今年10月から12月にかけて、東日本では東北電力女川原発２号機が、西日本では中国電力島根原発２号機が、それぞれ再稼働した。原子力関係者にとって沸騰水型軽水炉（ＢＷＲ）の再稼働はいわば「悲願」である。

情報通信審議会　情報通信技術分科会　陸上無線通信委員会　基幹系無線システム作業班（第3回）

総合職技術系（情報通信行政）の説明会情報を更新しました。

　今から83 年前の12 月8 日、日本海軍の真珠湾奇襲攻撃で、太平洋戦争が始まりました。中国での戦争が膠着化するなかで、ラジオの勇ましい大本営発表のニュースに多くの国民が熱狂し、この戦争を支持しました。その3 年8 カ月後に、多くの人が犠牲になり、国土が焦土化し敗戦を迎えることを、この時、予想した人はほとんどいなかったのではないでしょうか。　しかし、歴史を振り返れば、そもそも初めから勝目などない戦争であることを知りながら「勝つだろう」などと空虚な希望的観測のもとに、軍や政府..

　本紙１１月２５日号３面に掲載した「NHK職場のパワハラ」と題した記事（http://jcj-daily.seesaa.net/article/505948616.html）は、職場の上司の部長からパワハラを受けたNHKグローバルメディアサービスのデジタルニュース部門に所属する非正規職員・原田勤さん（元埼玉新聞記者）自らその実態を明らかにしている。　そのパワハラは①２０２２年４月、ＮＨＫニュースウェブの原稿の校閲作業中に難癖をつけに来た部長（元NHK社会部記者）がいきなり校閲..

It’s critical that copyright be balanced with limitations that support users’ rights, and perhaps no limitation is more important than fair use. Critics, humorists, artists, and activists all must have rights to re-use and re-purpose source material, even when it’s copyrighted. 

Yesterday, EFF weighed in on another case that could shape the future of our fair use rights. In Sedlik v. Von Drachenberg, a Los Angeles tattoo artist created a tattoo based on a well-known photograph of Miles Davis taken by photographer Jeffrey Sedlik. A jury found that Von Drachenberg, the tattoo artist, did not infringe the photographer’s copyright because her version was different from the photo; it didn’t meet the legal threshold of “substantially similar.” After the trial, the judge in the case considered other arguments brought by Sedlik after the trial and upheld the jury’s findings. 

On appeal, Sedlik has made arguments that, if upheld, could narrow fair use rights for everyone. The appeal brief suggests that only secondary users who make “targeted” use of a copyrighted work have strong fair use defenses, relying on an incorrect reading of the Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith. 

Fair users select among various alternatives, for both aesthetic and practical reasons.

Such a reading would upend decades of Supreme Court precedent that makes it clear that “targeted” fair uses don’t get any special treatment as opposed to “untargeted” uses. As made clear in Warhol, the copying done by fair users must simply be “reasonably necessary” to achieve a new purpose. The principle of protecting new artistic expressions and new innovations is what led the Supreme Court to protect video cassette recording as fair use in 1984. It also contributed to the 2021 decision in Oracle v. Google, which held that Google’s copying of computer programming conventions created for desktop computers, in order to make it easier to design for modern smartphones, was a type of fair use. 

Sedlik argues that if a secondary user could have chosen another work, this means they did not “target” the original work, and thus the user should have a lessened fair use case. But that has never been the rule. As the Supreme Court explained, Warhol could have created art about a product other than Campbell’s Soup; but his choice to copy the famous Campbell’s logo was fully justified because it was “well known to the public, designed to be reproduced, and a symbol of an everyday item for mass consumption.” 

Fair users always select among various alternatives, for both aesthetic and practical reasons. A film professor might know of several films that expertly demonstrate a technique, but will inevitably choose just one to show in class. A news program alerting viewers to developing events may have access to many recordings of the event from different sources, but will choose just one, or a few, based on editorial judgments. Software developers must make decisions about which existing software to analyze or to interoperate with in order to build on existing technology. 

The idea of penalizing these non-“targeted” fair uses would lead to absurd results, and we urge the 9th Circuit to reject this argument. 

Finally, Sedlik also argues that the tattoo artist’s social media posts are necessarily “commercial” acts, which would push the tattoo art further away from fair use. Artists’ use of social media to document their processes and work has become ubiquitous, and such an expansive view of commerciality would render the concept meaningless. That’s why multiple appellate courts have already rejected such a view; the 9th Circuit should do so as well. 

In order for innovation and free expression to flourish in the digital age, fair use must remain a flexible rule that allows for diverse purposes and uses. 

Further Reading: 

• EFF Amicus Brief in Sedlik v. Von Drachenberg 

　１９７０年代、小中学校で集団予防接種が実施されていました。当然ですが予防接種は少数ですが被害者を発生させるものです。

A federal appeals court just gave software developers, and users, an early holiday present, holding that software updates aren’t necessarily “derivative,” for purposes of copyright law, just because they are designed to interoperate the software they update.

This sounds kind of obscure, so let’s cut through the legalese. Lots of developers build software designed to interoperate with preexisting works. This kind of interoperability is crucial to innovation, particularly in a world where a small number of companies control so many essential tools and platforms. If users want to be able to repair, improve, and secure their devices, they must be able to rely on third parties to help. Trouble is, Big Tech companies want to be able to control (and charge for) every possible use of the devices and software they “sell” you – and they won’t hesitate to use the law to enforce that control. 

Courts shouldn’t assist, but unfortunately a federal district court did just that in the latest iteration of Oracle v. Rimini. Rimini provides support to improve the use and security of Oracle products, so customers don’t have to depend entirely on Oracle itself . Oracle doesn’t want this kind of competition, so it sued Rimini for copyright infringement, arguing that a software update Rimini developed was a “derivative work” because it was intended to interoperate with Oracle's software, even though the update didn’t use any of Oracle’s copyrightable code. Derivative works are typically things like a movie based on a novel, or a translation of that novel. Here, the only “derivative” aspect was that Rimini’s code was designed to interact with Oracle’s code.  
 
Unfortunately, the district court initially sided with Oracle, setting a dangerous precedent. If a work is derivative, it may infringe the copyright in the preexisting work from which it, well, derives. For decades, software developers have relied, correctly, on the settled view that a work is not derivative under copyright law unless it is substantially similar to a preexisting work in both ideas and expression. Thanks to that rule, software developers can build innovative new tools that interact with preexisting works, including tools that improve privacy and security, without fear that the companies that hold rights in those preexisting works would have an automatic copyright claim to those innovations.  

Rimini appealed to the Ninth Circuit, on multiple grounds. EFF, along with a diverse group of stakeholders representing consumers, small businesses, software developers, security researchers, and the independent repair community, filed an amicus brief in support explaining that the district court ruling on interoperability was not just bad policy, but also bad law.  

 The Ninth Circuit agreed: 

In effect, the district court adopted an “interoperability” test for derivative works—if a product can only interoperate with a preexisting copyrighted work, then it must be derivative. But neither the text of the Copyright Act nor our precedent supports this interoperability test for derivative works. 

 The court goes on to give a primer on the legal definition of derivative work, but the key point is this: a work is only derivative if it “substantially incorporates the other work.”

Copyright already reaches far too broadly, giving rightsholders extraordinary power over how we use everything from music to phones to televisions. This holiday season, we’re raising a glass to the judges who sensibly reined that power in.