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Separating fact from fiction on digital copyrights
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In a column, one of its executives, Maura Corbett, recently defended that action on behalf of CCIA.
Despite the fact that we've been reading and hearing these copyright notices for decades, in CCIA's view, Western civilization is now suddenly in jeopardy. Corbett made the same argument CCIA's president offered at the press conference announcing the FTC filing: "If we were to believe what they tell us, discussing Barry Bonds' home runs around the water cooler would put us all in jail."
Really? The last few weeks I have been completely unable to avoid hearing about Barry Bonds, whether around the proverbial water cooler, on call-in sports radio programs, in idle moments on 24-hour cable news channels, or even during local weather reports ("there's only a low chance for a rainout for tonight's game, and Bonds could have a bit of a boost--a natural one, not artificial--for that next home run with a strong 15-mile-per-hour wind from the east; we'll keep you posted, Ken"). Sometimes I wish speech about Barry Bonds could in fact, be stifled.
But let's look beyond the hyperbole. CCIA has offered no demonstration of harm caused by copyright notices; if they had any they would surely have included it in their FTC filing, but it's eerily silent on that point. So what do they really want? They say they want additional wording explaining ways copyrighted works could be used without authorization, because fair use is a "consumer right."
This misleading statement presents considerable irony, given the fact that CCIA is filing a complaint alleging deceptive language. Fair use, as CCIA must surely know, is not a "consumer right," but rather an affirmative defense. And this is an important difference.
It's true that copyright law contains some exemptions, such as commentary and criticism, where one may be able to use a copyrighted work without authorization, but the full extent of those exceptions is intentionally not defined in the statute. (In one example of fair use, CNET is free to report and comment on newsworthy events and to offer informative consumer reviews of new products.)
Court decisions have further delineated what some of those cases of fair use might be. Under fair use, if I take without permission and make use of your copyrighted work, and you sue me, I can assert, "Hey, I know I didn't ask you, and you're quite upset about my use, but I firmly believe it's legal." Then a judge decides whether my use was an infringement or instead an unauthorized use that turned out to be exempt under fair use.
Many unauthorized uses of copyrighted works are criminal and infringing, and copyright notices help remind people that there are consequences to these uses. A few uses may be able to pass muster as fair use before a judge. Still others, including some uses within the home, may not be specifically designated fair use by a court, and may or may not qualify if put to the test, but are generally not the subject of legal challenges by a copyright owner.
So, how exactly would the FTC rewrite these copyright notices to reflect a consumer's ability to attempt a fair use defense? Should they paste in all of the above language? We're wading into the area of providing legal advice, and these examples aren't sufficiently detailed for that. We could have an IP lawyer fold in a treatise on fair use, and baseball announcers could start reading it at the seventh-inning stretch to make sure they finish it before the end of the game.
I don't think we want copyright warnings to become a fair use public service announcement. No, these warnings do exactly what they're meant to do--notify consumers in a succinct fashion that infringement has legal consequences. Going further has risks; for example, describing fair use merely as a "consumer right" can lead otherwise well-meaning individuals to infringe on content and face civil or criminal liabilities, because they only paid attention to the misleading disclaimer forced into the notice and acted in a way that wasn't covered under "fair use" as legally defined.
There is no question that in the Digital Age, consumers need a better understanding of both the rights of creators as well as the limits on those rights through fair use. Education is the right approach, and one to which the Copyright Alliance is dedicated. But asking the federal government to regulate free speech is not the best way to proceed. Now if FTC officials instead want to hold a public meeting on the significance of Barry Bonds' new home run record, they are of course welcome to do so under the law. I think I'll skip it, though.
Biography
Patrick Ross is executive director of the Copyright Alliance.
See more CNET content tagged:
language, work
order to enhance the cultural and intellectual life of the nation. It
is a privilege, i.e. a private law, that gives an advantage over
other forms of property (like patents.) A patent owner has to
sue; a copyright owner calls the cops.
Copyright is temporary (though getting less so in recent years)
and is circumscribed by law.
