Comments on: Fair use is not a consumer right

Copyright Alliance head Patrick Ross says industry interests asking the government to regulate free speech are going down the wrong path.

[spruceman]

Fair Use

It's labeled as commentary. Doesn't matter how dumb or unfair his opinion about a subject is. As long as it's labeled as commentary, I have no problem with it being published.

[GreyGeek]

Not commentary, opinon or editorial. It is ....

a "Submarine" article.

Read Paul Graham's article "The Submarine" and you'll identify this piece of propaganda for what it is: stealth market manipulation and political influence.

http://www.paulgraham.com/submarine.html
"Remember the exercises in critical reading you did in school, where you had to look at a piece of writing and step back and ask whether the author was telling the whole truth? If you really want to be a critical reader, it turns out you have to step back one step further, and ask not just whether the author is telling the truth, but why he's writing about this subject at all."


Why was this article written? Certainly not to persuade the casual reader. It really doesn't matter what he or most readers think about this topic, as long as they remain unorganized and passive.

It was written so that a printed copy of it could be included in a PR packet, along with copies of dozens of other PLANTED articles, to be given as persuasion to some politician(s) whom the organization fronting the Entertainment industry was paid to lobby.

What does the Entertainment industry want from the lawmakers? What they've always been seeking since morals and ethics were abandon by corporate America: higher entry barriers to competition (monopoly), fewer restrictions on their corporate activities and claims, and MORE restrictions or the outright elimination of the rights of citizens. In other words, a Landlord/Surf society.

The Robber Barons of the 18th Century would be proud. The final step will be when they have armed soldiers machine gun men,women and children (http://www.du.edu/anthro/ludlow/cfhist.html It was some of Rockefeller's "finest" work.) because they refused to work for slave wages and under oppressive and unsafe conditions. wait, isn't that what they've already done by "outsourcing" manufacturing to 3rd World countries, and China?

[melee70]

Patrick Ross response email:

Here is the bulk of his email response to me. His hubris is almost comical. He also uses a horrible analogy that has more holes than a rotted fishnet.

Thank you for writing. I find it interesting you're citing US Code and aren't familiar with "affirmative defense." It sounds like you need to speak with a copyright attorney, but you can start by reading our FAQ on fair use at http://www.copyrightalliance.org/copyrightsandyou/fairusefaqs



I'm glad you wrote because your confusion makes my point for me. As you yourself point out, fair use is a limitation on an otherwise exclusive right. Congress, empowered by the Progress Clause of the US Constitution, in 1790 granted limited monopoly rights to creators. Nearly 200 years later, a fair use section was added to copyright law, that puts limits on those rights.



Imagine I own a farm and you like to fish downstream from my farm. I have property rights over my farm, but the government imposes limits on my exclusive rights. For example, I can't leach hazardous biochemical waste produced on my farm into the stream. That's good for you and the fish that you caught, but you have no "rights" related to my farm. I have limitations on my rights that benefit you and everyone else who wishes to use that stream.



The confusion you've shown here over the use of the word "right" shows exactly why it would be dangerous to use copyright warnings to explain fair use. Whole courses in law school are taught on this; it is not summed up by citing a portion of the US Code, nor is it summed up in my op-ed. It is far more complicated than that.

[musicboy2003]

So Pathetic

I wonder if any of you have the talent, intelligence or creativity to actually produce anything that would merit copyright protection? Have you ever written a book or a musical work? Have you made a scientific discovery, invented a revolutionary device or directed an award-winning film? Of course not. Not a single one of you has done anything remotely resembling a creative, copyrightable act. If you had, you would not be found whining in this thread about your "fair right" to loot someone else's intelectual property, now would you? No, you would be fighting for your rights as a creative individual against people like yourselves who sit around enjoying copyrighted works you have illegally downloaded, pirated, duped or keygen'd. Your arrogance is only exceeded by your contempt for creative people everywhere. Can you imagine what it would be like to write a song that someone would actually want to purchase, only to see it posted on the net for the world to consume, free of charge, by intellectual thugs like yourselves? It is so easy for you to utterly disrespect something you couldn't possibly understand.

