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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."
what kind of right it is. It doesn't matter whether it's a legal right or a constitutional right. I want it, and I will refuse to give it up. I do whatever I please with no thought for the law. I base my actions on my personal values and morals. If I happen to break a law, like the DMCA, tough. The civil rights activists were breaking a law when they sat at the front of the bus and refused to get up. They said the law was unjust, they went to jail for it, and they won. I plan to do the same.
The GeekNights podcast is going strong. Listen!
Reasonable people agree that the creator of a work should compensated for his efforts, hence copyright - but it has no basis in the constitution. The real question deals with practical issues surrounding the rise of the internet. With the possibility of instaneous distribution and infinite, perfect replication, how can creators be compensated for their work? MegaCorp Inc. wants everything regulated, which is never going to happen. Slashdot types want everything free as in beer, which doesn't encourage creation. So until someone finds a decent way of paying artists aside from CDs, books, etc. people are going to keep stealing digital things because it is a better way to distribute.
As usual, the extremes on either side of the argument need to be tempered to find a workable solution. And it isn't going to be found in the Constitution.
I think a *lot* of people have forgotten one very basic principle: the Constitution of the United States (a la Bill of Rights) is not designed to enumerate every single "right" we have as human beings. This is a very common misconception, and an extremely dangerous one at that.
Kids in school these days are being taught that the government "gives" us a set of basic rights. This is an incorrect, but unfortunately somewhat prevalent view. The government does not *give* us rights; we have these rights just as surely as we have a nose. The role of government in this case is to *protect* those rights which we already have.
Here's the problem: if you "educate" an entire generation of Americas to believe that the government gives us rights, you end up with the unfortunate consequence that we must also accept that what is given may be taken away. This tends to work out well for those in positions of power, and poorly for the average citizen.
This is one of my top reasons for wanting to spend at least a few years of my life teaching. Teachers carry a responsibility to accurately convey knowledge, and the ability to use critical thinking skills, to our soon-to-be citizens. No, I'm not saying I'm God's gift to teaching, or even that I'm right all the time (probably wrong more often than I'd like to admit). I *am* saying I'm interested in taking a stab at changing things.
The Constitution doesn't say I have a right to wipe my own @ss, either. Fortunately, the framers of the Constitution weren't that stupid:
Amendment IX
"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
What needs to be done is a clarification on just what exactly copyright is. As near as I can tell, this is what it should be: authors and inventors shall be rewarded with a monopoly on the sale and distribution of their respective works. Infringement of copyright then becomes a theft of market. Unfortunately, with Washington so thoroughly bought and paid for, I doublt that we'll see that kind of system any time soon.
BlackGriffen
1. part of the purpose of Fair Use is to preserve the public's First Amendment right to discuss copyrighted works. The fact that some of these rights are explicitly recognized in copyright law doesn't mean that Fair Use is inherently limited to what is in the current law.
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.
none of this means that people can copy whatever they wish and claim Fair Use. on the other hand, laws that impose criminal penalties on reasonable exercises of the First Amendment should be shot down at the earliest opportunity.
Since we are talking about legal issues and correct classifications and obviuosly some people will never get it straight:
copyright infringement != theft
Property rights have nothing to do with copyright. The laws governing those two subjects have totally different motivations.
***Quis custodiet ipsos custodes***
...which consists of 10 minutes of reading and another 20 of thinking about what the author said, let me put it down into a single sentence.
"Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original."
---Universal v. Reimerdes
US Second Circuit Court of Appeals
You have the [legal] right to use it in a specified manner, albeit a limited one.
Except that's not the scenario you should anticipate. If you provoke the ire of the media monopolies, they won't have you arrested. They'll sic their lawyers on you. Which will tie up all your assets in litigation until you relent.
Nor should you expect society to respond to your actions the way it did to the Civil Rights movment. That was about fundamental matters of human dignity, like being able to sit down while riding the bus, or use a public bathroom, or buy a house, or do a thousand other things most of us take for granted.
Many people might think you also have the right to listen to a song without buying the whole album, or watch Sex and the City without subscribing to HBO. But let's get real: these issues will never inspire the same level of outrage and activism.
