Copyright Alliance Says Fair Use Not a Consumer Right 504
KingSkippus writes "In response to a complaint to the FCC filed by the Computer and Communications Industry Association (CCIA) to change copyright warnings before movies and sporting events, Executive Director Patrick Ross of the Copyright Alliance tells us in an editorial that 'fair use is not a consumer right.' The Copyright Alliance is backed by such heavy-hitters as the MPAA, RIAA, Disney, Business Software Alliance, and perhaps most interestingly, Microsoft, who is also backing the CCIA's complaint."
Depends on what you mean by "right". (Score:5, Informative)
Copyright Progress (Score:5, Informative)
Congress can make an exception to protecting our rights to free expression (like copying someone else's expression) where economics requires exclusivity of some expressions to promote progress in science and useful arts. But only where necessary for that promotion of progress, and only for limited times - and only to authors and inventors. Not when economics doesn't require the exemption. Not for unlimited (or so long that the limits are effectively meaningless, or renewable) times. And not to record labels, which are neither authors nor inventors.
The "fair use" isn't some exception to copyright. It's the basic right, to free expression. In recognition of its nonthreat to progress, the exclusivity, the artificial monopoly that Congress can create, doesn't apply to that free expression.
The whole copyright exclusivity is obsolete. There's a case for very short times for exclusive exploitation, different lengths for different media, before the content becomes folklore. But these Copyright Alliance creeps are just thieves. Using our government against us. Trashing the First Amendment we use to get our government to protect us. And exploiting beyond any defensible reason their license to mint money that they find in Article I.8.
Let's take them up on their offer to start over. And strip down these artificial government monopolies to actually promote science and the useful arts. 17 years for books and songs, shorter for the rest, maybe a day for news, maybe 15 minutes for financial news. That's progress.
The article is oversimplified and confusing (Score:5, Informative)
The argument that Ross appears to make is a non-sequitur. He says that fair use is not a consumer right because it is an affirmative defense to copyright infringement. There's no connection between the two. For those who don't know, an "affirmative defense" is a defense that does negate an essential element of the charge. For example, if you are charged with murder, one defense that you could offer is the prosecution hasn't demonstrated that you were the one who committed the murder. Another defense would be that the prosecution has not shown that a homicide occurred (if, say, there is no body). These are non-affirmative defenses because all the defense has to do is to argue that the prosecution has failed to meet some part of its burden. Another defense to a murder charge is self-defense. Self-defense is an affirmative defense. The defendant admits that a homicide occurred, that he or she did it, etc., but argues that he or she is nonetheless not legally responsible.
In the case of copyright infringement, civil or criminal, fair use is an affirmative defense because the defendant admits the elements. He or she says: "Yes, I copied material whose copyright does not belong to me", which is the essence of copyright infringement, but its okay because the use was of a type that the law acknowledges as acceptable, just as self-defense is an acceptable reason for killing someone.
There is no reason to suppose that there should be a connection between whether a defense is affirmative or ordinary and whether it is a right. For example, surely self-defense is a right, but it is nonetheless an affirmative, not ordinary, defense. So the mere fact that fair use is an affirmative defense does not show, as Ross seems to think, that fair use is not a right.
The possible grain of truth in what he says is that the fact that fair use is a defense to copyright infringement does not mean that it is a right whose violation is actionable. Statements that describe copyright infringment in absolute terms, without mentioning fair use, are inaccurate, and possibly constitute deceptive advertising, but whether consumers have a legal right to fair use that makes technical measures, such as DRM, that interfere with fair use, actionable, is unclear. There is a colorable argument that there is a fair use right in this sense, which is what the plaintiffs are arguing, but it is also true that this has not been established in court.
So, insofar as Ross is claiming that there is some sort of connection between the kind of defense provided by fair use and whether it is a right, he is wrong, but insofar as he is just claiming that the provision of fair use as a defense does not make it a right, what he says is true. I personally think that fair use is a right, for First Amendment reasons, but this right flows from the First Amendment and not from the fair use provisions of the copyright statutes.
Re:Pardon me? (Score:4, Informative)
Now what makes all this a farce is that it is virtually impossible to create an all but the simplest copyrighted work without making use of works copyrighted by others.
