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Copyright Alliance Says Fair Use Not a Consumer Right
KingSkippus writes "In response to a complaint to the FCC filed by the Computer and Communications Industry Association (CCIA) to change copyright warnings before movies and sporting events, Executive Director Patrick Ross of the Copyright Alliance tells us in an editorial that 'fair use is not a consumer right.' The Copyright Alliance is backed by such heavy-hitters as the MPAA, RIAA, Disney, Business Software Alliance, and perhaps most interestingly, Microsoft, who is also backing the CCIA's complaint."
It's the new axis of evil. MPAA, RIAA, Disney, Business Software Alliance, and Microsoft. It's a rogue's gallery of the companies that we hate for their jack booted tromping on the little guys. I guess they are conveniently ignoring copyright law as written when it comes to fair use. Next step massive lobbying in congress to change it. Naw, they'd never be able to buy our upright legislators...would they?
"Do the Right Thing. It will gratify some people and astound the rest." - Mark Twain
Fair use is a defense against copyright infringement suits. It is not some "inalienable" God Given right like free speech or freedom of religion. Meaning you can exercise fair use, and if someone sues you and court determines it was fair use, you're OK. However - you have no "right" to it in that if a company, say, prevents you by means of technical steps from making "fair use" of materials, you can't sue them and in fact can't do anything about it.
The only reason that we issue copyrights and patents is to encourage producers to create and invent new works. Copyright isn't a right at all, it's a privilege which we the people grant to copyright holders, for limited times, for the benefit of the public.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
You don't have to have lots of money to be evil, but it sure helps.
"Do the Right Thing. It will gratify some people and astound the rest." - Mark Twain
Last time I checked, Copyright, was not a "god-given" or even constitutionally guaranteed right. Copyright is a right granted by the people, and it is a right that can be revoked by the people. The right was granted for a temporary (repeat, temporary) monopoly to a given work, in exchange for a public record to be kept in the library of congress, stored for future generations. In addition, copyright included provisions to not harm the common citizens for utilizing their own copies of such works as they see fit. Otherwise, copyright holders could impose ludicrus and rediculous limitations, such as "if you watch this... no, if you even recieve a copy of this, watched or not, you must agree to sleep with the director" and, if these guys have their interpretations of copyright forced on us, we would be obliged!
So, I shall be publishing a short copywritten piece shortly with just this provision in it, and if anyone knows the guys behind this push, feel free to send copies to them, I insist....
Karma Whoring for Fun and Profit.
Congress can make an exception to protecting our rights to free expression (like copying someone else's expression) where economics requires exclusivity of some expressions to promote progress in science and useful arts. But only where necessary for that promotion of progress, and only for limited times - and only to authors and inventors. Not when economics doesn't require the exemption. Not for unlimited (or so long that the limits are effectively meaningless, or renewable) times. And not to record labels, which are neither authors nor inventors.
The "fair use" isn't some exception to copyright. It's the basic right, to free expression. In recognition of its nonthreat to progress, the exclusivity, the artificial monopoly that Congress can create, doesn't apply to that free expression.
The whole copyright exclusivity is obsolete. There's a case for very short times for exclusive exploitation, different lengths for different media, before the content becomes folklore. But these Copyright Alliance creeps are just thieves. Using our government against us. Trashing the First Amendment we use to get our government to protect us. And exploiting beyond any defensible reason their license to mint money that they find in Article I.8.
Let's take them up on their offer to start over. And strip down these artificial government monopolies to actually promote science and the useful arts. 17 years for books and songs, shorter for the rest, maybe a day for news, maybe 15 minutes for financial news. That's progress.
--
make install -not war
Copyright is a temporary suspension of the free speech rights of others. It was intended by the founders as a short-term suspension of free speech in order to encourage authors / artists and provide them with a livelihood during their lifetime. It's long past time to reign in perpetual copyright and return it to that original limited form.