It does NOT say that the work is the person's property. It says
that privileges are granted for a time. The original idea was that
the public domain was to become richer. It was conceived as an
incentive to contribute to it.
Fair use is the right: freedom of expression. Ultimately, all the
intellectual property that ccorporations build their empires upon
will become free and part of the culture--as the founders
intended, and as is right.
Wrong on count 1 - Copyright is still mainly a civil law and is still dealt with more often through lawsuits than through criminal trials. Just like your right to your house is covered by both Criminal and Civil law (ie, someone who damages your house can be put in jail, sued, or both) copyright is also protected by civil and criminal law.
It does NOT say that the work is the person's property.
Wrong on count 2 - A copyright IS property. It can be bought, sold, and loaned like any other property. Because a copyright is inseparable from the work that it is attached to, the work is effectively the property as well.
It sounds one-sided only because his organization generally feels
we, the people, are just cattle to be herded along to the cash
register to deplete us of our cash.
Archie comics? You are ill-equipped to grasp polemic, so it isn't
written for you. Stick with what suits you.
Really, who paid you to write this crap? You realize that if you bought a copy of The Little Mermaid on DVD back in 1997 and it got scratched in 1999, you wouldn't have been able to have bought another copy for another 10 years until it was re-released?
If this isn't evidence enough that you as a consumer should have the right to make a backup copy of your media in case of loss or damage then I don't know what is. Having to wait 10 years to be able to buy another copy is insane. Although that's not the case across the board, there are a lot of DVDs and CDs that are released for a limited time and then that's it. I have a Starseeds CD that is pretty rare. If I lost that disc, it would take me months among months search ebay / half.com / amazon etc... hoping a copy might turn up for sell.
Second, and perhaps more importantly, Patrick failed to address the key issue: the assertion that the copyright warnings are inaccurate and misleading. Instead of affirming that they do, in fact, fully reflect copyright law, Patrick argument about Fair Use has no relationship to that question.
I am curious, however, where the Constitution provides citizens the right to use other citizen's property without compensation?
For example, redistribution and rebroadcasting.
Say I want to record a sporting event on a networked DVR that happens to be located in a den while I'm out of the house. I come back and wish to watch it on the nice 50 inch plasma TV I have set up in my living room.
Sorry, because this content is flagged as non-distributable and unsharable, you have to either watch the game on your less impressive den TV, or carry the DVR into your living room and set it up for viewing there.
Retarded.
It damages the enjoyment of that content because through no fault of my own, I'm being punished because some unsavory individuals might transfer that content to a computer and put it up for free distribution on the Internet (which, by the way, despite all the restrictions will happen anyway.)
What about reproduction?
Are you saying I can't rip the albums I buy onto my computer's hard drive, and transfer them onto my iPod because I didn't ask some executive at Columbia if it was okay to do so?
I suppose not, since in your Copyright Utopia (dystopia?) I would need to carry all 300+ albums I own with me.
I sure hope my car doesn't get stolen today.
So... Mr. Ross. While fair use might not be a "consumer right" and may still be considered a "defense" for doing what I want with content that I pay for, it still counts as common sense, and in my book, that counts as a necessity.
reporting on this site. I understand that this is an opinion piece,
but since it reads like the MPAA or RIAA wrote it I find it difficult
to credit.
My feeling? Fair Use rights should be extended the same way
that copyright longevity has been extended. If Disney wants to
keep their copyright on Mickey and extra 30-50 years, then I
should have expanded rights to use the character, almost a
pseudo public domain license. It won't happen, but that is what
would be fair, not the road we're on now where copyright
holders hold all the power and consumers have so little.
Peter Pan
Pinichio (sp)
Robin Hood
ALice in Wodnerland
Little Mermaid
Beauty and the Beast
Hercules
Tarzan
Do you think The Grimm Brothers Estate, Lewis Carrol Estate, Has Christen Anderson or mnother goose ever got a dime from Disney. I think not!!!
