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Draft of German copyright reform proposes memes should only be up to 128 pixels

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Re: Draft of German copyright reform proposes memes should only be up to 128 pixels

#111

Post by gumby »

dredmorbius wrote: post #83
gumby wrote: post #55

German copyright law is already overly draconian and holds the country back.

Which is of course ironic given the history: No Copyright Law: The Real Reason for Germany's Industrial Expansion? Did Germany experience rapid industrial expansion in the 19th century due to an absence of copyright law? A German historian argues that the massive proliferation of books, and thus knowledge, laid the foundation for the country's industrial might. https://www.spiegel.de/international/zeitgeist/no-copyri…

As was true for the USA, China, Japan....

Re: Draft of German copyright reform proposes memes should only be up to 128 pixels

#112

Post by dahart »

Mirioron wrote: post #106
dahart wrote: post #69

I don’t understand all the mock outrage; memes are already illegal in most cases at any size and copyrights are currently being enforced with takedowns in some cases. It seem like the title & text is trying to be intentionally inflammatory. It’s already illegal to use someone else’s image without permission, unless you’re covered by fair use (which memes are not automatically). Memes just happen to not be very enforc…

The reason people are outraged is because in practice memes were permitted. These new rules create more enforcement, which means that in practice people will likely have less freedom.

No, memes have not been “permitted”. Something is not legal just because you don’t get caught or sued. Memes that try to use frames from movies have been handed takedown notices. Other memes just haven’t been handed takedowns because the owner isn’t making enough money to make a legal defense worthwhile. It’s not ethical to claim it’s permitted just because someone can’t defend it.

Re: Draft of German copyright reform proposes memes should only be up to 128 pixels

#113

Post by dahart »

falcolas wrote: post #77
dahart wrote: post #69

I don’t understand all the mock outrage; memes are already illegal in most cases at any size and copyrights are currently being enforced with takedowns in some cases. It seem like the title & text is trying to be intentionally inflammatory. It’s already illegal to use someone else’s image without permission, unless you’re covered by fair use (which memes are not automatically). Memes just happen to not be very enforc…

> Isn’t that a good thing, and more freedom than internet memers have right now? Maybe? 128 pixels is a vanishingly small amount as display pixel density continues to rise. That's under an inch on many displays. Not to mention, while no fair use defense is automatic (fair use is a defense against copyright lawsuits in court), memes feel like they easily and cleanly fall under "parody", and perhaps "critique" categori…

I'd guess that small (or just large & blurry) is the idea -- to make the criteria for the exception depend on having the quality be less than the original. Still, small and legal is better than illegal?

> memes feel like they easily and cleanly fall under "parody", and perhaps "critique" categories.

I feel like the problem with that claim is the parody and/or critique is very commonly not related to the subject of the image in any way. It seems strange to claim I should be able to fairly use a copyrighted picture of a famous person in order to comment on memes, or vegetables, or (super commonly) as a completely random funny backdrop to a saying.

The ideas behind the parody and critique exceptions in fair use is that you can use a picture of Patrick Stewart to make comments about Patrick Stewart's acting or something he said in an interview, not that you can use a copyrighted picture of Patrick Stewart to comment on use of fonts on the internet, just because he happens to have a pose that makes the saying seem funny.

When I Google "memes" right now and look at images, I see an entire page of copyrighted images, and only one of them (out of 26 images on the first page) has text relevant to the image. The other 25 are not making a parody of the person(s) in the image, or critique something even remotely relevant to the image.

Re: Draft of German copyright reform proposes memes should only be up to 128 pixels

#114

Post by dahart »

dredmorbius wrote: post #82
dahart wrote: post #69

I don’t understand all the mock outrage; memes are already illegal in most cases at any size and copyrights are currently being enforced with takedowns in some cases. It seem like the title & text is trying to be intentionally inflammatory. It’s already illegal to use someone else’s image without permission, unless you’re covered by fair use (which memes are not automatically). Memes just happen to not be very enforc…

Memes would almost always seem to fall well into Fair Use protections, under both US and wider Berne law.

I googled it before I commented, and I can't find any lawyers who agree with that. They all say it might be possible, but that fair use is definitely not automatic, and that the best course of action is always to either acquire rights explicitly, or only post images that you have explicit rights for.

Re: Draft of German copyright reform proposes memes should only be up to 128 pixels

#115

Post by dahart »

Mirioron wrote: post #105
Mindwipe wrote: post #87

Earlier quoted context omitted.

I would say that's highly questionnable under Berne, and are fairly untested under US Fair Use protections. As most of them are stills, and use the entire still, there's no defence of a partial use of the work. Under Berne the key test would be if it was prejudicial to the copyright owner's economic rights, and it would be hard to argue the image had no economic value if it was being used in a popular meme. I do thin…

> Under Berne the key test would be if it was prejudicial to the copyright owner's economic rights, and it would be hard to argue the image had no economic value if it was being used in a popular meme. Isn't that backwards though? Doesn't the Berne Convention say that exemptions to reproduction of copyrighted works can't be prejudiced against the economic interests of the original author? Memes don't really infringe…

> Memes don't really infringe on the original works. Seeing an image of Peter Parker with some text on it doesn't really compete with the Spiderman movie, does it?

That is faulty, incorrect logic, and the law (both US copyright and the Berne convention) does not agree with you. You don't have the right to decide what is in the interests of the Marvel franchise, Marvel does.

Images of Peter Parker are being actively used for ancillary marketing purposes, and they can easily show that infringing use of their copyrighted image is diluting their brand and/or causing some financial harm.

BTW I'm not worried about Marvel, I'm more worried about the many smaller independent businesses, and individual creators, that lose control of their work and have no practical legal recourse.

