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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."
********* sig: If you don't like the law, get filthy stinking rich, and buy a better one.
Perhaps they had it right back in the time of the Renaissance.Art was generally commissioned back then with the author getting a one time payment for his labour. The concept that artists (nowadays distributers) should get paid by every viewer of their work is fairly modern. Indeed, in the nineteenth century, the United States didn't even recognise the copyrights that Dickens claimed for his works. What a difference a century makes!
flossie
Write now. Defend liberty
I think people here are missing an important point ... what are the limits of space and time shifting? The courts have agreed that shifting music purchased under the First Sale Doctrine onto a device to be legal. VCR is a precedence for time-shifting (which TiVo mimics digitally).
/dev/null then they gain "value" at the expense of businesses trying to capture the fickle tastes and limited attention of consumers. The sad thing is that companies can't change as they've already got those music backlists on their accounting books as "assets" and consumers are becoming more adventurous in their exposure to internet music.
However, from a media studio point of view, this deprecates their backlist. Basically they build up a catalog of works and hope to extract as much future revenue as possible out of sunk costs (think director's cuts, think remix, think DVD extras). By having an alternative "source" of originals (abeit not as mutable) they lose pricing power over secondary/tertiary markets. Apple's business model doen't rely on them owning content, but on allow consumers to rip and snip, effectively bringing the studio into the house. Time and space shifting, if you extend this beyond the immediate neighbourhood via digital means (think web-radio) hurts the larger companies who rely on regional segmentation to market at different price-points. Any corporation which has a backlist of crap is basically going to be ignored despite how much they intend to push the stuff once they lose control of the distribution system.
The fact that there is civil disobediance in people not obeying the copyright law in music indicates that either the law is flawed or that there's some distortions in the market. My guess is that the advertisement business model is just not sustainable over the internet as ads effectively "dilutes" the signal-to-noise ratio when hunting for decent music. If people time-shift ads to inifinity, or space-shift popups to
Immoveable object vs irresistable force springs to mind.
LL
While the article is informative, the author doesn't speculate on why Fair Use isn't a constitutional right. Without any sarcasm implied, could it be that it's simply too recent a concept/development to be established as an amendment? Is there too much opposition to establishment of Fair Use laws? Is it too murky an issue, or is there no sense of a "need" to draw those lines on Capital Hill?
The article was culled from a morass of court decisions, which when strung together form something of a grounding for this issue, but nothing conclusive. I think something like DigitalConsumer.org's Digital Consumer Bill of Rights is in order, at least to draw the lines in the sand. However, this is about as likely to pass as a Patient Bill of Rights. Your response could be that with big money influences the little guy will never win, or maybe just that it's too complex an issue for lawmaker's to tackle right now, and they'd rather leave it up to the courts, case by case. Regardless, even a Supreme Court decision will be too specific to nail down this sector of law, and I don't think a definite answer from our government on what our Digital Rights are is an unreasonable request. I'm willing to bet, however, that "unreasonable" is just what we'll find the answer to be.
If you were an artist, well lets assume you are.
You buy comic books, and say you draw wolverine, the Xman character on paper, you are learning to draw and you begin to appreciate art, eventually you grow up to become the best artist the world has ever known.
This is one possibility.
Now, lets take another look at it, from another view point. Imagine buying a comic book with a timer on it. This timer tells you how much time precisely you have to read it after its opened.
You open the comic book, you read it as fast as you can to beat the timer, after the time is up, everything erases, this is so you cannot share the information in this comic book, this prevents you from ever having a refrence point to learn to draw, from ever becoming an artist. To make it even more extreme, imagine this book could only be read when your registered finger prints were on the book, any imagine that when your prints are on any book that you are automatically being charged for the purchase.
Imagine now, someone invents a machine, which allows them to randomly generate comic style artwork from just scanning one image of wolverine into a computer, imagine then people using these machines to not only share comic books, but to create new comic books. Then imagine the original comic book company suing the makers of this machine for giving art back to the people who for a long time had to pay $20-30 a comic book, a book which they were timed for how long they could read.