Slightly off-topic rant: One of the examples used in favor of extending the term of copyright was to allow Harold Loyd's granddaughter(?) to earn some money by re-releasing his movies. At the same time, Hollyweird basically told the widow of the captain of the boat that inspired "The Perfect Storm" that she was SOL in regards to mis-portrayal of her husband in the movie.
Re:Depends on what you mean by "right". (Score:4, Informative)
Re:Depends on what you mean by "right". (Score:4, Informative)
Really? I bed to differ. Some thought control methods that come immediately to mind :
http://en.wikipedia.org/wiki/Propaganda [wikipedia.org]
http://en.wikipedia.org/wiki/Hypnotism [wikipedia.org]
and more generally :
http://en.wikipedia.org/wiki/Thought_control [wikipedia.org]
wrt how well they work on populations, YMMV, but at least propaganda has been used extensively throughout history, in war and peace time.
Re:Depends on what you mean by "right". (Score:5, Informative)
Many of the authors who deal with Baen even give them away, either through the website or with CDs distributed on first run hardcovers. The CDs while copyrighted are freely redistributable and are all found at BaenCD. [thefifthimperium.com]
Baen ebooks: no DRM (Score:5, Informative)
I am a very satisfied customer of Baen ebooks. Baen does it right.
You can download in any or all of five different formats: HTML, RTF, Palm ebook, Rocket ebook, or Microsoft ebook. The book is not under any sort of DRM. They have all their new releases, not just some weird out of print titles. And they have a deal where you can buy 5 or 6 books at a time for $15!
That latter deal they call "Webscriptions". If you buy a really new book, the webscription might include only part of the book. Over time, more of the book is revealed, and finally the whole book is available. But as long as you are buying a Webscription monthly selection that is old enough (which is most of them) you get all the books at once.
And, I believe they are still doing the deal where you buy a monthly Webscription selection and you can give a Webscription selection to a friend. You do this by providing them with the friend's email address, so check with the friend to make sure he or she is cool with giving out the email address. (I made a test email account on my server, and gifted it with a monthly selection; it has never received any spam, so I believe Baen when they say they do not give out your email address to spammers.)
I have spent over $300 at Baen, and my collection of Baen ebooks is up to 200 books! That includes titles from the "free library". Yes, Baen also just plain gives away some ebooks.
Baen free library:
http://www.baen.com/library/ [baen.com]
ebooks, and monthly Webscription selections:
http://www.webscription.net/ [webscription.net]
Here are a few free ebooks to get you going. These are some of my favorites; perhaps you might like them too.
The best of Keith Laumer's classic "Retief" stories!
http://www.webscription.net/pc-347-1-retief.aspx [webscription.net]
A book in the style of the old "pulp" novels, with magic and mad science thrown in.
http://www.webscription.net/pc-110-1-doc-sidhe.as
Humans stranded on a planet with large intelligent large molluscs. The humans need help just to digest the local food, but they can do some things the locals cannot, also.
http://www.webscription.net/pc-287-1-mother-of-de
The first of the "Honor Harrington" series, and my favorite of them.
http://www.webscription.net/pc-304-1-on-basilisk-
I hope you will enjoy reading some of these ebooks!
steveha
Re:Actually fine... (Score:5, Informative)
Copyrights, patents etc. are essentially a deal between the public and companies/innovaters to provide a safer way of releasing their inventions, creations etc. to public without wasting too much time on fighting off copycats. In return, the public gets a cheaper/better deal as well. Why on earth should the public provide special protection support if they are not getting much in return? Why shouldn't the burden of protecting their idea, be on the corporations instead? Let *them* figure out how to keep their idea a secret and still make a much larger profit without worrying about copycat competitors.
If the public sees no direct benefits at all from this deal, without having to pay through the nose for all and any usage, why on earth would we be interest in helping such corporations retain their profit? Let *them* find their own solutions for protecting their idea. why should courts and governments funded by *public* tax money, help out these corporations?
It is stupid to think that without patents, no progress will happen. Steam engine and Railways did get invented. USA and many other countries stole a huge amount of such industrial inventions from Britain and used it without paying any royalties, no? And yet even in such insecure environment, companies still were doing business. Such inventors were merely making lesser profits and going to greater lengths to keep their secrets.
Corporates are just trying to force a lop-sided deal on the public. And public need not keep their end of the bargain either then.
Whether it is a right is irrelevant (Score:5, Informative)
Re:Actually fine... (Score:5, Informative)
And copyright protection is not a producer right either then.