[Insert pithy quote here]
Actually, yes we do.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
I'm kind of worried about the sort of language being used nowadays. In the media, and by corporations, people are increasingly being referred to as 'consumers', whereas in the past they were more referred to as 'citizens'. I think this kind of language subtly displays a sort of attempted disassociation of people with their rights through getting them to think of themselves not as citizens, with all their inalienable and somewhat inconvenient (for corporations) rights, but mere consumers of products with somewhat more alienable "consumer rights", belittling them in the process. Merely using the term "consumer rights" implies that they are somehow separate from "citizens rights". This has shades of the somewhat fascist book "Starship Troopers" IMHO, with its distinction of citizens and civilians.
The argument that Ross appears to make is a non-sequitur. He says that fair use is not a consumer right because it is an affirmative defense to copyright infringement. There's no connection between the two. For those who don't know, an "affirmative defense" is a defense that does negate an essential element of the charge. For example, if you are charged with murder, one defense that you could offer is the prosecution hasn't demonstrated that you were the one who committed the murder. Another defense would be that the prosecution has not shown that a homicide occurred (if, say, there is no body). These are non-affirmative defenses because all the defense has to do is to argue that the prosecution has failed to meet some part of its burden. Another defense to a murder charge is self-defense. Self-defense is an affirmative defense. The defendant admits that a homicide occurred, that he or she did it, etc., but argues that he or she is nonetheless not legally responsible.
In the case of copyright infringement, civil or criminal, fair use is an affirmative defense because the defendant admits the elements. He or she says: "Yes, I copied material whose copyright does not belong to me", which is the essence of copyright infringement, but its okay because the use was of a type that the law acknowledges as acceptable, just as self-defense is an acceptable reason for killing someone.
There is no reason to suppose that there should be a connection between whether a defense is affirmative or ordinary and whether it is a right. For example, surely self-defense is a right, but it is nonetheless an affirmative, not ordinary, defense. So the mere fact that fair use is an affirmative defense does not show, as Ross seems to think, that fair use is not a right.
The possible grain of truth in what he says is that the fact that fair use is a defense to copyright infringement does not mean that it is a right whose violation is actionable. Statements that describe copyright infringment in absolute terms, without mentioning fair use, are inaccurate, and possibly constitute deceptive advertising, but whether consumers have a legal right to fair use that makes technical measures, such as DRM, that interfere with fair use, actionable, is unclear. There is a colorable argument that there is a fair use right in this sense, which is what the plaintiffs are arguing, but it is also true that this has not been established in court.
So, insofar as Ross is claiming that there is some sort of connection between the kind of defense provided by fair use and whether it is a right, he is wrong, but insofar as he is just claiming that the provision of fair use as a defense does not make it a right, what he says is true. I personally think that fair use is a right, for First Amendment reasons, but this right flows from the First Amendment and not from the fair use provisions of the copyright statutes.
movies aren't. the movie house business is going gang busters, but the dvd after market will fizzle (which evolved from the vhs aftermarket, which these same morons fought with the same rationalizations you hear now, 30 years ago, lost, and came to embrace the vcr as a cash cow. nice foresight, x2)
music will become something people only pay for to go to live concerts. all other music will be freely traded, and musicians will make money from advertising and abovementioned concerts. no, it's not jayz money. as if that was ever a prerequisite for the desire to make music
the only people who are losing are the economic middle men. all we hear are the cries of their death throes. zzz
let them lock up their copyrighted works with all of the advanced tools of copyright protection they want. #1: it's easily defeated anyway. #2: much like newspapers have learned, it's all about accessibility. so let the morons make their product inaccessible, and reap the fruits of that genius strategy in a new world with new rules
all we hear are from idiots in media companies who don't understand what the internet means to their business, or desperate men who do understand what the internet means to their business: it's killing it
oh well, who cares. sucks to be on the losing side of history
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
FTA: "So, how exactly would the FTC rewrite these copyright notices to reflect a consumer's ability to attempt a fair use defense? Should they paste in all of the above language? We're wading into the area of providing legal advice"
He is basically arguing that Fair Use is so complicated that explaining it to people constitutes legal advice. Yet he admits that the notices currently in place are simply scare tactics.
"these warnings do exactly what they're meant to do--notify consumers in a succinct fashion that infringement has legal consequences."
