RIAA President Decries Fair Use

triskaidekaphile writes, "Cary Sherman, president of the RIAA, has an editorial on CNet responding to the Consumer Electronics Association's support of the Digital Freedom campaign for fair use. Sherman proclaims, 'The fair use doctrine is in danger of losing its meaning and value.' Like a true spinner, he indicates that fair use is indeed important, then states 'Let's be clear. The CEA's primary concern is not consumers, but technology companies — often large, multinational corporations which, like us, strive to make a profit... But to seize the mantra of "consumer rights" to advance that business interest is simply disingenuous.' Slashdotters, trollers, and pollsters one and all, what say you? Disingenuous or dissembling?"

Comments

Re:I think he has a point

[Total_Wimp]

Just not one that I agree with.

What part of it don't you agree with? He really doesn't say anything inflammatory at all. In fact, he goes on and on about a balance and different interests working together.

In truth, I think he only does that because we pushed his group's unreasonable stance so hard that they have no choice but to come closer to the center. We should not let up. But what he is actually saying makes sense.

Point one: We must balance interests. Yep, I like it.
Point two: Downloading songs without paying for them is bad. I agree with that as well.
Point three: There are fair use provisions in the copyright act that must be respected. How could I disagree?
Point four: The group championing consumer rights is self serving and wrong. This one I don't know about. I'm honestly not very familiar with this particular org. I won't defend this.

3 outa 4 aint bad. Do you care to elaborate further on the reasons for your stance?

TW

Of equal interest is Gary Shapiro's response.

[CyberLord Seven]

Gary Shapiro, the CEO of the Consumer Electronics Association has an intersting response. Below are some paragraphs from his response that I thought were intersting.

Maybe it's because the RIAA's own attorneys argued in the Grokster case two years ago before the Supreme Court that consumers can legally make copies of their CDs that Mr. Sherman feels he needs to rewrite the history of fair use here. To say that the RIAA has moved away from the position they outlined for the Court is an understatement. They have attempted to turn the concept of fair use into a flaccid technical defense used only by journalists and obscure authors and creators.

Mr. Sherman also takes great pains to incorrectly and deceptively quote from a speech I gave five years ago prior to the Supreme Court's Grokster decision, and in the process seeks to paint us as money grubbing extremists. Yet, the RIAA won the Supreme Court case and yet still wants more from Congress. This should come as no surprise. When technology companies agreed to limit technology by agreeing to pay royalties directly for each recording device and by restricting how those devices were built, they promised to end their costly and frivolous lawsuits against our companies. Yet, they still want more. We kept our half of the bargain and they sued XM for selling a recording device which can't even send a signal over the internet.

Why shouldn't a student be able to use lawfully acquired music in a school project? Why can't my wife use the song she bought on ITunes on a DvD she is making of our photos? Why can't I make a favorite hits CD with music I lawfully acquired.

Mr. Sherman paints us as downloading thieves. But the RIAA litigation machine, which has extracted millions of dollars in settlements from over 10,000 Americans, wants bigger tools and new laws.

Enough already. Americans have rights to use lawfully acquired music for non-commercial purposes and the effort by the RIAA to paint them as pirates is unfortunate. That's why the Digital Freedom campaign is a movement whose time has come.

Fair Use vs. Limited Times

[PackMan97]

We'll give you fair use, if you give us limited times.

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;

You see, ever since the late 1920's Congress has been retroactively extending all copyrights every time they are close to expiring. The length of a copyright is currently at 95 years, which is far longer than the average author's life expectancy even if we assume they penned their work at the age of 1. Well past the lifetime of any human being if we assume they created their work after their teenage years. Every time copyrights are about to expire, congress extends them making them effectively unlimited. So, how about a compromise here? We'll grant that not everything we do is fair use (such as posting to youtube.com and file sharing sites) and you grant us a copyright term of around 50 years?

Bottom line: I should be able to record anything!

[maillemaker]

The bottom line for fair use is this:

I should be able to make a copy, for personal use, of any content that I can receive, whether it is broadcast for free or (especially) if paid for.

This is what Fair Use has always been understood to mean, in addition to being able to use small excerpts for review or educational purposes.

It was about us popping a tape in our VCR or radio and making a recording.

Now that the recordings are equal quality to the original, the RIAA and company want to renig on the deal. It's as simple as that.

