Perspective: Separating fact from fiction on digital copyrights

I'll bet you can recite most of the copyright warnings that appear on your screen when you pop in a DVD, or at the end of football game, can't you?

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.

Consumer rights in the digital age are not frivolous.

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.

Biography
Maura Corbett is a partner at Qorvis Communications and a senior adviser to the Digital Freedom Campaign.

More Perspectives

[justice007]

Pendulum swing

The copyright law was a series of compromises by congress. Lately, the pendulum has swung too far in favor of rights holders (well, "We the people" gave them the rights in the first place), so it is good to hear voices that don't want the "fair use rights" of the citizens trampled on - and thank you for the article and shedding some light on the issue for the more general populace.

There was another article in the last few days that quoted Microsoft as saying (paraphrased) "We are not Google and proud of it." It is very interesting to note that Microsoft writes its software heavily slanting the "pendulum swing" in favor of rights holders and Google and Apple catering more to the desires of the citizenry by catering to the "fair use" part of the law. This is not a "loophole in the law" as Hollywood Microsoft and its friends propaganda implies. It is the basis for the law. The DRM's glaring failure currently being played out, and the lack of uptake of Vista because of the perception (based on some reality) that it restricts users' rights, should be lessons for the future of companies and rights holders.

If we look over history of science and technology, the same thing is developed independently in different parts of the world at approximately the same time. Ideas are built on other ideas, and when the more fundamental ideas have been articulated, then the time has come for the new ideas propounded by its authors that "stand on the shoulders of giants" to see further. This principle is (and should be) a cornerstone of any apportionment of rights between the originator and the rest of society.



[http://For general education on copyright, the MIT OpenCourseware has a series of interesting and entertaining lectures - and there are many other web sources.|http://For general education on copyright, the MIT OpenCourseware has a series of interesting and entertaining lectures - and there are many other web sources.]

[ajhoughton]

Swung too far?

> Lately, the pendulum has swung too far in favor of rights
holders

In legal terms, perhaps, but in actual, practical terms, the
legality makes very little difference to the behaviour of a lot of
people on the 'Net.

Of course, it would help if the general public had the slightest
respect for the rights of copyright holders in the first place. But
the public doesn't, and as a result, some copyright holders lobby
politicians to make the laws tougher (though usually not in a
particularly useful way).

It's no surprise that this is happening; I've been saying for ages
that people simply have to stop pirating things because it's
driving the copyright situation (especially in the U.S.) to
extremes.

[gggg sssss]

Apple? Shurley you jest

Not sure why you added them. Still seem to be very restricted in running the OSX disk I paid for on my Gateway PC

[DevTop]

Copyrights have value

Copyright is an intellectual property law that protects original works of authorship including literary works. Music, movies, novels and blogs are protected by copyright the moment you produce it in tangible form on paper or computer.

http://www.devtopics.com/splogs-spam-blogs-and-stolen-content/

[kxmmxk]

Yeah, and .... ?

What's your point!!??

You did actually read the article, or are you just complaining based on the title. I assume you are complaining since you didn't really say anything about the topic of the article.

No one is saying anything against copyright. The article is about people mis-using and mis-representing copyrights versus user rights. It's a valid, and very legal, approach.

If you are in favor of copyrights, surely you want them to be represented in the correct light? Surely you want the rights of everyone to be respected?

Anyone that comes down with a heavy hand ends up loosing their advantage over time. The more one group abuses their advantage, the more likely they are to loose it in the end.

[aureolin]

Backlash

The real problem with companies overstating their copyrights is that the current, building, consumer backlash will almost certainly result in them having LESS rights than before.

Greediness is one of those famous "foot shaped guns" we've all heard about. ;-)

Steve G.

[VirtualDavid]

You missed the point

RE: "...federal copyright statutes specifically allow unauthorized reproduction for criticism, commentary and other purposes."

Well then, that would make it AUTHORIZED - not 'unauthorized'; correct?

[Jeffrey Meyer]

no, not really

It is permitted by the law, even if it has not been authorized by the
copyright holder.

[lentilpilaf]

no she didnt

Unauthorized means just that, you can do it without the company having to authorize you to do it. It's legal to do these things without authorization, thus unauthorized.

[Alessandro Machi]

The warning is ridiculous

Recounting an event does not make one a criminal, in fact it is
one of the best ways to ensure the honesty and integrity of the
event that is being recounted at a later date.

I would suggest "falsely" recounting an event at a later date is a
crime and something the courts would not allow (unless it is
blatant satire) whereas truthfully recounting an event (and
assuming no fee is being charged) is something that the courts
would have to be in favor of.