Now lets bring it to the most extreme, imagine it being illegal for people who read these books and decide to share it online by repeating the story from memory and using the comic art generator software being thrown in jail.
Ah so people should be thrown in jail so a richer group of people who have a monopoly can maintain it? Even if just as much money can be made by advancing the industry via software generated artwork and a new group of artists who create art for fun?
Thats something to think about. Seriously. Because this situation WILL happen in our lifetimes and we will be forced to choose, money, or freedom.
Do you want to control the art? or is art just about money now?
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Could someone explain how this is suppoused to work:
* 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
- so how are we legaly sopoused to be able to copy a copy protected work even when the copyright has expired ?
"... whether those rights are actual or percieved by the population."
This speaks straight to the core of the problem. Perception is a *huge* component of the state of any society. Unfortunately, this leads to another problem.
In most Western societies, "the people" are represented in government by a select few individuals, chosen by various methods (most being based on some implementation of voting). Those officials chosen to represent the people have a basic responsibility to do their best to understand how their constituents perceive their rights, and to endeavor to protect those rights. In reality, those who scream the loudest are usually heard the most clearly.
The average citizen already lives a complex life. Bills, children, work, school... these are all matters which people must devote mental and emotional energy to on a daily basis. At the end of the day, oftentimes very little energy is left for examining issues "on the table" in their lives as a whole. If these issues aren't perceived to directly affect us immediately, we tend to ignore them. Most people consider catching an hour's worth of the evening news, dished up by [insert prevalent television network name here], to be equivalent to staying on top of current events and issues. Families may even spend some time discussing what they've seen on the tube, which tends to result in a feeling of participation on some level.
However, this doesn't really amount to true participation. Unless phone calls, letters, emails, faxes, etc are made to government representatives (something most people would have a hard time finding time to do, even if they sincerely wanted to), the true level of participation is very low. Add to this the fact that most people don't spend a lot of time thinking through how various issues interrelate, and you get a lot of stuff slipping through the cracks.
So-called "special interest groups" (or "lobbyist groups"), however, are in the business of spinning perception. They know how to scream louder, talk faster, and generally end up influencing things more than groups of "ordinary citizens." We run into a problem here: most of these lobbyist groups are funded by corporations with motives based on finance, rather than human rights.
I'm not trying to say these groups are evil, or that corporations are messengers of the devil. I'm also not saying people are stupid, or uncaring. These are real problems, though. Audience participation is a critical aspect of government, and I believe it's something that can be taught and reinforced from an early age. I know my parents taught me how to pick up a pen and write letters to my representatives in government.
This article says that DeCSS somehow gets around the copy protection embedded into DVD's. As I'm sure most of you know, this isn't technically true. The purpose of CSS is not copy protection but content control. CSS allows movie studios to decide when, where, and by whom the DVD is viewed. Lets say you're in Europe and you'd like to watch a DVD that has just been released in the states. Under the ordinary laws of commerce if you've got the money to buy that DVD then you get to watch it. Not so with CSS. Now movie studios have the ability to pick and choose which titles get released in which region at which price. Lets say there is a title that the powers that be in your country have banned because they don't like it. CSS gives the MPAA the perfect means by which to implement and support this oppression by foreign governments. None of this is right or just. The idea behind copyright is to give producers of works certain rights and protections to encourage the creation of art and knowledge. Unfortunately with things like the DMCA and CSS, non-producers such as the MPAA are perverting the concept of copyright. Where traditionally copyright has been used to define when, where, and by whom a particular work is COPIED, it is now being used to control where, when and by whom a particular work is viewed, read, seen, or otherwise utilized.