In essence, he's saying "Our rights are easier to describe than yours, so we'll forget about yours."
I...I'm attacking the darkness!
"Sure, it's always been there, but the stench seems to be getting stronger..."
The only difference is that the conduit by which that stench gets communicated to the public now has greater bandwidth, thanks to the internet. For now.
If I have seen further it is by stealing the Intellectual Property of giants.
Dear God, I pride myself on being a right wing troll, and I am capitalist to the core, but when companies start a public campaign to deceive citizens into thinking they have no rights in order to make a buck, then a line in the sand must be drawn.
The fact is very simple - corporations have less of a right to exist than consumers have of a fair use in copyright, and, even more importantly, the desirability of corporate profits does not entitle them into twisting laws to create an oligarchy. Capitalism exists as an American system to benefit the American people, and not the other way around. Corporations are no more entitled to rent seeking and guaranteed profits than a lazy man is entitled to a government check. If corporations want to earn more money, then they should be compelled to invent new products and new services, not attempt to bend the will of the government and the soul of the people into being enslaved into old products, old services, and worst of all, old ideas.
My fellow Republicans need to be reminded that to be a genuine conservative is to value freedom first and foremost. From that freedom we do have a prosperous society, yes, but prosperity is not why we value freedom and we should not let our greed rule deceive us into believing that the point of freedom is profits for someone else. There will come a time, and it may be soon, when we have to choose between freedom versus wealth, and we can only hope that men of good conscience will have to see that the former is always priceless.
This is my sig.
And copyright protection is not a producer right either then.
There is zero reason why they should be given any extra protection by law then. It should be the companies' responsibility to think of the methods of protecting their idea/IP. If joe public is not allowed to have fair use, no reason why *our* tax money should go towards wasting time of courts funded by us, to help out these companies. Let them spend their own money on trying to devise methods to prevent competitors from copying off their idea.
The whole idea of copyrights and patents was for the benefit of the public, not for the companies, by encouraging invention and arts for the benefit of public. the whole deal is null and void if they want to renegade on their part.
If the joe public must pay for everything, so must they.
I'd love it if I could go back to ebooks, but I will not until they fix (or eliminate) their horrible DRM scheme.
p x
m ons.aspx
s tation.aspx
I am a very satisfied customer of Baen ebooks. Baen does it right.
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That latter deal they call "Webscriptions". If you buy a really new book, the webscription might include only part of the book. Over time, more of the book is revealed, and finally the whole book is available. But as long as you are buying a Webscription monthly selection that is old enough (which is most of them) you get all the books at once.
And, I believe they are still doing the deal where you buy a monthly Webscription selection and you can give a Webscription selection to a friend. You do this by providing them with the friend's email address, so check with the friend to make sure he or she is cool with giving out the email address. (I made a test email account on my server, and gifted it with a monthly selection; it has never received any spam, so I believe Baen when they say they do not give out your email address to spammers.)
I have spent over $300 at Baen, and my collection of Baen ebooks is up to 200 books! That includes titles from the "free library". Yes, Baen also just plain gives away some ebooks.
Baen free library:
http://www.baen.com/library/
ebooks, and monthly Webscription selections:
http://www.webscription.net/
Here are a few free ebooks to get you going. These are some of my favorites; perhaps you might like them too.
The best of Keith Laumer's classic "Retief" stories!
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A book in the style of the old "pulp" novels, with magic and mad science thrown in.
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Humans stranded on a planet with large intelligent large molluscs. The humans need help just to digest the local food, but they can do some things the locals cannot, also.
http://www.webscription.net/pc-287-1-mother-of-de
The first of the "Honor Harrington" series, and my favorite of them.
http://www.webscription.net/pc-304-1-on-basilisk-
I hope you will enjoy reading some of these ebooks!
steveha
lf(1): it's like ls(1) but sorts filenames by extension, tersely
Whether or not fair use is a "right" is irrelevant. Fair use is explicitly spelled out in Title 17, section 107 as a "limitation on exclusive rights." Not only is it irrelevant whether or not fair use is a right, it is explicity, statutory law that the rights given to copyright holders are limited by fair use. The law is nearly the exact opposite what these thieves are claiming.
