Fair Use is Not a Constitutional Right

jmichaelg writes: "Ed Stroligo at overclockers.com has written an article on the fair-use provision of the 1976 copyright law. He goes into some depth on the difference between a constitutional right vs. a legal right as well as covers the Betamax, Napster and Rio cases. It's a well thought out article and definitely worth the read."

Comments

Umm, no, fair use is a constitutional right.

[anthony_dipierro]

The fair use provisions of the 1976 copyright law are based on supreme court rulings made before 1976. Fair use is a constitutional right due to both the first ammendment and the tenth ammendment (when you consider that congress has the power only to pass copyright law in order "To promote the progress of science and useful arts"). An important supreme court case on this issue, Eldred v. Ashcroft, is coming up. This case should directly answer the question of whether or not congress has the power to enact copyright law which does not promote the progress of science as well as whether or not copyright law is "categorically immune from challenge under the First Amendment", but the current precedent is that they do not, and they are not.

Re:Umm, no, fair use is a constitutional right.

[anthony_dipierro]

See also this excellent writeup.

As mentioned in the article, the doctrine of fair use came about originally through the courts, and only later was codified in U.S. law. If fair use were only a defense to infringement as defined by the law, and not a constitutional right, then we would expect the reverse: that fair use would have been created first by Congress, and only later recognized by the courts. But this is not what happened.

Not to be picky, but...

[DirtyCowboy]

I think what he means by "legal" rights versus constitutional rights is really a matter of "statutory" versus constitutional rights. The concept of legal rights encompasses both.

The fundamental concept of the article is correct. It does not, however, go far enough. While copyright is discussed/provided for in the Constitution; the extent of the "right" (i.e., what exactly the right is) is a product solely of statutes (here, the 1976 Copyright Act).

Re:Not to be picky, but...

[Anonymous Coward]

While copyright is discussed/provided for in the Constitution; the extent of the "right" (i.e., what exactly the right is) is a product solely of statutes (here, the 1976 Copyright Act).

Nope. See Folsom v. Marsh, 1841

Re:Not to be picky, but...

[Anonymous Coward]

CAMPBELL v. ACUFF-ROSE MUSIC, INC.

From the infancy of copyright [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994) , 5] protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, "[t]o promote the Progress of Science and useful Arts. . . ." U.S. Const., Art. I, 8, cl. 8. 5 For as Justice Story explained, "[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before." Emerson v. Davies, 8 F.Cas. 615, 619 (No. 4,436) (CCD Mass. 1845). Similarly, Lord Ellenborough expressed the inherent tension in the need simultaneously to protect copyrighted material and to allow others to build upon it when he wrote, "while I shall think myself bound to secure every man in the enjoyment of his copyright, one must not put manacles upon science." Carey v. Kearsley, 4 Esp. 168, 170, 170 Eng.Rep. 679, 681 (K.B. 1803). In copyright cases brought under the Statute of Anne of 1710, 6 English courts held that in some instances "fair abridgements" would not infringe an author's rights, see W. Patry, The Fair Use Privilege in Copyright Law 6-17 (1985) (hereinafter Patry); Leval, Toward a Fair Use Standard, 103 Harv.L.Rev. 1105, 1105 (1990) (hereinafter Leval), [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994) , 6] and although the First Congress enacted our initial copyright statute, Act of May 31, 1790, 1 Stat. 124, without any explicit reference to "fair use," as it later came to be known, 7 the doctrine was recognized by the American courts nonetheless.

n Folsom v. Marsh, Justice Story distilled the essence of law and methodology from the earlier cases: "look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work." 9 F.Cas. 342, 348 (No. 4,901) (CCD Mass. 1841). Thus expressed, fair use remained exclusively judge-made doctrine until the passage of the 1976 Copyright Act

Re:I don't care

[Anonymous Coward]

>> The civil rights activists were breaking a law when they sat at the front of the bus and refused to get up.

I assume you mean the Montgomery Bus Boycott.