Imagine if there was CSS for books and in order to read a particular book you had to live in the right country, be of the correct race or social group, and pay a surcharge to the book cartel every time you wanted to read it. As it stands now books are independent entities. Once a publisher prints a book and sells it, that publisher has no control over what is done with that book other than a legal right to control whether it or portions of it are copied or used in other works. You can read this book, then give it to your friend to read. The publisher can't come have you and your friend arrested because he hadn't paid for the "right" to read that book. You can smuggle books that are unpopular with an oppressive regime into that country and the words will still be legible.
The problem with CSS is not that it is a copy protection scheme, but that it is a scheme to control who uses the DVD, which has nothing to do with copy protection or copyright.
If I remember right a group of video pirates were busted here not too long ago for copying DVD's. What I heard about that case is that they were copying the entire DVD bit-for-bit whether it employed CSS or not. The copied DVD's were still encoded using CSS. So what possible use is it as a copy control scheme? None of course, but its very useful for controlling which people get to watch the DVD.
Another group that is trying to pervert copyright into content control is the "church" of scientology. They employ copyright and trade secret law in order to try and prevent anyone from knowing the truth about their "religion." The truth is that scientology is nothing more than a highly successful scam that robs people of their money, enslaves many in the "Sea Org," and destroys families by forcing those in the cult to "disconnect" from relatives who are critical. Their abuse of the legal system is legendary. Their policy of filing suits for harassment value alone is such that I'm amazed their lawyers havent' been disbarred by now. The organization's sole purpose is to sucker people out of their money that is then passed "uplines" to the likes of David Miscavige. Their use of front groups and interlocking corporations to facilitate the laundering of this money would make John Gotti weep. If you want to find out more about this kriminal kult take a trip to www.xenu.net Be sure to pass this on to your friends too. The more people know the truth about this criminal organization, the fewer potential victims the cult will have to feed upon.
Lee
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a bunch of snot-nosed brats not wanting to pay for other people's labor is beyond pathetic.
And your belief that "snot-nosed brats" are the only ones with a stake in the consequences of the ownership of ideas is laughable. The patenting/copyrighting of DNA threatens to create a much more insidious era of subjection, and what good is freedom of expression if all the obvious ideas and ideas you'd like to use as building blocks for your own new ideas are owned by immortal corporations?
If you can't see the perils inherent in this system, you are extremely short sighted.
microsoftword.mp3 - it doesn't care that they're not words...
And to compare yourself to those people is pretentious to the extreme. You are not protesting an unjust law by leeching off of Napster in the privacy of your home. If you want to be like those civil rights activists, be an ACTIVIST: go sit in front of city hall or the library of congress with your computer and offer "free music" to passers-by. As it stands, you're no better than every other 15 year old who rather spends his money on new sneakers and cigarettes than on music.
Secondly, and this is more about semantics, but in modern "creative" industries, the creator, per se, does not own the copyright; the copyright is owned by a company with which the creator has contracted. Granted the creator receives some money, but people in the industry (here the recording industry) like Courtney Love have stated [salon.com] the amount is nowhere near what Joe Sixpack believes it is. I should have clarifies my point. The use of contracts is the Way Things Work, granted, and that in these contracts, the artist signs over copyright to the label. However, it seems that the RIAA trots out the Poor, Starving Artist (tm) and bemoans his/her plight while turning on them once out of the public spotlight and raping them with a whale (figurativly, of course). (Don't believe me? What about Don Henly, Courtney Love (yes, again), the Dixie Chicks, and LeAnn Rimes? They seem to agree that the labels have an unequal relationship with artists.) My point is that the RIAA cries about how piracy hurts the artist, yet they do as much or more to hurt the artist. -MKD Poor, Starving Artist is a register trademark of the Recording Industry Association of America and is used without permission
Your choice, let some CEO decide how you can use what you paid for and own. Or you decide how you can use what you paid for and own.
I think of it this way, if I pay money for something, I can do any damn thing i want with it, If I buy a Cd and decide to use it as a frizby then so be it, if I decide to break it into peices and feed it to my dog so be it, ITS MY CD.