Most people would consider it an individual liberty to be able to use what they paid for in any way the choose, whether it be ripping a CD to mp3, ripping a DVD and encoding to some other format (requiring DeCSS), or just owning a computer that has an unrestricted memcpy() . It's considered a basic right to bear arms, so are you telling me it's not, to own something that can copy bits?
First, who exactly decides what "reasonable people" are? Second, copyright was originally more "reasonable" at a 7 year term, then more "reasonable people" came along and now look where we're at. Finally, "it has no basis in the constitution" is just wrong, because the Constitution is the sole source of authority for the Federal Government to make laws. If copyright didn't come from the Constitution, then it is an illegal law.
Hellooo, DMCA, SSSCA. We said the former was "never going to happen", and it did. The latter... won't pass this year, maybe. The future is not a very bright one, though.
Uh, hello, first off "Slashdot types" (of which I believe I qualify) likely want more: everything free as in liberty; free as in beer is just a nice extra. This "doesn't encourage creation"? What do you call these:
Or maybe that business model just isn't going to work anymore, so they better get a different job or find a different way to make money. There is no guaranteed individual right to make money on a given venture. The reason we originally had the copyright was to further society, not line corporate pockets. Artists can control their work, possibly making money for a short period of time, then work is returned to the public domain. That's not how it works anymore.
No. The end has already been determined. Like a Myrddraal, MegaCorp Inc. has already been killed, but they're too dumb to realize it, and it doesn't mean they're not still dangerous (see DMCA and SSSCA).
Don't think of it as a flame---it's more like an argument that does 3d6 fire damage
If I purchace any item I should be able to do whatever I want to it. Including and not limited to:
modification
destruction
reverse-engineer to make myown.
transferral to another party via resale or gift
However, what I cannot do is make cloned copies and re-distribute them as the original.
If I go to the store and purchace the latest Stephen King novel and then read it, It is completely within my right to resell that book.
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.
I can even try to sell it at a price greater than my purchace price. It is my copy. I can redistribute my copy!!!
I can buy 100 copies of the book. Do the same mods as well as number them. I now sell them as a limited set.
This all should be well within my right as I am taking materials that I legally aquired and combining them. I am not, however, making "copies" of the work.
I can even sit down and try to write my own stephen king type story. (I suck. I cannot write anything near SK)
I cannot try to redistribute my cloned King as the real thing (aside from the fact that it would suck and noone would believe it was him anyway)
People are choosing to use Napster and other data sharing software to redistribute their own unmodified "copies" of the original work.
This is where the law is being broken.
I can make as many copies as I want for my own personal use. I can do whatever the heck I want with my copies. I can NOT, however, redistribute those personal copies unless they ALL go with the original.
I can make a photocopy of parts of a StephenKing book to take with me on vacation. I do this for MY PERSONAL USE. Not to redistribute. This should be legal.
I cannot redistribute my own copies without the permission of the copyright holder. Or until the copyright expires.
Lets try another analogy with Beverages.
I purchace a case of Beer(tm).
I can then do whatever I want with the liquid in the can.
I can modify it - make beer batter shrimp.
I can destroy it - pour it over a fire.
I can transfer it to someone else -
sell it at a concert for 10x price.
give it away at a party
I cannot make exact duplicates for redistribution.
(even if we had cheap materials duplication technology)
However --
I can brew my own beverage that is indistinguishable from the original. As long as I do not attempt to pass it off as the original.
It really should be that simple.
If it is not, someone please tell me where I am wrong.
comment directly in my journal
You often see these is newspapers who are on one side or the other of an issue: when you do, you know the newspaper's biased.
davecb@spamcop.net
The basic principle is that only the enumerated responsibilities listed ( in the Const., State, Municipal, Neighborhood, etc.) are given to the government..ALL other rights belong to the individual......We submit to governance by citizenship and contract.
The Government does not GIVE us rights....We have them and give some up for the good of society! The government does not "start out" with all of the rights (or the right to all money either) and then "Give" them back to us.....
We start out with "All rights except these...." which we temporarily give to government at our pleasure....(at least in the old times)...that's why it's important to vote...always....
Like the presumption of innocence, this needs to be emphasized to kids in their civics classes.......
If you get the basics right, all the other stuff will fall into place.