The RIAA, MPAA, the Disneys, and all the other IP owner-conglomerates, are trying (with much success) to redefine patent, trademark and copyright law away from the original intent, which has stood for over 200 years. They seek to maximize the value of "their" IP by getting longer terms of protection, broader interpretations of infringement, and more restrictive licensing. Is there any benefit to society if they succeed? No. But when did that argument ever stop the greedy?
Oh yes, no surprise here... it's getting harder for solo inventors to benefit from patent law. But easier than ever for corporations. The changes in the whole field of IP (patent, trademark, and copyright), is very driven by big money. Not society's interests. Not the little guys. Big money.
Because government is so bought and paid for these days, the judges who get appointed these days are more and more in the pocket of the IP conglomerates. And likewise the legislators who write and amend those laws. Quid quo pro. It is no surprise what direction that the law is headed these days -and the direction is quite different from the original one. The original intent was to maximize benefit to society. The original law was carefully balanced -NOT so weak as to benefit IP-thieves who would steal the innovations of those who dreamed them up, NOR so severe as to benefit innovators with "forever" terms. No, the idea was to strike a balance -that a limited term of protection is sufficient to spur innovation, but that letting an oligarchy arise that permanently profits from old IP doesn't help society, it just bleeds it.
The heirs of Winnie the Pooh think they should be rich because they had an ancestor who wrote a book. Why should they write anything of their own, or work a day in their lives? Isn't IP ownership forever?
The Founding Fathers though not. The RIAA represents a contrary view.
We don't need to clarify copy write disclaimers because nobody is going to get sued over certain infringements.
That is to say nobody will get sued or arrested for discussing a MLB game at the water cooler even though the disclaimer expressly forbids it. "Any accounts descriptions etc are expressly forbidden without the express written consent of MLB." OK it is not an exact quote but pretty close.
Ok nobody has ever been penalized for that but it seems from the disclaimer that we COULD be penalized for giving an account of the game to a co-worker.
Now for some history. The early American colonies as governed by England were subject to heavy taxes on Tea, sugar, and stamps among other things. While England was busy fighting wars with France and Spain all over the world, they did not have the time or inclination to enforce these rules. Well England crushed its enemies and eventually got around to enforcing laws and attempting to collect unreasonable taxes. Taxation without representation. Of course this angered the colonials to the point of war.
My point in the history lesson is that it is highly unreasonable to let a ridiculous law or rule or copy write disclaimer survive just because it is not enforced. If it is not enforced, remove it.
I could not agree more with the comment about the lecture on consumer responsibility with tempering it with a discussion of consumer rights.
Still others, including some uses within the home, may not be specifically designated fair use by a court, and may or may not qualify if put to the test, but are generally not the subject of legal challenges by a copyright owner.
Mr. Ross is saying in this one sentence that:
1. Watch what you do in your home we are watching you!
2. There is no way to know if you have a right to anything unless you get sued. Because as he said earlier there is no affirmative right.
3. Just because people have not historically generally been sued for what they do int their homes doesn't mean we won't come after you now.
Wow! I make a living in the the publishing industry and believe strongly in copyright but this is absurd, belligerent and threatening. And Ok it is a response to a lawsuit so maybe that is why it is so bellicose in tone. But Ross is actually threatening that a copyright holder can come after you for what you do in your home and implying that since he denies there is any such right as fair use any use should be assumed by the authorities to be infringing use.
Ross is wrong! For exactly the reason he says the other side is wrong. Use is rarely infringing unless it interferes with a right holders ability to commercialize their rights.
On another note I disagree with may of the comm enters who object to CNET posting this. Intellectual Property and Copyright are issues fundamental to our society and there are very important dialogs underway regarding how (if at all) current technology change them. The lawsuit, Ross's bizarre assertions and many more points of view will make much more interesting water cooler conversation than Barry Bonds.
I write my own music. I can disseminate and dipose of it as I see fit. Because you may purchase one of my tunes does not give you all of my rights - I retain the overwhelming balance/bundle. In other words - you are privileged to play my music because I say so, not because you have a right to.