Ironically, the above could apply to sporting events but perhaps
not to movies or television because the repeater could be
spoiling the story for those who have not seen it yet.

[SpiritMatter]

Truth Cannot Be Owned

Truth as contained in knowledge and understanding should never be allowed to be "owned" by anyone. Can you imagine the results if Christian churches were allowed to copyright their doctrines and no other individual or church could communicate or teach a doctrinal "truth" without permission from the individual or church that held the copyright? It would not be good!

[TomPhilo]

Right to Profit

The original function of "copyright" is literally giving exclusive RIGHT to reproduce work - copy - to a publisher - not to the author. It has since been extended to include authors as having rights on how their work is used. It was a commercial arbitrary restriction imposed on printers by printers so they would have a monopoly to sell and make a profit from what an author created.
These same monopolists have since ensured that a single copyright includes any an all types of delivery and they have exclusive "rights" to profit from them from a minimum of 75 to 105 years after it was created (actually, it is life of author PLUS 75 years, so you could have works copyrighted for up to 191 years based on the oldest person alive; corps get the 105 year max.)
"Fair Use" allows for editorial comments using snippets as an example without the need to get prior permission. The distinction is editorial. Using NFL video as part of a newscast is not editorial - that is commercial and would fall into paying to use based on what I understand current law states - it is using other people's product for "your" commercial gain. The disclaimers NFL puts out is for that reason. If you used a clip to show people how not to tackle or show bad sportsman like behavior as part of a comment on the sport then it would not have to be paid for, but if you used it as part of a training film then it WOULD since it is for your commercial (winning) gain.
Most consumers find it annoying, and with DRM going everywhere people will start finding more reasons to circumvent it - or just stop buying products since the restrictions - and limited ability to use it - will cause them grief. Actually, with DRM when you buy it becomes a PERPECTUAL restrictions since there is NO WAY to remove the DRM rules once copyright runs out - you must then buy AGAIN a DRM free copy. But technically, they could STILL put DRM onto it since the delivery medium IS copyrightable - or compilation of FREE works is copyrightable as it is now a collection! Self perpetuating.

If you want to change it propose that Patents adhere to the SAME time limits as copyrights - after all they are really two of the same. Patents were conceived as the physical manifestation of a thought process and copyright was the written word reproduced. The arguement has gone that it is so good to have written works locked - restricted - for 75+ years then would not patents also be "enhanced" by having them also restricted for the same amount of time?

Tom Philo
http://www.taphilo.com

[juser_bogus]

Fair use "allows" for more than that

anyway, if you publish/sell anything, say newspapers. Writing an editorial is for "your" commercial gain.

[t8]

Fair use is authorized, surely?

<quote>"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."</quote>

I don't agree. Unauthorized is the keyword here. Fair use is authorized, surely?

[TomPhilo]

Fair Use Is NOT an Illegal Use

That is one of the points of the story - they use words in the copyright warning that imply ANY use is illegal - which is not true.

The fair use clause allows limited use.

The corporations specifically paint the total ban of any use of anything in warnings expecting that most people do not know that the "Fair Use" clause exists and thus scare them from using any item from there legally. I suspect that they hope people would contact them and pay exhoribant license fees to use stuff that normally falls into the fair use category.

I've run into companies that charge $85 a year for a single graphic to be used on a web site and the whole book was only $50. I just manually redrew the graphic and used mine thereby avoiding the copyright. So instead of using the graphic and pointing people to get the book I just created my own and did not mention the book at all. (Not to mention it took me two months to track down the publisher, find the address, make contact, and get to the person who could make a decision before I got the price back. Totally unacceptable timeline to locate what trying to do legally.)

They lose out in this case. Multiple this out a few hundred thousand times for all the items they have rights to and the companies wonder why they are not selling more of X.

[thinkermonkey]

Unfair Copyright Claims

MGM has sent a notice to my wife that some of her work on YouTube infringes on their copyright - although she was not informed of which works owned by MGM were infringed. They did this without having to face perjury charges. When responding to the complaint, my wife does so under the shadow of facing perjury charges. This the DMCA is unbalanced in this respect. I worked with her, did some of the construction and design of the set and also played bass, guitar and keyboard on some of the work which I know I own. There should be criminal and civil penalties for filing false copyright claims just as there are for infringing on a copyright. I think $500.00 to $20,000.00 paid to both the state and the person whom the false claim was made against is sufficient.