One important test for this Right: The People consider that they have it. Criticism, parody and other fair uses has been viewed as a right of those derivitive creators.
I've been doing this for a long, long time. And I didn't start doing it to protest them taking away my rights - although that's yet another good reason for me to continue.
I don't have a TV. I don't listen to radio. The last two movies I saw (once each) were LoTR and "A Beautiful Mind". I haven't bought a shrink-wrapped CD in well over a year.
I stopped buying because the stuff that was being produced wasn't worth it. I also realized that I could find much better stuff online - for free! And I'm not talking about getting Britney Spears off of Napster or Morpheus. I'm talking about getting good, original music straight from the artists themselves.
The kind of movies I watch, they don't play on cable (very often, if at all). The kind of shows I like to watch were canceled long ago, if they were ever aired. The kind of music I like to listen to isn't played on any radio station I've ever heard. What is being played and showed appears to me to be utter crap, and for some reason it's costs keep increasing.
So let them try to take away my rights. It won't work, because a) I'm not breaking any laws, and b) I'm not going to buy the new stuff. I'm perfectly happy with the hardware, software (open source), music, movies and books that I currently own. I don't want, or need anything else, especially not something that is vastly inferior, which appears to be everything that is coming out these days.
So I've made my decision: I'm not buying it, both because 'it' sucks and the people producing it are trying to take away my rights and control what I watch and listen to. Thanks, but no thanks.
With regard to the DMCA and DeCSS, I must say I disagree with your analysis. The DeCSS source code which has been prohibited from being distributed doesn't do anything. It is a few text files named '.cpp' and '.h'. It describes a process in a language appreciable to computer scientists how CSS is decrypted. A computer scientist learning about encryption would derive infinitely more value from DeCSS than a garage DVD counterfeiter.
DeCSS isn't useful in pirating DVD movies. To copy a DVD movie, if the first encrypted byte is 11001010 then, a pirated copy needs to contain exactly 11001010, not whatever that might be decrypted as.
DeCSS should in fact be legal under the DMCA. (As mentioned above, it isn't useful in pirating movies; there is no reason to decrypt them: just copy bit-for-bit.)
See Title 17 Section 1201 (f)(3):
It should be legal to play DVDs on a GPL operating system like Linux. Using the DeCSS source code, it is possible to do so. Of course, the movie studios would be pissed off if they didn't get to sell a $100K license. Perhaps that is what this is really about, money and control not copyright violations.
The DMCA effectively kills Fair Use. The DMCA says that copy protections can't be circumvented regardless of why. That effectively makes circumventing a copy protection with no intention of infringing on copyright illegal. If you read the Encryption Research exemption, it says that researchers must get permission to see if encryption protecting copyrighted materials is secure. Have independent researchers ever been required to get permission from patent holders to conduct a study on whether or not a drug is safe?
The SSSCA/CBDTPA goes even further in this deranged direction, making it illegal to be capable of committing copyright infringement. Certainly, copyright infringement isn't good, but most people in prison are there for more dangerous crimes that threaten a much larger portion of society. Like murder or rape for instance. If Congress has been empowered by the Constitution to make it illegal to be capable of committing a crime, why haven't they? Probably, because there is nothing criminal in capacity. Intent and actions can be criminal, capacity can't.
Just my two cents.
Sincerely,
Paul
After reading the article, two themes emerge: copyright of intellectual property and free use thereof. These two concepts can be interpreted as follows (my interpretation, based on limited understanding): Copyright is a law created with the intention of protecting creators control distribution of their creations for a limited duration -- after which they have the opportunity to renew their control or allow it to pass into the public domain. Free use is a concept by which those who purchase intellectual propery are allowed to use it in any way they wish as long as they do not re-distribute it.
So, theoretically, those that hold copyright on music/movies/etc. should have the final say on how to distribute it. The problem is that it isn't just the artists that hold the copyright -- it's also the publisher of the creation -- i.e., the movie distributor, the recording label, etc. What they want is for somebody to buy the music/movies/books they distribute. In most cases, they could probably care less what we do with them once we purchase them.
However, a large number of people have made it very public that consumers don't simply purchase them and keep them in their own house -- they copy them and give them to friends, or, in the case of the internet, complete strangers. And they do it for free.