Please check your facts. No law was broken in that case.

That didn't stop Rosa Parks from being arrested.

The DMCA is law, which makes it more difficult to change.

Sources of RIghts

[bagman]

The author of this piece neglects to mention how and why a section relating to fair use was added to the 1976 Act. Fair use was not created by Congress. It was created by federal judges as an equitable doctrine that "permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (some bracketing, internal quotation marks omitted)).

The Copyright of Act of 1976 was intended to preserve the judicially developed doctrine of fair use and "not to change, narrow, or enlarge it in any way." (4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT 13.05, at 13-150 & n.7). Fair use is still very much a creature of the courts. Congress identified a list of four factors that the courts must consider, but there are no bright line rules.

The judicial origins of the doctrine lead one to ask the question, if there were no fair use doctrine, would the Constitution obligate courts to come up with one? There is a strong argument that fair use is mandated by the Constitution. It goes as follows:

U.S. CONST. art I, 8, cl. 8 reads: "The Congress shall have Power . . . [t]o 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." Thus, Congress's power in creating copyright is arguably limited to those actions that promote "the Progress of Science and useful Arts." Fair use doctrine prevents copyright law from serving as a bar to progress. Thus, if courts did not recognize a fair use defense, the Copyright Act, as applied in certain cases, would be unconstitutional because it would effectively prohibit activities which the Congress has no constitutional authority to prohibit.

I like this argument better than those that rely on the First Amendment, because it does not need to reconcile conflicts among different provisions, relying instead on the copyright clause itself.

Re:two things

[Anonymous Coward]

2. where there is a conflict between the Constitution's provision for copyrights and the First Amendment, the First Amendment should be presumed to override the original language, because the very purpose of an amendment is to modify the Constitution.

Not entirely true, read the amendment process - an amendment must specifically state what provision of the Constitution it is amending. The First Amendment does no such thing. Therefore, any apparent conflicts between the Constitution and the First Amendment must be resolved, not discarded.

Re:Dear God almighty...

[Quintin Stone]

No, the original poster was right. The whole foundation is that certain rights are God-given ("that all men are created equal, that they are endowed by their Creator with certain unalienable Rights"). The government does not give us these rights... The Creator did. Whether or not you believe this doesn't matter. It's still the very concept that the nation was built upon. It is the role of the government to "secure" these rights for its citizens, to protect them and defend them from those who would take them away.

Your bringing up contract law is completely irrelevant to the discussion. The point of a contract is that it's an agreement between two parties. The government simply enforces legally binding contracts because if they didn't, the whole foundation of a capitalistic commerce would collapse. Contracts don't take away rights... you simply agree to waive them in exchange for something else in return.

DMCA does *not* apply to expired copyrights

[yerricde]

I am not a lawyer, but I have read the entire text of Title 17, United States Code, which contains copyright law and mask work law.

when the copyright expires it's allowed to copy the work in question, but assum the work is on a copy protected media like a dvd, acording to the DMCA it's then still ilegal to use copy protection cracking software

Not necessarily unlawful. The DMCA (17 USC 1201) bans only circumvention acts and devices that attack "a work protected under this title" (that is, Title 17), namely a work under either a subsisting copyright or a subsisting mask work monopoly. Works whose copyrights have expired are no longer "work[s] protected under this title." This is why the Big Seven studios haven't released much (if any) public domain content on DVDs, because in that case, somebody would be able to lawfully make or import a circumvention device designed specifically to decrypt public domain works (which also happens to work on copyrighted works, wink wink nudge nudge). And no, encoding celluloid to MPEG-2 doesn't introduce enough originality to pass the 103(b) exclusion.

so how are we legaly sopoused to be able to copy a copy protected work even when the copyright has expired?

Without the Bono Act, the DMCA lacks teeth because the Mickey's Early Years DVD would contain public domain content, making DeCSS, QrPFF, and EfDTT legit.