[summuz-20931123114014519380889]

even more patheitc

...is that you miss the point on copy protection. As an artist I do not want my work pirated. However, that does not mean I want it crippled by DMA. Anyone who purchases my work should be free to enjoy it, not be told when, where, and how many times they may make use of it. Even if the bulk of the profit from DMA went to the artists, I still could not support that manages the consumers like criminals. Of course, we as artists, do not see this profit. It lines the pockets of greedy executives. Most of whom, as you say, have not "done anything remotely resembling a creative, copyrightable act".
Piracy is not the answer, but neither is a protection policy that alienates the consumer from the artist, and ensures the only people who experience their media without restriction are the criminals willing to crack it.

[summuz-20931123114014519380889]

even more pathetic

...is that you miss the point on copy protection. As an artist I do not want my work pirated. However, that does not mean I want it crippled by DMA. Anyone who purchases my work should be free to enjoy it, not be told when, where, and how many times they may make use of it. Even if the bulk of the profit from DMA went to the artists, I still could not support that manages the consumers like criminals. Of course, we as artists, do not see this profit. It lines the pockets of greedy executives. Most of whom, as you say, have not "done anything remotely resembling a creative, copyrightable act".
Piracy is not the answer, but neither is a protection policy that alienates the consumer from the artist, and ensures the only people who experience their media without restriction are the criminals willing to crack it.

[ssauble]

I Have.

I have several times. I'm published in over 100 countries. What
about you?

Every useful corporation has benefitted from piracy. So has
every artist. Notice, this isn't the artist's battle. They are not the
ones fighting.

Now, if you wanted to USE my song to manipulate your image
and deceive people into believing your something, someone that
you aren't. Then well, I'll have something to say about it.

As Woody Guthrie said: "This song is Copyrighted in U.S., under
Seal of Copyright # 154085, for a period of 28 years, and
anybody caught singin? it without our permission, will be mighty
good friends of ourn, cause we don?t give a dern. Publish it.
Write it. Sing it. Swing to it. Yodel it. We wrote it, that?s all we
wanted to do."

[itango]

We need clarity for consumer rights

When I buy a CD containing music (or a DVD with a movie)in consideration of my having paid the purchase price, I receive a "license" to use such CD or DVD, and access the content. The physical media I actually own, but that is another story.

I can take such ORIGINAL CD or DVD, and play it on any device I have that will accept it, or can take it and play it on another person's device, so long as I am not doing so for commercial gain. In other words, I cannot take it to a friend's house where there are 30 people, and charge them to view the movie or listen to the CD.

I also have the absolute legal right to "loan" the ORIGINAL CD or DVD to a friend, or to "resell" the CD or DVD to a third party once I get tired of the music/movie, as long as what I am transferring is the ORIGINAL CD or DVD, and keep no copies.

These are examples of "fair use rights", sometimes established or further clarified through court cases.

The reason those warnings the media industries lambasts us with are so obnoxious is that: (i) they are usually incorrect, and (ii) they misstate the law, and make innocent people believe that they have no right to do things which in fact they do.

Last night I was watching a purchased DVD three- disc set, and I saw from the warning that "loaning" the DVD was "also prohibited by law", and I was "subject to prosecution" for doing so. I laughed. Unfortunately, someone else might not laugh, and may believe they cannot legally loan their DVD or CD. They then could theoreticaly be induced to purchase a second DVD in order to maker it available to a friend or relative, when in fact they were within their rights to loan it in the first place. This is deceptive and wrong.

The author is correct in stating that fair use is an affirmative defense, not a right. Why is the disctinction important? This means that once the media conglomerates sue you for "infringement" you can trot out your affirmative defense, and the judge will likely side with you, as long as you follow the law. But in the meantime, you will have to pay a lawyer, may have to endure the nasty discovery process, may be deposed, etc, etc. etc. etc., in order for the court to decide that your defense was in fact valid.

