Google and Microsoft Help To Defend Fair Use

An anonymous reader writes "The Computer & Communications Industry Association filed a complaint this month with the FTC 'alleging that professional sports leagues, Hollywood studios, and book publishers were all using copyright notices that misrepresented the law'. That is, they were aggressively pursuing 'right' that they were not entitled to. Now a group, backed by companies like Oracle, Microsoft, Google, Yahoo, Sun, and Red Hat, has launched a web site called Defend Fair Use that shows they are serious about making the complaint stick. From the article: 'In contrast to copyright notices that take no account of fair use and claim control over "all accounts and descriptions" of a game, the CCIA offers a different copyright notice of its own. "We recognize that copyright law guarantees that you, as a member of the public, have certain legal rights," it says, "You may copy, distribute, prepare derivative works, reproduce, introduce into an electronic retrieval system, perform, and transmit portions of this publication provided that such use constitutes 'fair use' under copyright law, or is otherwise permitted by applicable law."'"

Comments

About...

[netscan]

God damned time

Of course....

[i.r.id10t]

Of course, at least one of those companies is selling/making money from systems that won't allow you to exercise your fair use rights...

Re:Of course....

[Elemenope]

I have the right to print a publicly distributed newspaper; however, I can't do that, because I don't own a printing press or the means to rent the use of one. Just because you have the legal right to do something doesn't mean you have the resources or tools to make good on that right. There is no logical conflict between a company defending a legal right for a customer to do something, while also failing to provide the technical means to exercise that right, or even placing technical hurdles to exercise it.

Nobody said it would be easy.

Re:Of course....

[truthsearch]

There is no logical conflict between a company defending a legal right for a customer to do something, while also... placing technical hurdles to exercise it.

How is that not a conflict? They're countering their own defense of the right. I agree they have no obligation to provide the tools, but they intentionally (actively) cripple the tools they sell to prevent fair use. They spend money creating the hurdle. They also attempt to counter fair use rights in their own software licenses (i.e. legal hurdles on top of technical hurdles). Seems like a logical conflict to me.

Re:Of course....

[coryking]

Of course, at least one of those companies is selling/making money from systems that won't allow you to exercise your fair use rights... You think any of them want to do that? You think Microsoft is happy they had to pour a gazillion dollars into some cockeyed DRM scheme dreamed up by coke snorting clowns?

Microsoft would be pleased as punch if customers could buy hi-def capture cards from Fry's that can plug into any computer and work with MCE. They would be giggling like school girls if a beige-box PC could record hi-def HBO without a set top box like Tivo. Google would be pleased as punch if you downloaded the show from them instead of used the hi-def capture card. Apple wants you to buy the latest "New Kids on the Block" single from their online store. RedHat wants all of the above to work on Linux.

All these companies are pissed because they cannot get access to the media their customers desire. While it may seem like all these companies, especially Microsoft, "support" DRM schemes, trust me they don't. Would you want to piss away a bunch of your developers time writing in crazy DRM crap that only keeps your company from innovating?

Re:Of course....

[Marxist Hacker 42]

I'll believe it the day Microsoft includes the above language in Vista's EULA, not before.

Re:Of course....

[Marxist Hacker 42]

I have to wonder what use of software would fall under "fair use" guidelines.

Educational & backup copies, of course. And of course, derivative works, for stuff that is open source to begin with.

Then again, I have to wonder why we treat software as similar to music and literature by placing it under copyright scope in the first place. If software needs a form of IP protection, copyright is the wrong fit, and fair use just makes that all the more evident.

That's strange, I'd argue exactly the opposite- that patents are a wrong fit, as evidenced by the LACK of fair use since software patents have been applied.

To the broader topic: That a company is not required to provide for your fair use is established law, true. Of course, that concept predates the DMCA. The DMCA takes us out of balance by introducing the infamous anti-circumvention clause. Under this clause, not only must I respect the rights of the copyright holder, so must any technology in which I traffic. Not so with fair use -- I can traffic in technology that tramples the consumer's fair use right (per prior law), but not in technology that might be used to trample the copyright (per the new law).