Re:fair use for dummies

[RickHunter]

I do not own the copyrighted work, the text of the work. I own the materials that make up this specific copy of the work. This gives me the right to do whatever I want with my copy of the work. I can paint all the pages blue and stick feathers on the covers. I can then sell my Stephen King case-mod.

This is not correct. When I buy a book, I buy a copy of that book. Which means I own both the pages and the words printed on them, though its unclear that such a distinction should be made. However, because of copyright law, I cannot legally create and distribute copies of this work. Copyright law grants the author of a work a temporary (well, in theory) monopoly on the introduction of new copies into the market. Copyright is a government-granted monopoly, just like patents. Nothing more, nothing less. No ownership is involved. As the name says, it is the right to make (and distribute) a copy.

Re:Free speech is a constitutional right

[h4x0r-3l337]

Digital copying is an extention of free speech

No, it's not. You are free to sing any song yourself, or recite from any book. In those cases, it is YOU that is doing the speaking, and your right to speak is protected. Making copies of someone else's recorded speech is a different matter altogether, and is not covered by the first amendment at all.

SC 1, Stroligo 0

[coats]

Stroligo:

Fair use is never mentioned in the Constitution (not eve mentioned in any copyright law until 1976). Rather, it originated as a means by which producers of intellectual property could make limited use of the work of others (and allow somewhat freer use for nonprofit educational purposes).

US Supreme Court, 1823:

Congress may pass no copyright law so stringent as to abridge Freedom of Speech nor Freedom of the Press.

That US Supreme Court decision is the origin of the doctrine of Fair Use. It is a matter of Constitutional rights.

OTOH, many of the uses claimed as fair use do not meet the SC's Freedom of Speech and Press constraint on copyright law.

fwiw.

Maybe you should buy better CDs.

[autechre]

An artist puts out a CD with one song that you like and 15 that you don't? Of course it's not fair to buy such a CD. You don't really like enough of it, do you?

Maybe you should like bands that suck a little less. Really. I mean, shouldn't someone have at least 5 good songs before putting out their own album? If you only have 3 good songs, you can put out a split CD with a similar band or something, but...

Admittedly, working as a music director at at a (largely) independant radio station, I have a bit of an axe to grind. But it's a really good axe :) I've really only been listening to independant music for a few years; it was all my local "modern alternative rock" station before then. But I've discovered that, to me, the overall quality of the songs is better. The CDs are also less expensive. Sure, there are plenty of indie bands that suck, too, but the good ones are really good, and there's a lot of original sounds that don't ever make it to commercial radio.

A large benefit of this is that most of those stations are not RIAA members. Yes, kids! You can buy CDs, good ones, for less money, and not support the RIAA!

Of course, they don't have the marketing machine that you pay for when you buy the overpriced CDs, so how can you find out about them? College radio station people read the College Music Journal . There are also many good review sites; do a Google search and find a site where people have reviewed Quasi, Built to Spill, Autechre, The Czars, etc.

You could also listen to my station online :) There are many like it; some are freeform, and some adhere more strictly to a specific genre. But try it out; you just might like it. I did.

Re:You cant review movies anymore on slashdot

[Kierthos]

Maybe it's just me, but a movie review has never influenced my decision to either go or not go to a movie. Of course, considering that the only movie reviewer I read regularly seems to hate 99% of the movies that come out, and that I only read his reviews to comment on how clueless he is at times, perhaps I am not a typical "reviewee".

Same with music. My decision to buy or not buy a CD is not influenced by MTV's "Hit Pick of the Week" or whatever crap Carson Daly happens to be shilling. Neither is it really influenced by what the radio is playing (mostly because I swear their playlist hasn't changed in five or six weeks). I buy what sounds interesting to me, and only listen to the tracks I want to.

However, I should be able to listen to it in the car, on my computer's CD player, at work, and if I want to, I should be able to rip the tracks to mp3s to play them that way.

And the fight for information has been going on for a much longer time then the last few years. And it hasn't always been music. Propaganda, spying on other countries, whatever... information has been fought over for centuries.

Kierthos