[Infowarrior] - Industry: Fair use is not a consumer right

[Richard Forno]

Fair use is not a consumer right

By Patrick Ross
http://news.com.com/Fair+use+is+not+a+consumer+right/2010-1030_3-6205977.htm
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Story last modified Thu Sep 06 10:00:01 PDT 2007

The Computer and Communications Industry Association in August implored the
Federal Trade Commission in a filing to parse through language found in
copyright warnings appearing before movies, television sporting events and
other places.

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.
These warnings do exactly what they're meant to do--notify consumers in a
succinct fashion that infringement has legal consequences.

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.