[richiepear]

Quantifying Fair Use is possible and necessary

Much of the emotion can be taken out of this discussion if rights holders started taking advantage of the technology that allows them to quantify fair use (Disclosure - I work for Attributor which is one of the companies providing this technology)

Here are the 4 factors to be considered in considering fair use:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Where technology can/will help . ..

#1 - Detectable- if the site is commercial or not. You can also
#2 - Subjective, but pretty intuitive and lots of precedent here
#3 - Detectable - % re-used or number of words/frames copied can be calculated.
#4 - Detectable - requires some assumptions, but there is publicly available web traffic and CPM data, not to mention research quantifying the SEO impact of being bumped down in organic search results as a result of splogger or other unauthorized use


Rights holders need an objective means to gain contextual understanding of how and where their content (not just video but text and images too) is being re-used . . . this will eliminate much of the distrust and pave the way for negotiated outcomes instead of litigated ones . . .

[ajhoughton]

Copyright not necessary, and that's a bad thing

Of course, this article completely neglects the fact that it's
entirely possible to distribute material without using copyright
law, in which case the terms of its distribution are merely a
contractual matter between two parties.

Copyright legislation, INCLUDING FAIR USE only applies where
the originator of the material is actually claiming copyright over
it. If they don't do that, YOU DON'T GET FAIR USE. Nor does the
material ever need to enter the public domain (which is the main
motivation behind providing copyright legislation in the first
place).

The problem is that the widespread disregard for copyright on
the 'Net is creating a situation where, for many people, copyright
is effectively worthless (or very nearly so). There is a very real
danger that people who generate work that is currently
protected by copyright will decide to distribute it under some
other, contractual, terms instead, in which case they are free to
set them as they see fit.

[TomPhilo]

Auto-Copyrighted by Law

Good idea, problem is that Congress changed the law to conform to the EU Berne Convention - thus at the time of creation by anyone / company (for hire) it is automatically Ccopyrighted.

The © symbol or Copyright word justs gives it more legal standing for penalties than leaving it out (lots more penalties - more like "I warned you!" before someone uses it. So you get to get more money from the person if they use it completely without asking.)

Just like on some web sites that once posted anything you no longer own the work - the site does (You Tube actually has that in their terms of use, you have assigned all rights of profit ofhatever you post them and you are not entitited to any monetary that they may get from you posting it. "You retain the copyright for your content, but by submitting it to YouTube you are giving YouTube the right to use the material in any form that it may desire. This right will terminate only when you remove the content from YouTube website. ")

Other sites actually own the copyright once you post to them.

You would have to epressly state that it is public domain and can be used without copyright restrictions in order to avoid copyright infringement. And if someone posts something to a web site - who then owns it - that web site could then sue OTHERS for infringing on THEIR work now. So that disclaimer would have to be on anything that is posted onto the web to avoid that claim on by 3rd party sites.

Tom Philo
http://www.taphilo.com

[juser_bogus]

Well said

people need to understand that copyright is not a god given right... it's is assigned by government for the betterment of society and the economy. It is NOT given specifically for the holder to gain benefits such as profit. guaranteeing profit is just used as a means to the betterment of the society and economy.... that is a pretty small distinction but it is a VERY important one because once you've given the copyright hold to much control it will actually lead to less innovation and dissemination of ideas.

[the-logical-one]

Way to stop to stupidity of HUGE COMPANIES

If one wishes to watch a "legally protected" (original, legal disc) movie w/ friends, the person should contact the copyright holder (threatening org) to obtain permission in writing (of course w/ a TOLL FREE #). Maybe if these Corps are "overwhelmed (calls & postage)" allowing "fair use (having a friend watch a my original, uncopied movie who didn't purchase it)", they will again allow "fair use (copy, backup, viewing)" for personal use. The DCMA is so one sided, it MUST be eliminated/revised.
Make a toll free call for OUR RIGHTS (ie. harass the Corps until they accept "fair use" rights).

[Jim Harmon]

"Fair Use" has been written out of the law

The DMCA was constructed in such a way as to "curb the abuse of the fair use loophole." (My paraphrasing of the words of others)

Anything in print (on paper), or recorded or transmitted via analog means is covered by the "old" copyright laws and "fair use" is allowed.

However, anything recorded or transmitted via digital technology falls under the provisions of DMCA - which does NOT permit what is often referred to as "fair use." For example, making a back-up of the DVD you buy is actually illegal.

[Shel D.]

Ever meet anyone who let those warnings stop them?

I haven't.

[lentilpilaf]

yeah

haha so true...

[Ray Beckerman]

Excellent article; copy of FTC complaint

Excellent article. Here's a link to the excellent complaint filed with the FTC by the CCIA.