Slashdot Mirror
EFF Suing The FCC Over Broadcast Flag
Tamor writes "According to this press release the EFF with 'five library associations, Public Knowledge, the Consumer Federation of America, and the Consumers Union' is suing the FCC over its decision to mandate the broadcast flag." Reader MImeKillEr explains "The lawsuit is charging that the FCC exceeded its jurisdiction, acted in an arbitrary and capricious manner, and failed to point to substantial evidence in adopting a broadcast flag mandate. The FCC has asked the court to put the lawsuit on hold, pending the FCC's decision on petitions to reconsider the broadcast flag mandate, although all of the petitions address unrelated matters. The coalition of organizations opposed in court the FCC's attempt to postpone the lawsuit."
"Fair use" is a technical term, and "timeshifting" is not now and never has been "fair use".
The courts did rule in Sony v. Universal City Studios (1984) that use of VCRs is primarily for time-shifting, and that such use does not harm the value of the work to the copyright holder, thus the courts refused to ban VCRs. However, there has never been any ruling, implied or otherwise, that copyright holders are obligated to assist us in our fair use, or prohibited from engaging in other technological measures to prevent us from engaging in activities that might be defended as "fair use".
Slashdot in general has a very, very, very unbelievably wrong idea of what "fair use" is, to the point that it has virtually no connection with what the legal concept actually is. Fair use is a very narrow allowance to use small portions of copyright works subject to severe limitations, no more. There is no such thing as a "fair use" right in law. (Which isn't to say there shouldn't be one; I do in fact argue that something like it should be protected. But that doesn't make it magically appear in the real law we have now.) As a result, the flag can not infringe on our non-existant "fair use right".
The reason why I continue to post this point, despite continued evidence that Slashdot as a whole refuses to understand this, is that the misunderstanding is dangerous. Thinking you are protected legally means you won't do anything to protect a "right" you think is safe. It's not. Fair use doesn't do shit for you unless you fit into the narrow provisions as described in the link above, and Slashdot as a whole needs to stop thinking otherwise or we will continue to have our "fair use rights" "stripped" from us, with no coherent protest.
(Oops, the last half of my post turned into a rant, chuckle.You are absolutely right that copyright holders are not obliged to assist fair use. Much of the rest of your post is dead wrong however.
What fair use applies what it does mean is that you are completely immune to all copyright law rules and restrictions. Someone selling you a product can certainly make make fair use inconvient, but that's all they can do. I can sell you a song etched into a solid diamond disk, that would certainly make it a challenge to snap that disk in half, but you still have every right to do so. If you make the effort to work around their obstacles and make fair use anyway then they don't have any copy rights to call on. You are immune to copyright.
When you make fair use anyway they have no right to do squat.
Fair use is a very narrow allowance to use small portions of copyright works subject to severe limitations, no more.
Completely false.
The Supreme Court in Sony v. Universal City Studios (1984) clearly held that timeshifting was not an infringment of copy rights. Timeshifting a movie blatantly involves the copying of an ENTIRE work. "Small portion" is merely one one indicaton of fair use.
It is also usually fair use for a teacher or student to make multiple copies of an entire work for classroom/educational use. It is usually fair use to copy an entire work as part of a research project. It is usually fair use to copy an entire work for virtually any personal use at all. There are numerous other examples where copying is fair use, even some cases where it is fair use to do so while selling products for profit.
There is no such thing as a "fair use" right in law.
It was acknowledged in copyright law in 1976, but it existed before that. If you check the court history of fair use you'll see that many of the limiations on copy rights were mapped out by the supreme court on 1st amendment grounds long before 1976.
The litteral text of copyright law violated the constition in a dozen ways or so. Normally when a law comes into conflict with the 1st amendment or any other part of the constituion that law is struck as null and void. Rather than striking copyright law outright the court decided to bend over backwards and "pretend" that copyright law never actually attemped to apply in that case, that the law doesn't actually attempt to restrict what it claims to restrict. They assumed that copyright law willingly and implicitly flees when faced with "fair use".
Some of those existing limitations on copyright were written into copyright law in 1976. That was merely written acknowledgement that copyright did not (and could not) even attempt to restrict those things.
It is extremely unfortunate that it was written into the law at all. Why? Because now many people MISTAKENLY think that fair use is something that copyright law grants to us. They therefore mistakenly think that fair use can be changed/reduced/eliminated at will simply by rewriting that law.
It is not copyright law that restricts fair use, is is fair use that restricts copyright. Where fair use treads, copyright vanishes. In most cases it would be unconstitutional for copyright law to even attempt to infringe into the realm of fair use.
Copyright holders don't have to assist fair use, but they have no rights at all and therefore no power at all when you proceed make fair use anyway.
Fair use doesn't do shit for you unless you fit into the narrow provisions as described
You have it backwards. It's copyright that "doesn't do shit for you unless you fit into the narrow provisions" granted. And the granted copy rights are subject to all sorts of limitations and restrictions and exceptions and have all sorts of holes in them.
P.S.
I am actually pro-copyright. Traditional copyright is a good and beneficial thing. I'm only agai
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.