What's interesting is that it's not typically the artist who will suffer from this -- especially in the case of music or books, where the artist literally gets pennies to the dollar in royalties -- it's the distribution/publishing companies. And since they own copyright on the materials, they have a legal case.
The problem is then this: what if I, who own XXX cd and YYY DVD, want to make one or two archival copies so that I don't ruin my original by playing it too much? What if I want a copy of XXX cd to play in the car, an mp3 copy of it to play on my computer at work, and my cd to keep at home in my CD player? Well, because the recording industry feels that we as consumers only want to copy materials in order to re-distribute them, they want to curtail our ability to do these things -- especially since digital media is so portable and easily distributed.
Who's right? The recording industry has legal precedence (copyright laws) -- but so do consumers (audio and VHS recording technologies exist, after all, under the umbrella of "fair use"). Who will win? The people who scream loudest in the ears of the lawmakers.
You don't sound like a very open-minded person, but...
Depends on what you mean by "share". You are paying for a use of the material. You are not paying for distribution rights. The use you paid for is "home use", which roughly covers what you do with things in everyday life. Not reselling, and not redistributing.
That's fine, that's covered by regular "home use", and it's something you've paid for. What you can't do is charge for admission. That's "commercial use". You also can't redistribute the music for other people to make their own copies of it - that's redistribution.
Believe it or not, clubs and raves have to pay pretty hefty prices to do what they do. They do not just go to Rhino Records and pick out some tunes. They pay thousands of dollars per year to ASCAP and BMI, organisations who (purportedly) then compensate the copyright holders. So your analogy doesn't hold up.
"How can you claim that you are anti-crack, while still writing a window manager?" — Metacity README
It's important to distinguish between an Article I power granted to Congress and an individual right. The provision you cite gives Congress the power to provide for copyright protection, provided that it is found to "promote the Progress of Science and useful Arts." Congress is not obligated to provide such protection, and in fact may only provide it to the extent it serves the stated purpose.
That is very different from an individual right such as the First Amendment right of free speech, which operates as a strict limit on government power. In any conflict between an Article I discretionary power and a fundamental right such as the First Amendment, the balance is heavily weighted Constitutionally in favor of the fundamental right.
The problem (as the article obliquely points out) is that this balance is being struck in Congress rather than the Supreme Court. The Court has essentially abdicated its responsiblity to weigh the First Amendment against the growing encroachment by the Article I copyright power.
Copyright law is not of burning interest to the average voter, and consequently well-funded lobbyists for the entertainment industry have been largely unopposed in their efforts to expand copyright protection. This situation is unlikely to change until the Supreme Court wakes up to its responsibility to decide the First Amendment issue rather than simply punting to Congress.
The problem is that as long as our community pretends to want fair use protected for principled reasons but really just wants to go on pirating forever, we're not fooling anyone, and the lawmakers are going to push all the harder for controls. This makes legitimate fair use an innocent victim of the campaign against piracy.
I suggest that we drop the pretense and help to get the legislators focused in the right area. It is one thing to enforce laws against piracy, and entirely another to order that all computer equipment be rendered unable to make unauthorized copies. This is like outlawing machine tools because they could be used to produce Ford automobiles without the permission of Ford. Legislators the world over need to be shown how absurd this is, but we can't show them if we can't be trusted. If we're going to convince the world that the digital revolution means an end to high-valued content, we are going to have to clean up our act and become credible.
You need to to do better research. Fair Use and copyright law was brought over from England/Western Europe and was practiced in the United States before it existed and before the Constition. Copyright HAS NEVER existed with the purpose of protecting someones economic rights. The purpose, as reiterated by Supreme Court Justice Sandra D. O'Connor, is to protect and encourage the free flow and exchange of ideas. The only people to say otherwise, in an attempt to divorce the public from their history through ignorance, are RIAA, the MPAA, and their respective lawyers. Anyone doing any research at all can find the history of copyright on the web or in their local library. The idea that a publication which supposedly 'checks' or verifies their stories could print such boldface lies indicates that they need to hire new checkers or that they are owned by the corporate moguls perpetrating this attrocity in America. Perhaps the time is not far off when the Jeffersonian renewal of government by the people and for the people will be required.
Avrice