There are some issues you should likely become familiar with.
Let me preface this by saying I once saw a discussion of the fair use issue by a practicing IP lawyer on a photography usenet newsgroup. No, that doesn't make him evil -- he claims that most IP action is not the **AA stuff we hear so much about. Some 95% of the practice is dealing with B2B claims of infringement, not corps vs. individuals. He also said the goal is generally to come to a settlement between businesses (cross-licensing, etc.) instead of dragging cases before judges. FWIW, he also said he's not fabulously wealthy and has to work hard to keep up with a moderate-sized mortgage. Over some time, I found his input to be useful, non-hysterical and generally reasonable.
With that background in mind, his analysis follows.
Fair use is not actually a defined right. It is, instead, an"affirmative defense" against a charge of copyright violation. That's a difference, however subtle. That is to say, IF you are charged with violation, you may assert FU as a defense.
An analogous case _might be_ if you're being chased by someone with a gun and if you run through my front yard and trample some extremely valuable shrubs and flowers, you could possibly (if I were a jerk and had a compliant cop friend to push the issue) be charged with trespass and destruction of property. You might then assert, as an affirmative defense, that your life had been in danger. Though you might eventually have to reimburse me for my loss, the charge of trespass and property destruction would be dismissed.
From wikipedia http://en.wikipedia.org/wiki/Affirmative_defense [wikipedia.org]
An affirmative defense is a category of defense used in litigation between private parties in common law jurisdictions, or, more familiarly, a type of defense raised in criminal law by the defendant. Affirmative defenses operate to limit or excuse or avoid a defendant's criminal culpability or civil liability, even if the factual allegations of plaintiff's claim are admitted or proven.
Hence, while not the same as a right, an affirmative defense can mitigate or remove a great deal of liability.
Standard disclaimers apply to anything I have said above.
Comment removed (Score:3, Informative)
Re:Depends on what you mean by "right". (Score:3, Informative)
Not everything regarding a work is the subject of copyright. There is no right of a copyright holder to control who watches a work, for example. OTOH, there is a right to control the making of copies of the work.
So when he records the movie, that is infringing, unless it is, say, fair use. When he watches the recording, that is never infringing, regardless of whether the recording was even lawfully made or not. Thus, fair use doesn't care how many times he's going to watch the movie. It only cares whether the recording of the work was fair, given the circumstances. Maybe it is, maybe it isn't; it depends.
So there's no 'watch once only' rule in time shifting or in other forms of fair use, such as space shifting.
Re:Depends on what you mean by "right". (Score:3, Informative)
I started back some years ago when I bought (geek-purchase, not any real need) a Rocket eBook reader. Baen's authors were ones I'd been reading for a while, but it turns out they supported the format. I've been buying from them ever since.
Not only is there no DRM, but they offer the books in HTML, RTF, Rocket format and
They actually go out of their way to make it easy for the customer to read the books, they do the exact OPPOSITE of what most other eBook publishers and distributors do. And the best of all is that there are dozens of books they offer for free - in their entirety! Try before you buy indeed!
You still don't understand (Score:5, Informative)
Since copyright actually comes from the days of books and newspapers, get this: you never "licensed" a book, except if you wanted to republish it yourself. Otherwise, if you walk into a book store and buy one, that's it: you bought that book. (Or rather, a copy thereof.)
The "license" bullshit comes from software, and was based on the following weasel reasoning: to use a program, you have to make a copy to RAM. Since you're making a copy, you need a license from the copyright holder. You need their permission to make copies. You know, Copyright.
Re-read that paragraph, because that reasoning was the sole and only reason for software "end-user licenses". And, again, it never existed for anything else before: you don't get an end-user license on a book. And it's especially funny since, AFAIK:
A) Even in the US copyright law, that loophole has already been closed. So, regardless of what MS tries to tell you, you _bought_ a copy of their software, you have the same rights as if you had bought a book.
You _would_ need a license, if you wanted to press your own Vista CDs and sell them, or maybe make some derivative works based on it. Dunno, pack it together with your own crapware or themese and sell it. You don't need a license as Joe Average who just bought a packaged copy and installs it on his own home computer.
