Coding Fair Use

An Anonymous Coward writes: "A report from CFP2002 on the tension between making fair use clear and retaining ambiguity to facilitate the application of fair use to future technologies." Lots of good papers available from the Fair Use By Design workshop and the conference in general.

Comments

Do The Math

[stoolpigeon]

As the article states, any system to try and restrict access to content will be broken.

You can keep passing laws but you cannot enforce the laws already in place as there are just way too many laws and even more people to break them.

If you can't enforce all the laws for all the people, then of necessity you must choose which laws you will enforce, when you will enforce them and who you will enforce them on.

In the world we live in right now- resources are not going to be primarily aimed at keeping content locked up. There are larger, more pressing issues. (like staying alive)

Content creators need to take some of that creativity and look for new ways to make it self sustaining.

It makes me think of self defense moves where you use the weight and inertia of a large aggressor against them. Content creators need to stop fighting what is an unstoppable force and find a way to ride that force to succes.

Easy to say, hard to do? Sure but what is worthwhile that isn't difficult?

.

Re:Do The Math

[ebyrob]

I did the math.

I don't see what speeding has to do with copyright. In one case (speeding) people break the law and are caught. In the other (copyright) industry is attempting to make breaking the law difficult or impossible.

To equate speeding with copyright would require making cars that go over the speed limit illegal. Then doing away with traffic cops and radar guns entirely. This might stop freeway speeding, but it wouldn't catch out of control or dangerous drivers at all.

RIAA in a nut shell..

[Em Emalb]

this quote from the article sums up for me everything wrong with the **IA.

"The floor for the entertainment and other "content" industries is increasingly clear. They don't fundamentally believe in fair use, and they see technology as a way to turn everything into pay-per-view -- a system that would eliminate fair use almost completely."

This is what is wrong with the US today.

Heh

[The Cat]

Looks like we might be on the right track too.

This is only going to become more common. Companies have to realize that people are not "consumers" and that they want to particpate rather than just observe. All of the best things happening in the game industry are happening because of the participation of people in the market. Hopefully this will expand, and be encouraged by more astute businesses.

Everything as pay per view

[Alien54]

Fred von Lohmann, senior staff attorney at the Electronic Frontier Foundation, is arguing for ambiguity. He thinks copyright law needs to leave room for innovation as new technologies come along.

An audience member asks if this ambiguity is what lets lawyers threaten people with lawsuits for non-infringing uses, intimidating them into taking down Web content that should remain public. We need a floor, von Lohmann says, not a ceiling on permissible activities.

The floor for the entertainment and other "content" industries is increasingly clear. They don't fundamentally believe in fair use, and they see technology as a way to turn everything into pay-per-view, a system that would eliminate fair use almost completely.

This impulse has been around for a while under different names.

It used to be known as "Killing the Goose that Lays the Golden Egg"

Fair use need to be somehow writtin into law, but I do not see a quick way around someone who decides to sell something only on a pay perview basis. With a wide enough reach (such as the Internet) you can generally get enough people to support the market, even if they are only the tiniest fraction of the population.

Example: Spam

"ownership" of content?

[happyclam]

The piece makes mention of the entertainment industry trying to move everything to pay-per-view. Clearly, that would be ideal for them. But lost in that worldview is the idea that once I "buy" a bit of content, it's "mine" to do with as I choose, short of republication.

Example: I buy a book. I can read it zero or more times. I can pull pages out and rearrange them or stick them on my wall. I can make a photocopy of portions and keep those pages in my car. I can give the book to a friend, but I'm not allowed to copy the book and give it to a friend.

This right is, of course, what the fair use clauses are meant to protect.

Copyright law is really (or should be!) about publishing--no one but the owner of the "rights" to a piece of work has the legal right to publish it.

Perhaps it's all semantics (but isn't that what the law and politics are about?), but it seems to me we should stop talking about copy rights and start talking about publish rights. Put the battle into the right geography: It's not about making copies but about distributing copies.

