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Congress Must Make Clear Copyright Laws
WSJdpatton writes "WSJ's Walt Mossberg takes a look at what's wrong with the DMCA and DRM given the recent lawsuit brought against Google's YouTube by media giant Viacom — 'Under fair use, as most nonlawyers have understood it, you could quote this sentence in another publication without permission, though you'd need the permission of the newspaper to reprint the entire column or a large part of it. A two-minute portion of a 30-minute TV show seems like the same thing to me. But why should I have to guess about that? What consumers need is real clarity on the whole issue of what is or isn't permissible use of the digital content they have legally obtained. And that can come only from Congress. Congress is the real villain here, for having failed to pass a modern copyright law that protects average consumers, not just big content companies.'"
I'm afraid that our friend over at WSJ misunderstands the law a bit. The length or exact portion of the copyrighted material does not matter. In fact, the key issues that a judge looks at is if the use is necessary to the contested work, and if the contested work shows enough original thought to be considered a separate entity. Direct copying of even a small snippet is very much illegal if there is no larger work around it.
For example, if I had only quoted that paragraph above and smacked the "submit" button, I'd be guilty of copyright infringement. I'd also be looked upon as a tool by the Slashdot community as a whole. But by including this commentary about the quoted work, I'm creating a greater work that requires the fair use of someone else's work. And Slashdotters get to decide whether I'm a tool or not based on the opinions I state in the larger work rather than some silly action.
It's the same for videos. Taking a 2 minute clip and copying it verbatim is pretty much copyright infringement. Using that same clip for purposes of video or text commentary, on the other hand, would be perfectly acceptable "fair use". Similarly, creating a fan trailer, a movie review video, or generally commenting on the state of whatever would also allow you to make fair use of the video clip.
However, one does need to keep in mind that a judge will consider whether the entire clip is necessary or not. If you put up the entire interview of Bill Gates on the Daily Show just to comment on how funny the cat's name portion was, you're still guilty of copyright infringement. A judge would be likely to find that you were using simplistic commentary to try and cover over your infringement, and that showing only the part dealing with the cat incident would have been sufficient to make your point.
Now, with that out of the way, I'd like to point out that the DMCA is actually a positive in this situation. (I know, I know. How could I defend Slashdot's favorite whipping boy?) The Safe Harbor and common-carrier provisions of the law ensure that sites like Youtube can exist. Without those provisions, Viacom would have a much stronger case against Youtube.
Standard Disclaimer: I am not a lawyer, only an individual with an interest in the law.
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The big companies get to lobby 24/7 and 365 if they want. Consumers only get to lobby every four years, and not enough turn out to vote, and make their preferences felt.
<larger_work>Direct copying of even a small snippet is very much illegal if there is no larger work around it.</larger_work>
How frigging naive can you be? The Congress that passed the DMCA without opposition, that passed the "No Electronic Theft Act", the Congress which has been extending the scope and duration of copyright for decades, the Congress which is fully in the pocket of the xxAAs, THAT Congress is going to pass a new copyright law which protects the little guy?
No, Walt, that just ain't going to happen. When the other side suggests that the answer is just to follow the law and if you don't like it, get the law changed, I know that's just gloating over the power they have. When someone who opposes the status quo says it, and it's not credible that they are really that naive, I have to wonder what is going on. Are they so afraid to believe the system is broken that they cling to ineffective measures? At what point, Walt, will you say "To hell with it, the system's broke, raise the Jolly Roger and copy away"? Never? Then you may as well throw your lot in with the xxAAs.
There's FOUR solutions:
1) Suffer loudly. Follow the restrictions and complain about them. Unless you're a major public figure, nobody gives a shit about your complaints, so if you do this, the xxAAs win.
2) Suffer in silence. Follow the restrictions and don't complain about them. This is the xxAAs favorite solution. Equivalent to 1 if you aren't somebody big.
3) Pirate loudly. Violate the restrictions openly and notoriously. Best case, you get what you want but otherwise nothing changes. Worst case, you lose your freedom and your life savings, and your name becomes a word to scare other would-be pirates with -- the xxAAs win with that. And no one who hears about it who matters supports your case -- civil disobedience does not work when the issue is esoteric, and even less so when your opponents are the media.
4) Pirate in silence. Violate the restrictions and try not to get caught. Same outcomes as 3) above, only the worst case is less likely.