Correct. But also, given fair use (as predated the DMCA, which completely trampled fair use) the consumer's right to fair use should give them the ability to say, make an ISO file of any CD they own.

Most fair-use advocates assume that the best solution to restore balance is to elmiinate the anti-circumvention clause. This returns us to the world of yesterday, where the most technologically capable among us have exercisable fair use rights and the rest of the citizens don't; except that DRM schemes are ever more complex, resulting in an even higher technical barrier to entry into the world of the fair-use "haves".

True enough, though I'd argue that for the widest form of fair use (multiple copies supplied to a classroom for educational purposes) any reasonably well-funded school should be able to circumvent easily (by using nearly identical hardware, thus defeating the "license keyed to specific hardware" algorithm), and have done so for non-circumvention reasons (for ease of maintenance- every computer in a classroom should have identical and interchangeable parts).

But there's another way. Keep the anti-circumvention clause, but add a new clause. Make it illegal to traffic in technology that abridges fair use. If it's illegal to make tools that violate one right, make it illegal to create tools that violate either right. Restore balance. And at the same time, give everyone the ability to exercise their fair use rights, regardless of individual technical knowledge.

Interesting idea that- which would make Windows Genuine Advantage illegal tech....

Re:Of course....

[Anonymous Coward]

Hence, Microsoft's actions here are, conceivably, entirely consistent with one another.

Consistent, but hypocritical.

Consistent in that the actions both lead to more profit.

Hypocritical in the sense that the rhetoric they use to defend one set of actions contradicts the rhetoric they use to defend the other set of actions.

Microsoft's action are logically consistent, but their rhetoric is not. (Also known as being a liar.)

Google and Microsoft in it together?

[garnetlion]

Google and Microsoft? Going above and beyond the call of "Don't be evil"? Together?

Wonders never cease. Nice work.

Re:Google and Microsoft in it together?

[BoberFett]

It shouldn't really be surprising. Neither Google nor Microsoft have much of a stake in content creation. What they have in common is creating systems which aggregate and display content. If the NFL had it's way you wouldn't be able talk to your co-workers about the previous nights game. That would definitely get in the way of both companies' business model.

Re:Google and Microsoft in it together?

[oatworm]

Dr. Peter Venkman: This thread is headed for a disaster of biblical proportions.
Mayor: What do you mean, "biblical"?
Dr Ray Stantz: What he means is Old Testament, Mr. Mayor, real wrath-of-God type stuff.
Dr. Peter Venkman: Exactly.
Dr Ray Stantz: Fire and brimstone coming down from the skies. Rivers and seas boiling.
Dr. Egon Spengler: Forty years of darkness. Earthquakes, volcanoes...
Winston Zeddemore: The dead rising from the grave.
Dr. Peter Venkman: Human sacrifice, Google and Microsoft working together - mass hysteria.

Re:Google and Microsoft in it together?

[UbuntuDupe]

If the NFL had it's way you wouldn't be able talk to your co-workers about the previous nights game.

It seems that major sports leagues are given special legal status in general. For one, they're exempt from antitrust laws. (Not that I like anti-trust laws, but selectively enforcing them can be worse.) For another, they seem to have additional rights to the content of their games beyond what IP law normally grants. Like, if I watch a game and stream my commentary about it so people can listen as they watch with the official broadcast's sounds muted, I'd be shut down in a heartbeat. But if I did the same thing to the e.g. Kasparov/Deep Blue chess match, IBM couldn't stop me if they wanted to.

Re:Google and Microsoft in it together?

[kebes]

Well, it is a bit surprising.

Neither Google nor Microsoft have much of a stake in content creation.

Google's entire business is based upon fair use, so they have a stake in defending "reasonable" copying (fair use, indexing, etc.). Microsoft, however, have a business model that relies on people paying for copies of their copyrighted software. For instance, they make money when restrictions force a person to buy multiple copies of software. (E.g. lost your backup copy, it's illegal to download a copy off the net even if you already bought a real copy, so you have to buy another copy...)