Sorry, but your car analogy (on Slashdot?! Who'd'a thunk it...) is completely wrong. If you *sell* me your car, I can do as I damn well please with it and there's not a damn thing you can say or do about it. If you *license* me the car, then you have control. And when your licensing terms suck, I'll go elsewhere.
Thanks for confusing the issue, though (and somehow getting moderated insightful...sigh).
This is part of what's crap with the current system. I walk into a store, find a CD I like, give the clerk money, and take it home. This, by definition, is a sale. That CD is mine to do what I want with. At no point in time during this transaction was it brought to my attention that I was actually agreeing to a license. Since you brought up cars...Imagine what would happen if I "bought" a brand new Ford and Ford then told me that I couldn't give rides to my family, friends, co-workers, etc. because I didn't have a multi-passenger license. Of course, they'd quickly offer me the "opportunity" to upgrade my license (for a fee) to allow this, as well as charging any person who wants a ride in my car a license as well. Don't like the car analogy? What if it were a house and the builder put these limitations on it? What a brain-dead system, all because "artists" think they're special (read: Better than everyone else).
But let's say it is actually a license. That makes it a freaking contract. That means that everything, all privileges, limitations and responsibilities, needs to be written down. Then all parties have to show what they're giving up in order to get something. Then all parties have to show they understand the terms. Then all parties have to sign it. And it needs to be kept on record. I need a copy and the manufacturer/producer (eg, Sony BMG, Universal, etc.) needs to keep a copy. That way, when I lose the physical medium of the work that I licensed, they can quickly provide me with a new copy for almost free (material cost and S&H).
I won't go so far as to say that copyright needs to be abolished, but these companies need to be reminded that it's a privilege, not a right, that they're granted. And as for duration, it needs to be shortened, not lengthened. (Financial and technical) Limitations from 200+ years ago justified 14-year terms. But in this nice modern world of ours where everyone has a computer with a word processor, an internet connection and access to Print On Demand technology, it's easier and easier for the artists to make their money back and then some, meaning the duration of government protection via fiat monopoly ought to be decreased.
Copyright isn't a license. Copyright is a law granting certain rights and privileges to the creator of that work in return for the eventual handover of that work to the public domain for the public good. When you walk into that store and buy that CD, you didn't have to agree to any license. By living in a society where copyright is a recognized law, and by not having similarly like-minded individuals to abolish such a thing, you are required to honor that law until such time as you can convince a sufficient percentage of the population that it should be removed. That copyright states what you can and cannot do in reproducing or replicating that work. In some cases, where the literal copying of the work doesn't make sense or doesn't well fit (playing a recording of a performance for profit), the law seeks to cover those situations as "fairly" agreed upon by a "majority" of the population. "Fairly" and "majority" in quotations because this tends to get skewed in easily corruptible societies.
As for there being more specific terms of a copyright "license", all that should really be is a written form of granted rights that the creator of the work is granting the owner of that copy. Think GPL. In the forum of software, copyright applies just as it does in any other realm. However, the terms of the GPL do not seek to limit further than the law states, it seeks to grant additional rights to the 'owner' of that copy of the software, with additional terms and conditions in place for that grant. If you choose not to abide by those terms, then your standard copyright law would apply and you would be prevented from doing whatever copyright has disallowed you to.
If you enter into a contract that seeks to restrict beyond copyright, then yes, those terms should be plain, in writing, and agreed upon by both parties. The car analogy that was given was not an invalid analogy, even though it is a car analogy. In the analogy, a prototype (unique, one of a kind) is available to you, but in order for the creator to allow you to purchase it, they want you to sign a contract that will bind you to additional terms and conditions. As long as it is agreed upon by both parties and you enter into that contract to buy that car, even though you "purchased" that car, you are still held accountable for the conditions stipulated in that contract you signed. You agreed to them before purchasing the car, therefor being (to me and apparently the parent of your post) an ethical, legal, and proper agreement.