Re: Draft of German copyright reform proposes memes should only be up to 128 pixels

#116

Post by dredmorbius »

dahart wrote: post #114
dredmorbius wrote: post #82

Earlier quoted context omitted.

Memes would almost always seem to fall well into Fair Use protections, under both US and wider Berne law.

I googled it before I commented, and I can't find any lawyers who agree with that. They all say it might be possible, but that fair use is definitely not automatic, and that the best course of action is always to either acquire rights explicitly, or only post images that you have explicit rights for.

So:

1. Yes, fair use is not an automatic pre-emptive validation of copyright infringement. Rather it is...

2. Under US law, an affirmative defence: "A new fact or set of facts that operates to defeat a claim even if the facts supporting that claim are true." (https://legal-dictionary.thefreedictionary.com/Affirmative+D...) That is, ajudication occurs in a legal (or criminal) case.

3. Also US law: there is a four-part test for fair use for fair use, the purpose and character of the use, the nature of the work, the amount of the work utilised, and the impact on the market of the original. Not all, or indeed any one test need be met for fair use to be found.

4. There is a parody right which has been argued, sometimes successfully, sometimes not, for fair use. I won't get into the argument but suggest: https://corporate.findlaw.com/intellectual-property/parody-f... which begins "It has been a long-standing practice to poke fun at our cultural icons, symbols, public figures and celebrities." Commentary by way of analogy or reference is also a long-standing tradition, which it could be argued that memes extend.

I'm not claiming these rights are absolute or uncontroversial. However they've been argued and asserted, and there is basis for a fair-use defence of virtually any meme use, so long as it's not injurious to the original.

The case of whether or not unpopular, fringe, or extremist-group adoption of specific images, concepts (a difficult case under copyright), characters, symbols, etc., might be considered injurious, and prosecutable via copyright, is ... an interesting question.

Re: Draft of German copyright reform proposes memes should only be up to 128 pixels

#117

Post by dahart »

dredmorbius wrote: post #116
dahart wrote: post #114

Earlier quoted context omitted.

I googled it before I commented, and I can't find any lawyers who agree with that. They all say it might be possible, but that fair use is definitely not automatic, and that the best course of action is always to either acquire rights explicitly, or only post images that you have explicit rights for.

So: 1. Yes, fair use is not an automatic pre-emptive validation of copyright infringement. Rather it is... 2. Under US law, an affirmative defence : "A new fact or set of facts that operates to defeat a claim even if the facts supporting that claim are true." ( https://legal-dictionary.thefreedictionary.com/Affirmative+D... ) That is, ajudication occurs in a legal (or criminal) case. 3. Also US law: there is a four-p…

> However they've been argued and asserted, and there is basis for a fair-use defence of virtually any meme use, so long as it's not injurious to the original.

Yeah, fair use definitely has been used successfully. And in many meme cases I'd agree the meme is not necessarily injuring the original. (Though note, lack of injury is in no way sufficient to justify copyright infringement.) But I would speculate(!) that meme images being irrelevant to a photo undermines the fair use defense, that using a copyrighted photo to comment on something other than the subject in the photo means that use of the photo is not "commentary" relevant to the photo that supports fair use.

Re: Draft of German copyright reform proposes memes should only be up to 128 pixels

#118

Post by sneak »

isoskeles wrote: post #95
sneak wrote: post #84

Earlier quoted context omitted.

In the US, the government dictates what hours you're allowed to drink, and in buildings that serve alcohol, you frequently need a license to be able to dance in those same places - even when there is no alcohol being served at that time.

There’s a difference between business licenses and making dancing itself illegal. I don’t know if that’s a real law somewhere in Germany, but it’s definitely further along in restricting personal freedom than requiring a business license to allow dancing in a club that serves alcohol, and I’d be surprised if Germany doesn’t have similar laws. Although I imagine there could be some very conservative local jurisdiction…

Having something be licensed simply means that it’s now illegal for you to do that thing.

It’s a euphemism.

Honestly, I feel it must be unconstitutional to outlaw protected expression by people simply because they are standing in a building in which other people serve alcohol at other times.

Re: Draft of German copyright reform proposes memes should only be up to 128 pixels

#119

Post by icebraining »

cr0sh wrote: post #101
icebraining wrote: post #59

Earlier quoted context omitted.

I'm guessing they are only thinking of raster images, like excerpts of photos or videos.

> I'm guessing they are only thinking of raster images Someone somewhere will come up with a JPG to SVG or CSS converter for images, if it doesn't already exist.

There are easier ways to get sued.

Re: Draft of German copyright reform proposes memes should only be up to 128 pixels

#120

Post by dredmorbius »

dahart wrote: post #117
dredmorbius wrote: post #116

Earlier quoted context omitted.

So: 1. Yes, fair use is not an automatic pre-emptive validation of copyright infringement. Rather it is... 2. Under US law, an affirmative defence : "A new fact or set of facts that operates to defeat a claim even if the facts supporting that claim are true." ( https://legal-dictionary.thefreedictionary.com/Affirmative+D... ) That is, ajudication occurs in a legal (or criminal) case. 3. Also US law: there is a four-p…

> However they've been argued and asserted, and there is basis for a fair-use defence of virtually any meme use, so long as it's not injurious to the original. Yeah, fair use definitely has been used successfully. And in many meme cases I'd agree the meme is not necessarily injuring the original. (Though note, lack of injury is in no way sufficient to justify copyright infringement.) But I would speculate(!) that mem…

Copyright, again, in US law (applies to many though not all HN readers) is hinged on a Constitutional justification "To promote the Progress of Science and useful Arts" (Art I, Sec 8, Clause 8). That is: to provide a benefit to the public.

An element of which, this house argues, is the enjoyment of and illumination provided via, Internet memes.

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