your service in the US Senate and reading my letter.

~Tyson Williams

Copyright Education: A KODAK Case Study

Today I went to Target with my fiance Shannon to print a picture that she needed. While clicking through the various prompts at the KODAK Picture Kiosk, she did not hesitate to fly by the following screen. I however could not help but go through the prompts on another kiosk and take this picture with my cell phone:

"It is illegal to reproduce photographs taken by a professional photographer or other copyrighted pictures without permission of the copyright owner.

By reproducing this photograph, I acknowledge that the picture I am reproducing is not copyrighted, or I have obtained permission from the copyright holder."

Now, pretend that we are back in elementary school. Instead of a DOL (daily oral language) problem (in which you try to find various grammar mistakes in an example sentence), try to find the mistakes in the above paragraphs on the issue of copyright.

Are you done yet?...Ok. Here is what I found.

1. The first paragraph seems to group all pictures which are illegal to reproduce into two categories. If a picture was taken by a professional photographer, it belongs in group A. Then, any remaining pictures that are copyrighted belong in group B. Why is it that it is illegal for me to reproduce any picture from group A? What if a professional photographer took a picture (which is then automatically copyrighted) and then gave me permission to reproduce it? That should be legal, but the wording at this kiosk suggests otherwise.
2. Now, suppose that a picture X was taken by a professional photographer, was copyrighted, and I do not have permission from the copyright owner to reproduce it. Does that mean it is always illegal for me to reproduce X...as alluded to by this kiosk? Absolutely not! I can legally use or reproduce (or several other verbs) any copyrighted work as long as my actions are covered by fair use.
3. Ok, so now suppose that...a picture X was taken by a professional photographer, was copyrighted, I do not have permission from the copyright owner to reproduce it, and my reproduction of X is not covered by fair use. Surely now it is always illegal for me to reproduce X, right? However, the answer is still no because not all copyrights forbid me from reproducing the copyrighted work. If the photograph that I wanted to reproduce was copyrighted under a Creative Commons License, then anyone can (among other things) "copy, distribute and transmit the work."

It is interesting to note that there is no mention of professional photographers in the second paragraph, which would agree with my first argument above.

The statement that you have to accept in order to use the kiosk suggests that its list of conditions is exhaustive. However, it is also legal to reproduce photographs when the reproduction is covered by fair use or when allowed by copyright. People are being misinformed everyday with benign messages like this that leave out such crucial features of our copyright law.

In conclusion, I think it should be illegal to lie about what is illegal!

3-4-10 UPDATE:
ars technica just wrote an article about this same issue in relation to the Super Bowl.

$1.92 Million...Really?

Last week, the (second) file sharing case of Thomas-Rasset v. RIAA finished and made national headlines when Thomas-Rasset was found guilty and sentenced to pay $1.92 million for illegally downloading 24 songs. I have been wondering all weekend if I should create a post on this, because I don't want to just say what everyone else is saying. However, I thought of something novel.

Well, I think the Ars articles about the trial were great. That is how I stayed informed of the trial's progression. The latest article from Ars on the issue is about Thomas-Rasset's options. My favorite section was about "Changing the Law". Nearly everyone thinks she is guilty, but almost no one thinks that she should have to pay $1.92 million for stealing $30 worth of music. I think that Thomas-Rasset will be a catalysis for change in copyright law, especially the allowed damages.

Currently, the Title 17 (section c) of the U.S. Copyright Act allows for damages between $750-$30,000 for "unwilful" infringements and $750-$150,000 for wilful infringements. I think that absolute dollar amounts are poor choices for several reasons.

In this specific case, nearly everyone believes that $1.92 million is too large for stealing $30 of music. It might even be in violation of the Eighth Amendment of the Constitution, which prohibits "excessive fines". So, if the intellectual property (IP) is too cheap (i.e. $1 for 1 song), absolute dollar amounts seem too large.

What if the exact opposite were true? Can you image a situation where some piece of IP costs $200,000 (to legally purchase)? In that case, it would be would be cheaper to "wilfully infringe" and only be liable to pay $150,000. So, if the intellectual property is too expensive, absolute dollar amounts seem too small.

I can think of one other, albeit, minor case. The Copyright Act became law in 1976 and went into effect in 1978. So, when our congressmen created this act and decided on the absolute dollar amounts mentioned above, did they mean the value of the dollar in 1976, 1978, the year of the infringement, or the year of the verdict? This question is non-trivial. I personally think that they meant the value of the dollar in 1976, but then (assuming we always have positive inflation), future Americans will be able to pay the maximum allowable fine with money they find in their couch.

My novel idea is to replace the absolute dollar amounts with amounts relative to the value of the IP that was infringed upon. This would certainly solve my first two examples with IP of both extremely high and low values. One additional clause should be that these relative amounts should be for the dollar value of the IP in question at the time of the infringement since that was the legal alternative to the copyright infringement. The only remaining critique is to claim that the various inflation indices (such as the Consumer Price Index (CPI)) used to calculate the damages are not actuate.

If fallout from the Thomas-Rasset case instigates copyright reform, I hope the absolute dollar amounts in the Copyright Act are replaced with amounts relative to the IP in question.