I recommend that if anyone is ever sued by the media conglomerates, and has scrupulously followed the letter of the law, they should counterclaim for frivolous prosecution or any other cause of action they can think of, and not be afraid to take on the media conglomerates. If we have more court challenges of this nature, then the media vultures will eventually stop trying to strip consumers of their affirmative defenses.

For the record, I do not pirate CDs or DVDs, or download proprietary content without paying for it - I have legally purchased all my media, including software.

[itango]

General piracy (especially if done in the high seas) may be theft

but downloading music/movies without paying, or copying CDs or DVDs and re-distributing them, is COPYRIGHT INFRINGEMENT.

[expatincebu]

Aaarrrgh!

As a practicing pastafarian I am greatly offended by your remark.
The only way to save the world from global warming is to increase
the numbers of pirates. It is not theft, it is religious practice.

[markdoiron]

Article and Comments Miss the Point

The article is about the notices before viewing a show. The point isn't that they need to be clarified. These notices are stupid and ignored by the public. Whether they're correct or biased, as many comments allege, is irrelevant. They need to be dumped into the trash can of absurdity. I want the main menu as soon as the DVD spins up. And I don't need the legal jargon before or after a sports event--let the networks spend that time on paid advertising.

--mark d.

[kenneth42]

Fair Use is not a consumer right?????

I buy the dvd/cd, and it's mine to do whatever with, enough said!

[ColdMast]

The Copyright law needs to be adjusted

it doesn't fit in the world of bits and byte

as a consumer I want the right to purchase a media and watch it on any device that with a display and If I cant do that I'm just going to boycott, do I really need all the bells and whistles or is it just simpler to read a book.

public domain rocks (FREE)
The thoughts and ideas of others, generations past, carried through to the future: a growing blob of human achievement.

[Jeffhs]

Oh, really?

This whole thing is about the most ridiculous thing I've heard of in a long time. People have been recording copyrighted radio programs on magnetic audio tape for decades, and no one has ever gotten caught that I'm aware of. Now we have a little thing called the DMCA and Fair Use, however, and in one fell swoop everything has changed. Personally, I won't let any of it bother me. I don't thing the government can do much of anything (if anything at all) to prevent people from recording TV shows on analog video tape, or even to copy CDs or DVDs for personal use, as long as the copies are not sold. Remember the hubbub in the mid-1970s over recording copyrighted television shows and/or movies on video tape? The ruling was overturned, with the result that everyone can now record anything they see on TV. As long as they don't try to sell the tapes, they aren't doing anything wrong. I have a rack full of VHS videocassettes on which I've recorded countless TV shows from 20+ years ago, and I've never served time in prison for it; I'm sure many other people have done the same thing.

The DMCA was enacted to prevent illegal copying and distribution of DVDs and CDs. It does not prevent the making or the private use of such copies. If there were such a ruling that prohibits the latter, our jails would be full to overflowing with people who have in their possession video and/or audio tapes they recorded from radio or TV.

The comment in the article about discussions of, say, a baseball player's home run record around the office water cooler being a violation of the DMCA or Fair Use doesn't make sense to me. How much further will the DMCA go, anyway? If it's already so broad as to prevent such a thing as I just mentioned, who is to say it won't become so broad in scope that it eventually declares illegal the very act of people talking over the telephone or in person about a TV show they recently saw? Worst case, the DMCA could become so powerful as to declare illegal the very act of speaking to other people about anything. I feel the DMCA is very definitely headed in that direction. First it takes away our right to record programs and/or music from TV or radio (something people have done with audio tape for decades, and still do today) as I said above; then it gets into the controversial issue of free speech.

Good grief.

[MichaelWorobec]

no fair use, then no copyrights

Fair use is one important right retained by the people in the granting of a limited set of property rights to the authors of media. Remember, absent any law, the people have all rights and the authors have none. The people have wisely chosen to enact law and grant limited property rights to authors while retaining some very important rights for themselves. In short, a grant of copyright is not without conditions. Any failure on the part of an author to honor those conditions, especially any deliberate subversion of those rigths, should result in the nullification of the copyright. For example, the authors of any copy-protected DVD should be stripped of their copyrights because the application of copy protection to media explicitly violates the terms of the grant of copyright.