The outcome where the copyright laws are changed for the better and those irritating digital restrictions go away? Sorry, that outcome is simply not available. No matter how many times Don Quixtote tilts at the windmill, the windmill still stands. The only way to get rid of the restrictions is self-help, and that means violating the law.
And as for "steal the stuff"? Just because they bought a law doesn't make it "stealing". I'll give them the term "piracy", because everyone knows the difference between piracy on the high seas and copyright violation. But calling it "stealing" isn't intended as metaphor; it's intended to actually blur the distinction.
I can parody it.
I can use it in satire.
I can use it, with limits, for educational purposes.
In some cases I can make backups.
If I've purchased it on a media and never broken the seal, I can usually resell it under the doctrine of first sale. In some cases, such as a book, this applies even after I've read the book.
I can wait for the copyright to expire and do pretty much whatever I want with it.
I've left a few things off the list, researching copyright law is left as an exercise to the reader.
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Is it possible this is symptomatic of a larger issue with our legal system? Specifically, when laws get so bloated, so numerous, and so detailed that it requires a specialized degree to understand, how is the average citizen supposed to comply with the law?
The summary asks "Why should I have to guess about that?" But this is hardly the only area where statutes on the books are virtually incomprehensible, if they can even be easily accessed, by a nonlawyer.
A quick offtopic example is when my driver's license was suspended, and the judge said it would be suspended for 90 days. Fine. To me, that meant that on day 91, it was no longer suspended, and I could drive. Long story short, I got caught driving on day 92 and arrested for driving on a suspended license -- because I hadn't paid a "reinstatement fee". Now, how was I supposed to know about that? When I posed this question to the court I was told only that "it's the law".
I realize there will always be certain circumstances or specific areas where laws need to get detailed and intense, but for the majority of things the average citizen is going to do, there is a problem if that average citizen cannot comply with the law because he cannot access it or cannot understand it.
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Further, once your "content" is displayed/performed/exposed, you can't take it back. Therein lies the biggest motivation for the whole of copyright legislation. Without it, we as a society would end up being a bunch of information hoarders. There would be no open exchange of ideas. There would be no derivative works. Information would be exchanged under contract and NDA between interested parties. There would become a horrible social rift between the information-haves and the information-have-nots.
Copyright is a contract between you, the content producer, and "we the people." In exchange for a short-term monopoly, complete with "force of law" coverage, you agree to contribute said production to the "we the people" at the end of the term. During the short-term monopoly, it's up to you to make a buck (or not.) There's no guarantee of profits. You aren't entitled to anything other than fair treatment under the law.
Unfortunately, the **AA and their ilk are in material breach of this contract. Many works should have entered the public domain by now, but through lobbying and outright bribery, the content distribution cartels have stolen that content from the people. And yes, "stolen" is the correct word to use here, because I am deprived of access to the content. I've also paid taxes supporting the copyright enforcement during the term of the original agreement, so I'm out financially as well.
Finally, you're not obligated to participate in the copyright program. You're welcome to hoard information in your vault. You're also welcome to produce a work that is contributed directly into the public domain without restriction. You shouldn't expect compensation in either case. The current crop of content dstributors seem to think that they're entitled to something. They're not.
Compare to a natural right; you cannot sell or purchase the right to free speech. Similarly, the government cannot take it away because it does not grant it.
The Constituion is pretty clear. It grants the Congress the ability to create copyright. Congress grants you that privilege, in exchange for it being public sometime later.
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First, allow me to make clear that my original post does not address this matter. It was intended as a response to the WSJ author, and not a complete tretise on the state of copyright law. These screwy issues that people are coming up with are so far off the topic at hand as to be ludicrous.
;-)
Now, to answer your question. (To the best of my ability.) And that answer is in the form of a question, "Why did she pick the NFL Legal clip in specific?"
If you consider that question in detail, it should become obvious that the Legal clip shouldn't be copyrightable material. After all, it's a statement of fact. Why can't we share statements of fact? The answer is that we can freely share statements of fact. Copyrights are only provided for creative works. An impassioned speech given on the events of the Revolutionary War would be considered a creative work that derives from factual events. So it's copyrightable, though anyone is free to relate those facts in their own words. On the other hand, a statement of fact document in a legal case is pure fact, and is not a copyrightable work. (Not that such a limitation has stopped lawyers from trying to claim it's creative.)
So looked at as a whole, Ms. Seltzer's act was a very calculated maneuver intended to expose the problems with Viacom's position while simultaneuosly ensuring minimal legal liability. That's why she's the law professor, and I'm just a guy on Slashdot.
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