The whole fair use debate is specious. It is designed to promote a culture of poaching and freeriding. Copyright holders should not be ashamed to defend against this freerider culture - they seek to take your fruits with recompense.
Taken to the extreme, who's going to want to produce original work if it can't be protected; if through expansive fair use "rights" a person who had little to do with your creation and risk can outright steal what you've sweated over?
The answer - no one. Not even Larry Lessig or Ed Balck.
Can I lend it to a friend to share my discovery?
Have you ever played a cover tune?
If you are a writer don't you sell your songs to musicians?
I feel for the talent in these turbulent times but killing off the record industry will be the best thing to ever happen to musicians and songwriters as well as their fans. It will eventually boil down to musicians playing for money and people paying to hear them. Live music is where the money should go.
People get to listen to your music because you say so?
No, dude. People get to listen to your music because they happen to like it.
Do you honestly intend to police everyone that listens to your music? If someone "unauthorized" happens to catch a few bars of a song from an adjacent car while stopped at a red light, are you going to prosecute them because they didn't pay you for the "privilege" to hear it?
And what about a point in tgrenier's comment?
Shouldn't you be happy if someone likes your music so much that they want to tell their friends about you?
There's really nothing you can do if someone provides a free copy of an album of yours, but haven't you thought that... if they like it enough... they'll be prompted to maybe buy the next album that comes after that? Buy merchandise? Purchase concert tickets?
If treating every fan like a criminal is "business as usual" for you, then maybe you really shouldn't be making music for people to listen to.
I've been an ASCAP member and proffessional musician for many years. This statement is reflective of the BS the music industry has been spewing for years. As soon as the consumer BUYS your product, you've inherently lost some control over the uses of the product. If the end-user has not used your product to make money, there (in my opinion) is no real damages.
As far as the notion that filesharing is the same as re-selling your product at a profit. I'm unsympathetic. The same bozos that got together and created the digital file formats we all use today are the same people running around suing people for using them for the purpose they were designed. MP3's were a compressed format designed to make file transfers smaller and easier to handle. CD's were made to be more durable and cheaper to manufacture. The record companies were quiet the whole time they were benefiting from selling cd's for a higher price than cassettes. The whole time they decraesed the manufacturing cost by over 400%. To this day, these same companies are manufacturing equipment that is designed to make copies. For instance, my DVD burner is made by Sony. Why hasn't this crap fired more people up? Instead we quibble about the wording in warnings that nobody reads or adheres to....
Obviously you missed the part where copyright is supposed to benefit society. Not benefit the creators and the corporations that hire them, something a lot of people have forgotten. The creator gets a limited period of time to profit from their work, and then it's supposed to enter public domain. And fair use is supposed to detail situations where copyrighted work can be used WITHOUT PERMISSION.
Seems that a lot of these bigwigs also forget that copyright, despite its name, is NOT A RIGHT. It is a privilege. One that can and should be taken away if someone begins to abuse the hell out of it.
Shill!
On the freeriding analogy- Mark Lemley has an interesting paper "Property, Intellectual Property, and Free Riding" that is well worth reading.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=582602
Seems like the Supremes would disagree with CNET's copyright propaganda.
You drive over my above rights then you deserve not to win in court.
IT'S AN EDITORIAL!!!
Stop ******** at CNet about "letting people like this write for you" and "opinion reporting." News outlets ALL use editorials to foment public discussion. CNet is allowed to do the same. Don't flame the publication because you disagree with the person that they gave equal time to! I don't agree with everything that every editorial writer writes for The Wall Street Journal -- that doesn't mean that I have to "turn elsewhere" for my news. That's childish and insular.
To borrow a phrase: attack the speaker, not the soapbox.
Fair use may not be in the Constitution, but it IS a matter of law - others in this forum have already pointed out the statutes. I don't know why people think something is not a "right" just because it is not in the Constitution. The Constitution is just a bunch of laws that can be changed to suit the whims of lawmakers - check out the 18th and 21st amendments regarding alcohol prohibition, if you need proof.