It's already a disturbing trend that a corporation can try to snow you over several pages that they can override your consumer rights... and people actually believe it. So then, it's no surprise that:
B) I now see them trying to expand this to stuff which didn't have even that bullshit excuse in the first place. To play a CD, you never needed to make a copy in any form or shape. A typical CD player never reads more than maybe a second or two ahead, at any given time.
And, oh, since you seem obsessed by that car sale:
C) Copyright never applied to stuff like cars, since you seem obsessed by that car sale. Consumer rights, however, did. There _have_ been manufacturers who tried stipulating that you don't have this or that right (e.g., that you're a criminal if you repair it yourself), and it's already been ruled even in the USA that they can't do that. You _are_ legally allowed to repair your own car, whether the manufacturer likes it or not.
You may still void the warranty if you take your engine apart. You may get extra conditions if you have to give that car back, i.e., it's a lease or rental. But a sale? A sale is final. It's yours now. It's your legal right to do whatever you damn please with it, as far as the manufacturer is concerned.
Even for rentals or leasing, it has already been ruled even in the USA that certain clauses don't belong there. Stipulating that you can't wreck it is OK. Most other stuff is not. Even if it's a contract, stuff that a reasonable person wouldn't expect in there, or wouldn't see a reason why it would be needed in there, is legally null and void even in the USA. E.g., if I had a rent-a-car shop and snuck in the fine print "I just adopted your firstborn", that clause would get thrown out of court if I tried to enforce it. It's not the kind of payment a reasonable person would expect in a contract to rent a car.
Also, a contract doesn't override the laws in any part of the world. E.g., I can't put in a contract that you're now my slave, because slavery has been outlawed a long time ago. Well, the same applies to copyright law (which _does_ include that fair use clause) and consumer rights laws. _Regardless_ of what a contract says, it can't take away your legal rights.
Also, the idea of a contract is, or at least used to be, something that has been explicitly agreed upon and signed in advance. It's (or used to be) also expected that if any point is even borderline controversial, then it would have been explicitly brought up and dis
Re:Depends on what you mean by "right". (Score:2, Informative)
That's not quite right. Before the DMCA came about, there was this beautiful concept known as "First Sale Doctrine". It arose as a result of book publishers trying to treat book sales as if they were licensing, thereby allowing them to stipulate the use of the sold books. But, then a court came along and recognized there was a fundamental right that comes before the law of copyright; and while the words were never spelled out in the Constitution, it was the case copyright was created to engage in control of copying only. Attempts by copyright holders to go beyond this, for whatever reason, would therefore be invalid because it went against the strict purpose outlined in the Constitution.
Copyright holders, however, aren't a one trick pony. And over the years, they tried to engage the law to grant them other powers, such as limiting the introduction of VCRs (because they'd interfere with the movie theater business model); or, to create a game player designed to only accept games if they included a trivial copyrighted work (to limit who could publish on the game player). In the end, the courts recognized that, again, copyright is there to cover copying, not as an excuse to maintain a business model or to create a monopoly of one's own design.
But, that all changed with the introduction of the DMCA. The DMCA is so carefully worded to seemingly allow all those exceptions one would expect in a valid copyright law. But, the DMCA was written to crush the economy that would allow for legal circumvention of "copy protection schemes". But, cases such as Sega v. Accolade have already shown that "copy protection schemes" are inherently legally circumventable even if such would seemingly violate copyright. The real problem is, the courts never went that further step as they did with "First Sale Doctrine": they didn't make illegal "copy protection" systems.
What does all this mean? Well, in short, obfuscation to access a copyrighted work are, on their face, legally dubious if not illegal. There simply hasn't been a court case involving the DMCA trying to push this idea to strike down the DMCA. The whole point of the clause in the Constitution that allows copyright was to unobfuscate and unhide the embodied ideas and techniques of artists and scientists, at the cost to the public of more limited use of those embodied ideas and techniques for a time. If copyright holders could legally obfuscate a work forever, then the public would receive nothing from copyright law. And clearly that's unconstitutional.
Of course, if all that fails, there's always going the more direct approach and having Congress undo copyright.
Re:Actually fine... (Score:4, Informative)
So the NFL [baseball, olympic, ...] claim to own reporting of their events is specifically illegal in the US, according to the original Supreme Court decision.
Re:You still don't understand (Score:4, Informative)
You do not have to accept the licence to use the program, even although such use requires the making of a copy, because you already have an implicit right to use your own property for its stated purpose -- precisely because it is your property.