They own the right to sell it, but once i buy it its MINE.
I can copy the information off of it, that information is also mine, they own the right to sell it, but i can share it if i want to!
If you were playing a CD on your stereo and invited friends over, and its against the law to let anyone besides you listen to that CD, should speakers by outlawed because they allow you to break the DMCA or whatever stupid law is in place? Should you tell your friends that they cant listen to the music with you? Hell clubs and raves should be outlawed too, after all these people are all stealing sound. hey dont forget the people who share TV sets, all of them are evil paracite pirates who are stealing from tom cruise and keanu reeves.
Oh and dont even think about trying to draw your favorite cartoon character or comic, thats against the law too.
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I'm not going to compare the apples of civil rights with the oranges of IP laws, but at the root of it, I do think there's something more important than just the right to download a song -
It's the question of the ownership of the imagination, of the stuff that, by my own experiences with the rest of the world, have become part of my psyche, part of my cultural environment, even part of my subconscious. The widening control over copyrights - and especially the tightening noose around fair use - affects my ability to describe the contents of my own imagination insofar as they've been formed by images and ideas from without.
What do I mean? The other night, I had a dream that, for some reason, took place on the bridge of the Enterprise and had a couple Disney characters in it. Those cultural franchises has taken root in my subconscious. Can I make a movie depiction of my dream now? Can I publish a story about it? Do the rights of the creators of those characters and such have a right that is greater than my own ownership over the contents my imagination? Does their property right preempt some of the most essential rights of expression I might have?
Again, in the creation of intellectual "property." my belief is that you are responsible for making sure you're going to get paid *before you actually do the work.* Once the work is out there, I believe the moral priority goes to those who are going to do with what have then become the elements of their cultural environment as they will, rather than to your belated attempt to get paid for it.
"Fair Use" is what allows both copyright and the first amendment to coexist.
For example, 60 Minutes broadcast excerpts of the "I have a dream" speech by Martin Luther King, and didn't have to pay the King foundation (or whatever legal entity who owns the copyright) anything.
Government doesn't have a "Censored" stamp, but it does have "Top Secret" which is often abused. (I think Senator Moynahan wrote a book on this). If they could just stamp "Copyright" and then sue the New York Times, CNN, or whoever for broadcasting something embarrassing like the pentagon papers, the first amendment would cease to have any force or effect.
As far as "copying" entire works between media or formats - downloading to an MP3 player or making a backup of your hard drive, that might not come under "fair use", but that is a different thing - that "fair use" doesn't cover the acts, as opposed to it being rooted in the constitution (in this case fair use follows from the freedom of speech and of the press - such speech and/or publication - of otherwise copyrighted material - is protected by the first amendment).
Disclaimer: IANAL, but this is my understanding.
Does anybody what "going digital" is doing to our culture? Well, for starters, it's devaluing many items we have in media and software.
The problem lies therin:
Medias for the longest time has distributed analog songs and movies. They were fairly hard to copy, as you usually had to spend the same amount of time to listen to them to copy them. Still, for quite the time, records were just records. No copying them at all, but they were affordable and 'refreshing' (music-wise). If it broke, it wasn't too much to replace.
The Main Cost Is The Media AND the Contents.
Now, the media wishes to distribute everything digitally. The problem for them is that digital data can be copied exactly. Not true with analog (well, most part). CD's cost 15-20 $ a piece and dvd's are equally overpriced. The biggest change this has made is a normal audio cd has about 500 MB raw tracks. This compresses (in 320 kbps) still is about 120 MB. Since the cost here is just space to hold data and the 'creativeness', people see less value.
My point is that cheap media is making people wonder why we are paying SOO much for what seems to be easily stored FOR PENNIES. These days, CD storage is cheap. SO why are we STILL PAYING 15-20 $ dollars for a cd?