Anyway, when it comes to matters of FACT, having public discussion is fine, but I still think that Cnet has some level of responsibility to ensure that its writers are not giving out incorrect information.
I mean, they allow this guy, who OBVIOUSLY has an agenda (he is the "executive director of the Copyright Alliance", after all), to blatently obfuscate the matter of "right" vs. "defense". If nothing else, Cnet should at least be worried about maintaining an image of impartiality and do a better job of screening its writers to prevent this type of misuse.
Robert
It would be cool if C/Net were to post a link to a story taking the opposite position when they have an editorial involving a controversial subject.
socialism. Everything should be decided by the free market, not
government agents. Piracy only occurs because media
monopolies are fixing prices far above their free market value,
thus creating the free market incentive to pirate. Were prices for
media such as music and movies priced by the market they
would be so low that piracy would be to much trouble vs buying
the product. The artist and creators would do just as well,
probably better, but the ceo's would have to cut back. God
forbid!
So let's be real about this. Is America about free market or not?
If so then piracy is not on a right it is a necessity! LONG LIVE
THE PIRATES!
Wide scale illegal activity is simply a symptom of a market out of balance. No different than gangsters during the prohibition, once alcohol was legalized the dangerous activity subsided. If you want to solve the file sharing problem start selling songs for 10˘ each.
Hmmm... Lemme see. Here's the mindset you claim that pirates currently have: Prices are too high, so it's permissible to download it instead.
Hey, wait. The local Big Box Store is having a miraculous sale! Any album or movie only a penny a piece!!
The options now:
1) Get in car, drive to store, park, walk in, wait in line, walk out, drive home again.
2) Continue as in the past: download them for free overnight while asleep.
How many of today's pirates are likely to choose option #1? Which of these options is truly more "trouble?"
Piracy is when the rights of the content creator are ignored because someone likes the content but is too cheap to pay the one who spent the boatload of money to produce it in the first place. As dumb as those commercials are on the beginning of DVD's they are right. Piracy is theft.
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
A limited right to incentivize the creation of new work. Not a right to tell a citizen what they can or cannot do with a reproduction of that work once the Author or Inventor sells it to the citizen for thier private use.
Not a right to control new work in a way to restrict competition and to limit the ability of new authors and innovators to enter the market place.
Not a right to control work for an indefinate amount of time.
If copyright industry continues on the current path of influencing Congress to limit rights citizens will lose all rights in this domain.
The author fails to mention that authors borrow ideas and concepts from prior work and the broader society. No one creates new work in a vacuum devoid of societal influence. Once a work enters society by the simple virtue of it existing it causes some to borrow from it, and causes others to avoid creating similar works. Works that are identified as too close to the original are deemed copies and legal recourse is taken. For this reason it is critical that works reenter the public domain of society from which (in part) they came. This is the only way to limit the societal cost and penalty of over extending these rights.
Further the current copyright law will cause virtually every new work to exceed the life of virtually every citizen.
- Life of the author plus 70 years
- or 95 years from the first publication or 120 years from the date of its creation, whichever is less.
Therefore I fail to see of this duration passes the "limited times" clause.
- Heh, yeah
- by DaiMac September 6, 2007 4:50 PM PDT
- Yeah, I wasn't even thinking of that earlier. The most hilarious
- Like this Reply to this comment
-
Showing 1 of 3 pages (121 Comments)thing is that Disney even thinks it matters that much-people are
ripping off Mickey already, look at that (horrible, racist, garbage,
whatever adjectives people want to apply) Hamas show for
children, where originally it was a Mickey lookalike who was
telling the children about killing all the jews and death to Israel.
If it was public doman, Disney would still be the only ones with
decades worth of existing art materials and mulitmillion-dollar
animation suites, their version of Mickey would likely continue to
dominate the market, such as it is. Its hilarious, because its
mega-corporations who have benefitted from our capitalist
system who seem to now be afraid to let market forces work to
their natural conclusion with Intellectual Property.