A violation of the people's rights by any author should be as serious a transgression as the violation of an authors' rights by any person.

So, absolutely, any legal claim or threat presented to a person by an author should also be accompanied by the balancing statement of the people's rights. That, in fact, is the best context for the education for which Mr Ross argues.

Really what is going on here is that the media industry is trying to rewrite the origins of copyrights, as more generally are the holders of any property right in our society today. This is intensifying just as the concentration of property rights into the hands of fewer and fewer continues to proportions not seen since the industrial revolution, or maybe since feudalism.

We need to resist this attempt to redefine our democracy as a plutocracy.












The media industry, though, is agressively seeking through law and technology to turn this entirely around. The industry wants the owners' property rights to be inherent and abolute, such that the owners maintain total control over any use. Under copyright law, written and common, however, there in fact cannot be any barrier to fair use. Any attempt at constructing a barrier should result in the nullification of the people's grant of property rights.

[mectron]

Fair use is a right PERIOD

but only if your french it seem... when you live in Canada you get to have 2 warning when playing DVDs. The english one is telling you that you cannot make any copy of the movie for any reasons, the french one says about the same except that there is a exception...: EXCEPT FOR PERSONAL USE.

But there is a easy way to end this bull... shutdown down openly criminal organisation such as: RIAA, MPAA, Sony, Macrovision. those companies have been proven guilty of countless crimes and yes they are still permited to continue to STEAL MONEY from consumers.

[redeemer90]

Patrick Ross is paid to promote stronger copyright laws

Firstly I cannot believe cnet has allowed you to post an article such as this. You should have it in your blog. Anyway, since you have posted it now, you should also make sure people reading this article get your agenda right, which is
"To promote stronger copyright laws"
and
copyrightalliance is just a lobbying group who does dirty work for the RIAA, MPAA, *

[ShoutingLoudly]

Defending copyright holders' right to lie

Ross never disputes the fact that copyright holders are lying to
the general public through misleading, over-reaching copyright
claims. But the truth, he argues, would be too inconvient to
display at the end of a football game.

It's not that hard to be honest and convey the message that one
should not infringe on copyright. Here's just one suggestion:
"This program is copyrighted and protected by US and
international copyright laws, which restrict copying, distributing,
and public performance."

See? Is that so hard? The only problem is, it presents the
complex legal subtleties.

Ross is trying to keep us from making overly simplistic fair use
claims, but copyright is complicated in both directions.
Simplistic property claims are simply incorrect, and the FTC can
and should regulate such blatantly misleading legal claims.

[cjovalle]

Er... not quite.

The DMCA does not prohibit making mp3s from a CD. The DMCA prohibits circumventing technological copyright protection measures. Those are different things. It is legal to "space shift" in the absence of a technological protection measure.

[johnthedj]

FBI Warnings

I can give a sure view of how the FBI warnings have misrepresented copyright law. In the schools system here I had been trying to get my kids Media Center to convert their old film strips to cd or powerpoints. Thousands of already done media. (Mainley english the stuff that still is current). They felt it was violating copyrights and sited the FBI warnings and wouldn't even considerate. They clearly would allow this to the Education of our children. There is 2 fairuse exemption to this 1. The material is for education purposes, and 2. Filmstrips are deemed outdated technology and are no longer availble. Both of these are in the DMCA!!

[markhahn]

remarkably unhelpful

that commentary was remarkable mainly in that it didn't offer any real illumination to the issue.

[ghsts2]

copyright death

The courts have upheld that over exertion of copyrights, eg claiming you have greater legal ownership than is afforded, lead to loss of what rights you did have.

[sfcrotty]

Fair use as "affirmative defense"

Claiming that the fair use portions of copyright law are simply an "affirmative defense" is complete and utter ********. To borrow the example given here, your neighbor could sue you for growing daisies in your lawn, and your "affirmative defense" would be that there's no law against it.