If you've paid to receive the content, or it is freely given away, you should be able to make a copy for personal use. Period.

He did lie....

[krell]

"Reading the whole article, I think his point was to mislead"

He did lie about a couple of situations being theft, when in fact no theft was ever involved.

"For me, fair use is being able to backup my cds onto my harddrive and encode them in any format I please for my mp3 player."

That about does it for me, too. Add to this DVD/video content (including anything I download or view online) and being able to view such content on my DVD player.

Re:He did lie....

[mark-t]

Can it be agreed upon that theft is when you take something away, without permission, from someone else so that they no longer possess it, or as much of it, as they had before the theft?

Then copyright infringement _IS_ in fact, a type of theft. One is stealing something from the copyright holder.

What did the copyright holder stealing? Not money, certainly... as the copyright holder has no _less_ money than they had before the infringement. But there _IS_ something the copyright holder _does_ have less of: Exclusivity.

Copyright is the _EXCLUSIVE_ right of its holder to copy a given work, and nobody else has any permission whatsoever without granted permission from the copyright holder. If one decides to copy a copyrighted work without permission, they are intrinsically lessening the amount of exclusivity that the copyright holder possesses over the right to copy the work (exclusivity of course meaning that nobody else was supposed to do it). Fair use copying is a concession to the general public that does slightly lessen the exclusiveness the copyright holder has without, in general, impacting the value or worth that it might have. Since such use is explicitly exempt from copyright infringment as outlined in the copyright act, the copyright holder can always be assumed to have agreed to this concession, or else he would not have copyrighted and published his work and nobody would know of its existence. Therefore fair use copying isn't stealing, since the copyright holder has implicitly given permission to copy for such purposes.

But make no mistake.... copyright infringement is most definitely stealing.

Social Contract

[AK Marc]

Copyright is a social contract. The government agrees to protect a monopoly for a limited time in exchange for an idea being released into the Public Domain. The Fair Use clause is a reminder that the materials copyrighted will become Public Domain and is an exclusion to benefit everyone for the limited time where the monopoly is in place. Of course they don't want Fair Use. For one, it is an excuse for users to be able to access the idea they bought in a convenient manner. The content providers want you to re-buy for you DVD/TV, DVD/computer, DVD/PSP, car, iPod, etc. Fair Use explicitly states that you do not need to buy multiple copies of the same thing. Additionally, Fair Use is a reminder of the contract. The Limited Time portion has already been forgotten by Congress. The more the content middlemen can get people to think that their ownership of copyright is a right, the more they can separate themselves and their tactics from the intention of copyright.

I ask myself one question. Do the laws surrounding copyright encourage innovation? My answer is "no, they do not." With that answer, it means that I must necessarily think that the laws regarding copyright are unconstitutional. Innovation is not when Velcro's replacement is held back from public consumption until after the patent on Velcro has expired. Innovation would be releasing it when it is discovered. Many companies hold back the next generation of products until the previous generation patents have or soon will expire. Companies use patents to prevent competitors from making obvious enhancements to their own products. Copyright law is being used to prevent Fair Use and extending the copyright every time it get close to expiring indicates that it is not a limited time. Author's life + 10 or 25 years, whichever is shorter would be more than sufficient for protecting the creator for profit to encourage creation of new content.

Oh, and "Science and useful Arts" does not include business processes.

All of the above

[maynard]

Slashdotters, trollers, and pollsters one and all, what say you? Disingenuous or dissembling?

All of the above. I have the right to use my media as I see fit. What, is he next going to claim that ripping my own CDs is illegal? Pesky "Fair Use", it's holding back commerce and hurting the economy. Hey, we have record executives to feed! They have children to put through ivy league schools! And Hummers to buy! The rabble is getting just too damn uppity, I say. Do you honestly think that's disingenuous?

Sheesh!

Now, if you'll excuse me, I have to go download last nights Frisky Dingo episode.

Doesn't the RIAA represent the rap industry?