Moreover, with Microsoft in the video game market (both on PCs and via the XBox), they are very much implicated in the content-creation game. Microsoft also has a history of helping the media companies achieve their aims, such as agreeing to a per-unit fee on the Zune or implementing DRM in Vista. If Microsoft was actually serious about defending fair use, their operating system would make fair use easy instead of making it onerous.

The more I think about it, the more surprising this move on Microsoft's part becomes. I guess it just comes down to Microsoft being a company so large (and poorly guided?) that different divisions can have wildly different priorities. Some parts of Microsoft would also love for you to pay a fee everytime copyrighted content is transmitted, viewed or discussed. Other parts of Microsoft only have value so long as fair use is protected.

In any case, I expect their support of fair use to be one of convenience, and hence tenuous at best. Google, on the other hand, are a valuable example of fair use being innovative and driving the economy.

It's a trick...

[Loosifur]

"Self-interest might well be among of their motives, too, as companies like Google and Microsoft are routinely sued over copyright-related issues. Defending fair use might be good for consumers, but it might turn out to be good for business as well." ....get an axe.

Re:It's a trick...

[thatskinnyguy]

It's not like they haven't violated copyrights... they just got better attorneys.

The enemy of my enemy is my enemy.

[Spy der Mann]

This Microsoft + Google alliance reminds me of that episode of He-man, where He-man and Skeletor have to join forces to save Eternia from this interdimensional monster - or when the guys from Dungeons n Dragons have to help Venger defeat Tiamat.

This is getting sooo interesting! *grabs some popcorn and enjoys the show*

Re:The enemy of my enemy is my enemy.

[Elemenope]

You blew a geek fuse; I can smell the fried childhood from here.

Re:Sounds good!

[Silver Sloth]

You might have one or two minor problems persuading a court that "tape recording/ripping movies and putting them on the internet" is fair use

History Repeats Itself

[argmanah]

It sounds like those entertainment lawyers DCMA'd one too many people. The lawyers start letting the fact that they were able to trample on the little people get to their head and eventually piss off someone big enough and with enough teeth to fight back. When SCO declared they were going to start charging $699 Linux licenses, it was the little guys who were concerned. Then they picked on Novell and IBM and look where they are now: Litigated into oblivion.

ZOMG THE IRONY!

[kimvette]

Am I the only one finding it ironic that Microsoft is demanding that Fair Use be recognized, while shutting down Autopackager and infringing on the right of first sale, even in cases where the software isn't even opened?

Sorry, I'm just frustrated that I spent thousands on two MSDN subscriptions and have been trying to activate them for a week, and have spent over 115 minutes on the phone, with the last two calls assuring me with 100% certainty that the problem is now resolved, only to discover they are STILL not activated and I have to call them yet AGAIN. GRRRRRRRRR!!! This is why I run Linux for everything except for client projects. Ugh.

Re:Sounds good!

[GeckoX]

Fair use part...ie: It's ok for personal use.
It is not ok to distribute it via an electronic retrieval system however.

This actually gets right to the root of the real problem we've been having...RIAA et al have been arguing that ANY copying/storing/ripping etc is illegal, when the law gives us the provision to do whatever the hell we want with them...for our own personal use. Just not distributing them.

This could go a long ways towards clearing things up and giving us back our legal rights.

Re:History Repeats Itself ... In six hours?

[TaoPhoenix]

Didn't we decide this morning that Viacom has a shaky case for exactly this reason?

Copyright EVERYTHING and destroy it all!

[ThanatosMinor]

If everything were copyrighted (most things sort of implicitly are), and we upheld MLB's version of Fair Use, then lawyers' motions would be copyrighted and as such could not be discussed by other lawyers or judges. Nobody would be able to talk about anything that had been written down or produced in any way. One could even claim that all speech is a derivative work and we could only use words and letters that hadn't been used in the same combinations anyone has used in the last half century!

Nobody would be allowed to do anything because they would be sued by people who wouldn't be allowed to sue!

Now that I think about it, such inability to enforce anything would be like having no copyrights at all. One end of the spectrum is exactly the same as the other. Too bad circles are copyrighted.

Maybe they can start with karaoke?

[t0qer]

Quick summary...

