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.'"

Comments

A non-lawyer indeed

[AKAImBatman]

As a nonlawyer, I think these clips seem like "fair use," an old copyright concept that seems to have weakened under the advent of the new laws. 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.

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.

IANALI - I am not a lawyer indeed

[MrSquishy]

<larger_work>Direct copying of even a small snippet is very much illegal if there is no larger work around it.</larger_work>

Your content, your rules?? Within limits

[davidwr]

My content, my rules. There are a LOT of things I can do with your content without your permission.

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.