[ivanmarsh]

If it wasn't for fair use rap wouldn't be legal.

seriously, more mod up for parent

[Mateo_LeFou]

"Fair use" does not define a certain limited amount of copying that you have permission to do. It defines copying that you do *not have to ask permission for. You can try to prevent "fair use" technologically, but there is nothing in copyright law that prevents my circumventing that technical measure. Now I defer to a smarter man:

(Moglen on the DMCA): "You never read a case, because there never was a case, in which under the copyright law, somebody was charged with a federal legal offence of any kind for writing a book about how photocopiers work or for distributing blue prints of photocopiers or for manufacturing and selling photocopiers. When you see a legal regime that is engaged in trying to charge people for doing those things, you can be pretty sure it's not the copyright law, it's something else. The fact that they put the word copyright in the title doesn't make it a copyright law folks"

Re: Speaking on their history

[shmlco]

"Haven't we paid to upgrade from record to 8-track to cassette to cd to [for some] mp3?"

There are many products that we buy and replace because they wear out (record, 8T), or because newer products offer better quality (CD) or convenience (mp3). If you made most of those conversions, it's because you had a good reason and obtained a clear benefit from doing so. You could have, for example, bought some equipment and recorded all of those 8-tracks to CDR, but the quality would have sucked, and you didn't really want to take the time to do it anyway (convenience). Again, things we often pay for.

This is what makes the transition from DVD to BR/HD interesting, because in one way you may be paying for the "same" movie yet again... but on the other side, it's not the same movie, but a much higher definition, clearer, sharper version.

Worth paying for? Your choice.

yer mistaken

[rodentia]

For example, "fair use" means you can quote a few words from a textbook, but cannot repeat the whole book. "Fair use" also means you can play a few seconds of a song, or a few seconds of a movie without permission or penalty.

You are mistakenly conflating two forms in the statutory basis for fair use: borrowing for purposes of quotation or criticism and limits on commercial exploitation.

It is perfectly legal to spend an afternoon photocopying a complete book in your public library and lugging the reams of 8.5X11 home with you, if your purposes are scholarly or educational and you have no intention of commercial redistribution. Mr. Sherman is pleased by your confusion in this regard and your mistaken guidance to the hoi polloi. In fact, they are relying not upon the deterrent effect of a handful of lawsuits, but the great murk that this tactic generates around these questions in the public discourse.

It is perfectly legal to make complete copies of any copyrighted work provided there is no commercial intent and no restraint of commerce (read: giving them out for free and destroying the market) and anyone who will tell you otherwise is mistaken or lying. Grokster died not because copies existed on its servers or servers it indexed, but because it had no way of guaranteeing that those copies were not commercially exploited or that restraint of trade was not occurring. It purposefully marketed this anonymity of purpose as a value-add.

A dare

[bitspotter]

"Musicians, artists, filmmakers and others won't produce rich, diverse content if they don't believe their creations will be adequately protected from IP theft and other unfair, illegal uses."

BULLSHIT.

PLENTY of artists continue to create and release works under Creative Commons and other open license on a daily basis. Only artists and commercial publishers like the RIAA's clientele won't produce content without restrictive "protections". If they went away, the commons would only grow.

"Threatening" us with the bankruptcy of proprietary artists does NOT serve you well as a useful argument. It makes me want to call your bluff. No more Britney or NSYNC? ...Promise?

Of course, we both know you're not going away. So quit bullshitting.

No - you are wrong on the amount you can copy

[dustpuppy]

Actually you are mistaken as well. There are no hard and fast rules on 'fair use', but it is determined by:

• the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  
• the nature of the copyrighted work;
  
• amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  
• the effect of the use upon the potential market for or value of the copyrighted work.
  

When I studied Copyright Law as part of my engineering degree, it was emphasised that you cannot copy the whole material regardless of whether it was for educational or non-commercial use.

If you want to read more, you can do so at the US Copyright Office website:
http://www.copyright.gov/fls/fl102.html

From that site:

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: "quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported."

Note that nowhere in those examples does it say wholesale copying of a document.

Did you bother to think this through?

[krell]

"Can it be agreed upon that theft is when you take something away, without permission, from someone else so that they no longer possess it, or as much of it, as they had before the theft? Then copyright infringement _IS_ in fact, a type of theft."

No, since the taking away part you describe as necessary is not present in copyright infringement.

"Therefore fair use copying isn't stealing, since the copyright holder has implicitly given permission to copy for such purposes. "

Actually, it isn't stealing, since no form of copying is stealing (whether it is unfair use or fair use)

"But make no mistake.... copyright infringement is most definitely stealing."
BR Ermmm. yeah. Despite the fact that it does not meet the definition. Chalk this up to the weak argument: "copyright infringement is theft because I SAY it is, no explanation necessary."