Karaoke is about 10 years behind the music industry, we *just* started getting PC based karaoke systems rolling.

2 karaoke companies have decided that copying a karaoke disc to your PC isn't covered under fair use laws. Below are their press statements.

ANTI-PIRACY CAMPAIGN STATEMENT 12/28/06

Stellar Records in a collaborative effort with some of its clients,
customers, law enforcement agencies, and in some cases even its competitors has
stepped up its campaign against piracy. As part of this campaign, Stellar will be
directing much of its attention at the venue level and soon will be taking
steps to notify suspected venues as to the potential risks and hazards
involved when using unauthorized copies of Stellar Records products.

Stellar Records, its customers, clients as well as several of its legitimate
competitors have been damaged considerably through the illegal copying and
distribution of their products, as well as other acts of piracy, some of which
pertain to the violation of trademarks that are also the property of
Stellar Records.

Prior to pursuing any further action, we do recognize the possibility that
at least some venues may not be aware of these violations and may be engaging
in these activities unknowingly. Hopefully this communication will provide
the information necessary in helping to determine if the use of a Stellar
Records product is authorized, or in any way infringes on its copyrights and/or
trademarks. At the very least, we hope this will provide the impetus to seek
legal advice on these matters before continuing to engage in these practices.

To be more specific, it has been brought to our attention that there are
several venues in the Phoenix and Scottsdale area that have been promoting
karaoke shows which are using unauthorized copies of karaoke products either
directly through the use of in-house systems or vicariously through the
contracting or employment of KJ/DJ hosts and/or hosting companies. Some of these
products have been identified as karaoke products containing the copyrights and/or
trademarks of Stellar Records including products bearing the trademarks "
Pop Hits Monthly", "Top Hits Monthly", or "Stellar Records". In addition it
has been suggested that there could be other products containing Stellar
Records' copyrights and/or trademarks being illegally distributed, and an
investigation is currently under way in an effort to identify those products as well.

In order to assist those in determining what constitutes an unauthorized use
of Stellar Records' products, please be advised that Stellar does not
support nor does it have the authority to support (due to contractual limitations
in its licensing agreements with various publishers) any device which stores,
and/or plays karaoke products from a hard drive or any device other than a
device that plays directly from a CD+G disc. For example products include but
are not limited to the CAVS JB199 as well as the RSQ-500 when play back is
not directly from a CD+G disc. There are a number of software based products as
well like MTU's Hoster, PCDJ, CompuHost, TriceraSoft, Sax N Dotty Show
Hoster, and Dart just to mention a few, when play back is not directly from a
CD+G disc.

Stellar Records does empathize with the concerns of some of its customers
who may want to make copies of their legally purchased products for the
purposes of making back-ups or to rip them onto a hard drive in a more convenient
format. However we do not have the authority to grant anyone the right to do
so. Most if not all of our karaoke products contain the copyrights owned by
parties other than Stellar, namely the writers, authors and/or publishers of
the work (song) itself to which we must seek prior approval for use in
producing our final karaoke products. The licenses and/or approvals that we secure
from these publishers do not include the right to distribute t

Companies fighting companies

[Weaselmancer]

It's great, but a long way from anyone defending personal fair use. This is just corporations fighting over who gets to disseminate sports scores. In short, companies fighting over money. Just using fair use as the angle of attack.

Wake me when the megacorporations start fighting for my right to rip my CDs and play them on my MP3 player.

Re:Companies fighting companies

[geekoid]

Fair use for people is in Googles and MS best interest.
Of course, I still can't figure out why MS cares about the entertainment industry. They would save a lot of money if they just said "Screw DRM it's not worth it." Let the entertainment industry deal with it.

Re:Companies fighting companies

[eison]

They are trying to make a bazillion dollars on a search engine. Search engines live or die on fair use, because they need to cache and quote other people's copyrighted work in order to get their job done and make $$$.

Re:Sounds good!

[BoberFett]

Yep, it might bring DVD ripping and disc free media servers back into the spotlight. If I recall there was one company who was able to away with it through a loophole in their contract with the DVD consortium, which was promptly sealed. Though that may have changed, I haven't stayed on top of that area. Thanks to DVDDecrypter and AutoGK all my movies are sitting on a server and the DVDs are sitting in a box in the basement.