If we managed to change the language to a language of publish rights instead of copy rights, then perhaps terms like "piracy" would simply vanish. And, it seems to me, coding protections for publish rights while also coding protections for fair use rights would be less ambiguous and more achievable.

My vote for Fair Use.

[volsung]

I think digitalconsumer.org has the ideal set of "fair use" requirements:

The Consumer Technology Bill of Rights

1. Users have the right to "time-shift" content that they have legally acquired.

   This gives you the right to record video or audio for later viewing or listening. For example, you can use a VCR to record a TV show and play it back later.

2. Users have the right to "space-shift" content that they have legally acquired.

   This gives you the right to use your content in different places (as long as each use is personal and non-commercial). For example, you can copy a CD to a portable music player so that you can listen to the songs while you're jogging.

3. Users have the right to make backup copies of their content.

   This gives you the right to make archival copies to be used in the event that your original copies are destroyed.

4. Users have the right to use legally acquired content on the platform of their choice.

   This gives you the right to listen to music on your Rio, to watch TV on your iMac, and to view DVDs on your Linux computer.

5. Users have the right to translate legally acquired content into comparable formats.

   This gives you the right to modify content in order to make it more usable. For example, a blind person can modify an electronic book so that the content can be read out loud.

6. Users have the right to use technology in order to achieve the rights previously mentioned.

   This last right guarantees your ability to exercise your other rights. Certain recent copyright laws have paradoxical loopholes that claim to grant certain rights but then criminalize all technologies that could allow you to exercise those rights. In contrast, this Bill of Rights states that no technological barriers can deprive you of your other fair use rights.

This is NOT Ideal

[CrystalFalcon]

In writing "Ideal", you suggest that this is exactly what you want. I'd consider it a start.

There are several things I'd like to see additionally. For example;

• The right to sell a used copy of a film, like you can do a book.
• The right to sell a used copy of any software, like you can do a book.
• The banning of software licenses. Software copies should be SOLD, not licensed. If I buy something from you, you should have no right to regulate how I choose to use that item.
• The banning of use-limiting technology that harms the consumers, sorry, citizens (such as DVD regionalization). See above. Or perhaps, rather, the outlawing of enforcing such technology. What I do with my DVD is for me alone to decide.

This is just a start. For example, if you consider the law to be a sum of the generally acceptable morals, then peer-to-peer file sharing should be allowed and legal. Judging by the volume of Napster, Grokster, DirectConnect etc, this is considered acceptable activity by citizens. So fucking what if some corps think it damages their bottom line? Get a new business model. To quote somebody else; the law is not indended to protect obsolete business models. If nobody wants to buy your stuff, you had damn better get into a different business, and that's it.

Phew, got into an intense rant there. Anyway, I think you get my idea. I think the law has to shift more than these basic points, but they are a good start of making the public (and lawmakers!) aware that there is another tray on this scale.

Re:please restrict fair use

[zangdesign]

I don't see anything wrong with having to ask permission to cite or quote. It allows the creator to have some say in how portions of his/her content is distributed. At least for printed material, it can provide some psychological security against being quoted out of context.

The problem comes in that we, as a whole, are no longer reasonable in allowing permission. Who was to blame first in the whole RIAA/P2P debacle? Pick a side - it doesn't matter, really. Everyone has chosen their positions, no one is willing to budge, and the only thing that will ever solve this is one big courtroom brawl.

Frankly, I'm so disgusted with the whole mess, I've stopped buying music, downloading, or providing music to anyone.

When did we, as a society, lose our ability to be "reasonable"?

Vital, vital additions.

[Lemmy Caution]

* Insofar as almost all artistic production is built on the foundation of past artistic production, and insofar as quoting, sampling and reframing existing artistic works in order to create new artistic works is a natural form of artistic production and a healthy, creative response to one's cultural millieu, such quoting, sampling and reframing shall not entail a copyright infringement when the result is an identifiably distinct artistic production.