Of course, these are all 'ideal world' statements, and simply my opinion and understanding of how it should operate. You don't need to agree to laws to be bound by them, and copyright is a law. There are a great many I don't agree with, but until/unless I can convince enough other people that they are useless laws, the 'majority' feel that it is the public interest to have them, and so they will stay. Oh ya, and IANAL so I may have made mistakes in my understanding of the laws.
This should be the beginning and end of this argument. The broadcast warnings clearly speak in absolute terms, and here we see Ross admitting that he knows that the copyrights referred to in the warnings are not, in fact, absolute. Thus the warnings are not just vague, they are factually (and willfully) incorrect. Many unauthorized uses of copyrighted works are criminal and infringing, and copyright notices help remind people that there are consequences to these uses. To which uses? The warnings make absolutely no allowance whatsoever in their wording for non-infringing uses. Again: that is simply factually inaccurate. If this was really what the warnings were for, they would say "Some uses of this broadcast are prohibited," not "Any use of this broadcast is prohibited." So, how exactly would the FTC rewrite these copyright notices to reflect a consumer's ability to attempt a fair use defense? Should they paste in all of the above language? We're wading into the area of providing legal advice, and these examples aren't sufficiently detailed for that." We're supposed to believe that inaccurate warnings about legal consequences do not constitute "legal advice," but more accurate warnings would? Sorry, that is a meaningless distinction. You are either advising consumers or not. There is no question that in the Digital Age, consumers need a better understanding of both the rights of creators as well as the limits on those rights through fair use. Education is the right approach, and one to which the Copyright Alliance is dedicated. But asking the federal government to regulate free speech is not the best way to proceed. This is not a free speech issue, it is a commercial speech issue. That is why it is being argued before the FTC and not the Supreme Court. Commercial speech can be held to a standard of factual accuracy and that is what is at stake in this case. The entire thing could be settled easily by simply softening the absolute language--reduce "Any use" to "Many uses" or "Some uses."
Build a man a fire, he's warm for one night. Set him on fire, and he's warm for the rest of his life.
You still don't understand it. "License" only applies if you want to copy those tracks or otherwise commercially use that IP. You know, Copyright.
Since copyright actually comes from the days of books and newspapers, get this: you never "licensed" a book, except if you wanted to republish it yourself. Otherwise, if you walk into a book store and buy one, that's it: you bought that book. (Or rather, a copy thereof.)
The "license" bullshit comes from software, and was based on the following weasel reasoning: to use a program, you have to make a copy to RAM. Since you're making a copy, you need a license from the copyright holder. You need their permission to make copies. You know, Copyright.
Re-read that paragraph, because that reasoning was the sole and only reason for software "end-user licenses". And, again, it never existed for anything else before: you don't get an end-user license on a book. And it's especially funny since, AFAIK:
A) Even in the US copyright law, that loophole has already been closed. So, regardless of what MS tries to tell you, you _bought_ a copy of their software, you have the same rights as if you had bought a book.
You _would_ need a license, if you wanted to press your own Vista CDs and sell them, or maybe make some derivative works based on it. Dunno, pack it together with your own crapware or themese and sell it. You don't need a license as Joe Average who just bought a packaged copy and installs it on his own home computer.
It's already a disturbing trend that a corporation can try to snow you over several pages that they can override your consumer rights... and people actually believe it. So then, it's no surprise that:
B) I now see them trying to expand this to stuff which didn't have even that bullshit excuse in the first place. To play a CD, you never needed to make a copy in any form or shape. A typical CD player never reads more than maybe a second or two ahead, at any given time.
And, oh, since you seem obsessed by that car sale:
C) Copyright never applied to stuff like cars, since you seem obsessed by that car sale. Consumer rights, however, did. There _have_ been manufacturers who tried stipulating that you don't have this or that right (e.g., that you're a criminal if you repair it yourself), and it's already been ruled even in the USA that they can't do that. You _are_ legally allowed to repair your own car, whether the manufacturer likes it or not.
You may still void the warranty if you take your engine apart. You may get extra conditions if you have to give that car back, i.e., it's a lease or rental. But a sale? A sale is final. It's yours now. It's your legal right to do whatever you damn please with it, as far as the manufacturer is concerned.
