August 27, 2007 4:00 AM PDT
Perspective: Separating fact from fiction on digital copyrightsSee all Perspectives
At the very least, we all know that when the warning signs appear, what follows are a few very-important-sounding sentences noting the dire consequences of unauthorized use of what we're about to see. We don't necessarily understand it, but we know it's bad. And if we were to believe what they tell us, discussing Barry Bonds' homeruns around the water cooler would put us all in jail.
Did it ever occur to you that, in many cases, these serious, ubiquitous warnings may not actually be accurate?
Perhaps they've just been around so long that they've been accepted as fact, but in many cases, as very recently pointed out by the Computer and Communications Industry Association, they are at best misleading and, at worst, flat-out wrong.
The group filed a formal complaint with the Federal Trade Commission earlier this month against some of the worst offenders--among them, NBC Universal, Major League Baseball and the National Football League--alleging that the statements used by these corporations often include gross misrepresentations of federal law and characterize as unlawful acts that are explicitly permitted by law. NBC Universal immediately characterized the complaint as "frivolous," which pretty much sums up how the company feels about the rights of its consumers.
Consumer rights in the digital age are not frivolous. We have them, we should protect them, and U.S. copyright law guarantees them. Consumers may copy, distribute, perform and transmit portions of a publication or work provided that such use constitutes "fair use," which is a legal way of saying that we can enjoy limited and nonlicensed use of copyrighted material without requiring permission from the rights holder.
Fair use is not merely a nice concept--it is a federal law based on free speech rights under the First Amendment and is a cornerstone of the creativity and innovation that is a hallmark of this country.
However, with the advent of the digital age, fair use has gone missing. Warnings attached to movies, sports broadcasts and other media often provide wildly misleading information about consumer rights under copyright law. For example, warnings on many Universal DVDs state, in part, that "any unauthorized exhibition, distribution or copying of this film or any part thereof (including soundtrack) is an infringement of the relevant copyright and will subject the infringer to severe civil and criminal penalties."
This statement is simply untrue--the federal copyright statutes specifically allow unauthorized reproduction for criticism, commentary and other purposes. Just recently, the NFL threatened the media by withholding press credentials for any organization that showed more than 45 seconds of a game.
This is not the way forward. We should not permit rights holders to use copyright law to create new powers for themselves. Even as we urge consumers to respect the law--and we should--large copyright owners have the same obligation.
Scaring their customers is not educating them. Misleading and threatening them, at the end of the day, hurts everyone, including the copyright holders themselves. Copyright law was never intended to serve as a big stick for the rights holder to wield against the freedom of information and ideas. We hope the FTC agrees.
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