* Likewise, quoting, resampling and reframing as part of critical practice and in research shall not entail enfringment.

All my commercial software is licensed

[JordanH]

I'm not sure how Fair Use would apply to commercial software I use. All that I use, AFAIK, is both copyrighted and licensed.

From what I understand, the book publishers tried to license all their works around the turn of the century and this resulted in the "First Sale" doctrine we have now when the Courts struck that down.

I'd be in favor of "First Sale" recognition for software, but until we have that Fair Use doesn't have much affect on me. Even if Fair Use would allow me to do something with software that I don't already do, the license would probably forbid it.

Is there any chance that the Courts will just strike down the licenses for software? Are we to act like these software are only protected by copyright, including Fair Use provisions, to get this brought before a court?

Re:All my commercial software is licensed

[vercingetorix]

It's not the lack of a "First Sale" doctrine in software that makes it licenseable. It's the fact that the courts ruled that making a temporary copy of the software in RAM (i.e. using it) was an infringement of the author's copyright. This brain dead interpretation was made in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) among others.

This allows software publisher to force users to agree to EULA's, because otherwise you can't legally use the product. As far as I know, if you don't use the software or agree to the license, you can still exercise your First Sale rights and resell the application, just like a book.

Re:All my commercial software is licensed

[Arandir]

Is there any chance that the Courts will just strike down the licenses for software?

I sure hope so. 99% of the software licenses out there, including many open source licenses, are either illegal or a slap in the face of the legal principles of civilization.

These licenses purport to be contracts. But they are not. There is no consideration. No possibility of negotiation. And no valid assent. Just because a license says you have agreed to something does not make it so.

You walk into a store and buy a copy of Windows XP. Guess what? You now have the legal right to use that software, to sell your only copy of it, to make archival copies, to reverse engineer it, and to install it on any computer that you own. But when you go to try to install it, you see a license. This license is not a contract. There is no consideration, since the license does not offer you anything you don't already have. In fact, it attempts to take away legal rights that you already possess. There is no possibility for negotiation, since Microsoft was not present at the time you purchased it, nor are they present when you must click "I Accept". Nor is there assent, even by clicking that button that says you assent. Because you already have the right to install the software, pushing that button is legally meaningless. Furthermore, you can always get someone else to push that button, so there is no way in hell that Microsoft can even begin to demonstrate that you assented to the license.

I'm waiting for the day when some major commercial software package comes with a only a single line copyright: Copyright 2002 Fubar Company. How much more intellectual property protection does a company need than that?

Shrink-wrap, click-thru, and the every increasingly popular "use-wrap" licenses are fraudulent pieces of legal tripe. They make great tools for intimidation, but their legal worth is less than that of used toilet paper.

Re:Appeal to the artists!

[killthiskid]

To quote the parent:

This is when the tide will turn, and not before - because corporations do and should have rights to protect anything they own and right now they own the rights to the content we want to copy.

I have two issues with this, the first is well said by Robert Heinlein

"There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back."

The second is that we, as citizens have granted these rights you speak of to the cooperations. We also have the power to take away these 'rights'. I feel that several things are obvious:

• Copyright legislation is out of control and is not serving the any where near the obvious intention is was set out to:
  

  To 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.

• Artists are moving towards having direct interaction with their audiences. The problem is that record companies actively supress music by going for a small number of big names. The record industry is kick and screaming it's way into this new paradigm (crap word, I know). The are actively work to hamper this from happening... so its not just a matter of artist changing their ways, its is a matter the record industry actively trying to stop this trend.
• I am not a 'consumer'. I am a god-damn citizen. I very purposely do not consume from the RIAA or MPAA. And I get by just fine without their crap.
• Another quote:

  Until that changes, we the people are screwed and can't do much about it.... legally anyways.

  So what, we're just suppose to sit on our asses? If you keep doing the same thing, you keeping the same results. CHANGE, DAMN IT!