And once media servers become widely accepted, maybe we can stop worrying about crap like HDDVD and BluRay and just be able to watch the damn movie without having to pick sides in some ridiculous format battle.

Re:"You may copy...."

[Overzeetop]

Well, you could say...

"Provided that such use constitutes 'fair use' under copyright law, or is otherwise permitted by applicable law, you may copy, distribute, prepare derivative works, reproduce, introduce into an electronic retrieval system, perform, and transmit portions of this publication."

But I suspect any watered down language would take the negative approach to remain in good standing with the law...

"You may not copy, distribute, prepare derivative works, reproduce, introduce into an electronic retrieval system, perform, or transmit any portion of this publication unless such use constitutes 'fair use' under copyright law, or is otherwise explicitly permitted by law."

And, for good measure, (and if there's time or screen space), they'll add "Any intent to apply or exercise of fair use rights shall be sumbitted in writing to the content license holder prior to such use, and approval or denial shall be determined at the sole discresion of the content holder except as determined in a court of law."

See, now wasn't that easy?

Re:We can only hope

[digitalaudiorock]

Could this be a reversal of Microsoft's prior stance on DRM, wherein they fellated the movie and music industries despite the consumer electronics industry being far larger and far more consumer-friendly?

Nah. Speaking of DRM and the like...I'd be interested in hearing the official CCIA position on the consumers right to backup CDs and DVDs, especially given that the DMCA frequently seems void fair use in that case. It'd be really disappointing if their position was in support of fair use only when it doesn't violate the letter of the DCMA. That would be pretty hollow at best.

That will last right up until somebody offers

[crovira]

them some money for their content (nobody EVER turns down money.)

If I was asking them for a PRICE for their Karaoke CDs/DVDs to play in a PC based player, I bet that I'd be able to license it.

That can't be true...

[mattgreen]

That explanation is REDICULOUS(sic). I have a far more reasonable one, so allow me to elaborate.

Everyone *KNOWS* that Microsoft enjoys being evil precisely because they are evil! Or, at least, that is what people around here have told me. I have a feeling the people in Redmond drive into work like everyone else, but once they get into work, they start smiling. When they finally start working, they are chuckling to themselves: "Haha, its time to SCREW OVER THE WORLD! I can't wait to subtly break everything we've made, and inconvenience hundreds of thousands of users!" Because evil has this amazing ability to attract other forms of evil, thus allowing it to compound faster than one would expect, evil alliances are formed with alarming regularity: "Hmm, its Thursday, we should find a KKK club to sponsor since its been rather quiet this week." Naturally, everyone drives cool cars around the campus. Bill Gates is known to be able to fly, teleport, and destroy someone with a single thought of the mind. But few actually get close enough to him to observe these things, unfortunately.

I am sorry that this information is so long in coming. But I am glad I decided to post it on a site that is a beacon of truth, logic, and unbiased opinions.

Logical, cynical.

[Scrameustache]

There is no logical conflict between a company defending a legal right for a customer to do something, while also failing to provide the technical means to exercise that right, or even placing technical hurdles to exercise it. Yes there is a GIGANTIC logical conflict between defending a right and going out of your way to make it as hard as possible for someone to excercise that right.

If someone says that they defend my right of way, but place their car in my path so that I cannot proceed, I will not believe their statement, because actions speak louder than words and their deed is incompatible with their words.

And when a company who has invested their precious money into assuring that only geeks can enact their rights by using their software, because only geeks can overcome the hurdles they have chosen to spend man hours on implementing, I will not believe them when they say they defend our rights. I will believe that their legal expenses related to those rights have now exceed the profits they intended to make by denying to their customers the means to excercise those rights.

There is a gigantic difference between "I defend your right on principle, but I will not intervene on your behalf" and "I defend your right, but I'll intervene so that you may not act on them if to the extent of my abilities". They took the initiative to place an obstacle, that is not compatible with a claim of intent to defend the right, not at all.