Even for rentals or leasing, it has already been ruled even in the USA that certain clauses don't belong there. Stipulating that you can't wreck it is OK. Most other stuff is not. Even if it's a contract, stuff that a reasonable person wouldn't expect in there, or wouldn't see a reason why it would be needed in there, is legally null and void even in the USA. E.g., if I had a rent-a-car shop and snuck in the fine print "I just adopted your firstborn", that clause would get thrown out of court if I tried to enforce it. It's not the kind of payment a reasonable person would expect in a contract to rent a car.
Also, a contract doesn't override the laws in any part of the world. E.g., I can't put in a contract that you're now my slave, because slavery has been outlawed a long time ago. Well, the same applies to copyright law (which _does_ include that fair use clause) and consumer rights laws. _Regardless_ of what a contract says, it can't take away your legal rights.
Also, the idea of a contract is, or at least used to be, something that has been explicitly agreed upon and signed in advance. It's (or used to be) also expected that if any point is even borderline controversial, then it would have been explicitly brought up and dis
A polar bear is a cartesian bear after a coordinate transform.
I think the worst thing all this business does is tarnish the *AAs reputation and annoy consumers. A case from a recent purchase I made. I found The Simpsons season 4 DVD set for cheap a while ago at a sale. As it has the monorail episode I decided to buy it :) Its all great except when I load it into my home DVD player I am force to watch the copyright violation scare message in 14 odd languages(Im in the EU) and I cant skip any of them. Slightly annoying. But then I find that *every* time I watch an episode I have to watch thew scarcy copyright message *again* in english for a good 40-50 seconds!
What the hell is up with that. Why did I not just bit torrent it and burn it myself? I did the correct thing and bought the product. So I ripped the thing and stuck it on a hard disk and took out all the nonsensical messages.
I don't really advocate mass copyright infringement but little things like that make me thing... what the hell... BT and burn away people.
Any public relations position's job is to present their company in the best possible light given whatever policy is dictated to them from above. Sometimes you are given dickhead policies and if you want to keep your job, there's not much you can do to defend it short of lying or ignoring counter-arguments. (See pretty much all political discourse as a perfect example.)
In the past, and still in a handful of cases today, presenting your company in the best light was done by treating the consumer well. I think the iPhone rebate announced today is an example of that. (For the record: I am not an Apple fanboi and hate those who are. I do not own an iPod, iPhone or any Apple computer; I do not have iTunes installed and have never bought a track from them, etc.) The idea there is simple: Treat them right, give them a decent product and they will return to buy from you again in the future.
This is only necessarily in competitive markets where there are nearly identical replacements. Being an ass in that context will drive your customers away.
In limited circumstances--movies, music, Windows, and more--there are monopolies or cartels that make it much harder to switch away. Yes, there is a lot of music outside the control of the RIAA, but it's not what you tend to hear when you turn your radio on in the car and that's what people are going to want. It's also not a real replacement; if I want a song by an artist from a major record label I have to play by their rules, a song by a random indy artist isn't the same thing. (It may be better or worse or even the same level of enjoyment, but it is not the thing I wanted.) Yes, you can install OS X or Linux or some alternate operating system, but if your applications don't run on it or you don't want to relearn things you're a bit stuck. Movies are probably the worst, in part because we've become accustomed to big-budget flicks with huge special effects that can't really be duplicated in independent films.
Since there isn't such a clear-cut replacement in these cases, they can afford to dick their customers around. They have what we want, and our choices become buy it anyway, go without or turn to illegal means. Since increasingly people are choosing #3, you see a concerted effort by groups such as them to control the law (DMCA) to their advantage.
So, no, you don't have to be a dickhead as a PR guy necessarily. You do, however, have to be as big a dickhead as the decision-makers in your company are.
Though wikipedia says it's from John Heywood's (1546) as "wolde you bothe eate your cake, and have your cake?". Of course they later say in the same article that the "original, correct version" is "eat your cake and have it too". It's almost like the article were written by a bunch of different people at different times.