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What is Fair Use in the Digital Age?
Hugh Pickens writes "General counsel for NBC Rick Cotton and Tim Wu, professor at Columbia Law school, continue their debate about copyright issues and technology on Saul Hansell's blog at the New York Times discussing Fair Use of commercial music and video as the raw materials for new creations. Cotton says that content protection on the broadband internet is really not a debate about fair use The fact that users can 'take three or four movies and splice together their favorite action scenes and post them online does not mean that these uses are fair. There needs to be something more — something that truly injects some degree of original contribution from the maker other than just the assembly of unchanged copies of different copyrighted works.' Wu's position is that 'it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use. This simple concept would bring much clarity to the problems of secondary authorship on the web.' This is a continuation of the previous discussion on copy protection."
Just keep the **AAs in check before continuing the debates and discussions. They never show any logic, or sanity for that matter when it comes to this issue.
If you believe in privacy, and believe you have "nothing to hide" at the same time, you're a goddammed idiot
If i've purchased a song, i should be able to use it anywhere,on anything and at anytime of my choosing for personal use, and i should be able to exchange my license to use this music with anyone else for a swap or money exactly like any other 2nd hand market.
If you mod me down, I will become more powerful than you can imagine....
There is no difference in Fair Use rights in the "Digital Age". It's the same as it's always been. It's only because of the misinformation campaigns by the RIAA and MPAA that we have a society that's confused about the rights they have had for quite some time.
:(
Unfortunately, the sheep are easily swayed over time (the frog/boiling water deal I suppose). I'm not fooled and hopefully they won't be able to fool intelligent judges either. They might buy over Congress but someone needs to put their foot down and stick up for us.
I'm tired of stories like this
My personal view on fair use is much the same as my view on downloading - fine if you do it for yourself or with no intention of profiting from it, but bad if you attempt to sell it, whether through burnt DVDs in the market or using clips from films/pictures/music to bring people to your revenue generating website, and so on.
It's a yin and yang - downloading or fiddling around with videos or music may cost some sales, but it can also generate new fans, who will purchase when they otherwise wouldn't. So what if splicing 3 or 4 clips together doesn't have much artistic merit? That's a purely subjective call, and in this age, it seems that computer software is the popular artistic tool of choice.
Between the falling angel and the rising ape
The companies have money so they can take what they want without getting the million dollar lawsuit from Bob for taking his little music tune and putting it in their car advert.
So I guess fair use re-defined for today would be asking yourself the question "Could you get into a lawsuit over this piece of IP?". I think that copyright is pretty difficult to judge in the first place.
For example, this comment I am writing. If someone re-posts it, should I be able to sue them for infringing my copyright for re-distributing my work. I gave you permission to read it only! When does a few lines of text become big enough to be said "Ok taking all this would be copyright infringement"?
There is also a personal gripe I have which is the copyright blackhole. A game I really liked went bankrupt and all the code went down the copyright drain. No one owns it, but it is illegal to re-license, re-distribute, whatever because I am not the author. The author can't legally give it to me either because although he has the source, he doesn't own the IP to source, no one does.
It's different to everyone. I suggest that fair use constitutes parody, abbreviated (less than half the content) in quotes, and where images or sounds are modified, upfront declaration that this has been done, no matter who the artist or the type of content is. Anything modified from its original should be declared, IMHO
---- Teach Peace. It's Cheaper Than War.
I wonder if the HD-DVD "downfall" posted on youtube the other day would constitute as fair use, as it's not exactly a parody of the movie, but of an unrelated situation: http://www.youtube.com/watch?v=friS4OOcdgQ
I agree though that the digital age really makes no difference. The real change has been a shift is society's values. Me, me, me!
Engineering is the art of compromise.
only using every other bit.
If each individual item within a copyrighted work is copyrighted, then how would we ever legalize mash-ups and re-mixes...it has been happening for years...
but I think, and this is just my opinion...
If each little bit contributes to the whole of a work (a Mash-up or Re-mix) then that mash-up or re-mix becomes a "new work"...
I agree that it is fair use...simply because it isn't a total and whole copy of the work, it is a part of the work to create a new work.
--E--
And how would we measure that? Adding content != adding value. Conversely, a new blend of old content can change the contents "feel," message, and/or meaning. I would love to see the "value matrix of subjective content."
Let us not become the evil that we deplore.
Someone didn't read the article :-) To quote Rick Cotton (the bad guy):
First of all, as Mr. Cotton duly notes, and as we often hear here on /., there is no such thing as a fair use "right." It's only a defense against infringement. To respond to your point, I'd argue that since the technology has changed so drastically, not only for enabling infringement, but also for enforcing copyright, the laws ought to be looked at again. What wasn't even on the map when fair use was being hashed out in various cases is now commonplace. It's time to reevaluate. Fair use should change as a result.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
By his own example, splicing action scenes together could create value. What if they are action scenes of one particular type - showing how the same 'move' is applied in different films. Or, what if the action scenes create their own kind of poetry when put in to the right order. Maybe it shows how a genre has changed over time to reflect current morality. At the end of the day you end up with the same argument - what's fair use any way? If value is the only determining factor - then how do you measure value? To me, you end up at the same stopping point.
I don't know what it is, but I know what it should be: non-commercial private use!
Who are they, or who is anyone to state that something is 'adding value', that's ENTIRELY subjective with something like this.
There is no need what so ever to clarify 'fair use' any further than it already written in law, especially not when the 'clarification' proposed is clearly only to reduce the rights of the very people they were introduced to protect.
Wu's position is that 'it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use. This simple concept would bring much clarity to the problems of secondary authorship on the web.'
So his definition of Fair Use is a work which uses the original work, but is at the same time substantially contributes to it by adding primarily new work or including substantial additional commentary or editting....
I'm no lawyer, but doesn't that sound like a http://en.wikipedia.org/wiki/Derivative_workDirivite Work? Wouldn't that mean his definition of "fair use" is pretty much the same as "usable only with permission"?
Of course there is value added. There is value to the user otherwise he wouldn't do it and there is value with sites like YouTube because it generates revenue when people look at it, which they do because it -duh- has value.
in RIAA's mind their is no fair use, if you didn't buy the original cd or buy the song from a legal service like itunes. its an illegal copy of the song, even ones you ripped from the cd's you paid for at a store.
Anime Music Videos are perfect examples of fair use. You can take a speech from a comedy show, mix it with some scenes, and have a hilarious mix entitled "the flying car". A much more artistic example is "I must be dreaming", which not only adds clips, but some special effects as well. Or if you like violence, how about a little Mortal Kombat ?
:(
And last, but not least, AMV Hell 3: The Motion Picture and AMV Hell 4: The last one. Some of the clips there got me laughing for hours.
What would be of Entertainment and creativity online if all the music and anime producers sued the AMV makers for copyright infringement?
Cotton is correct to argue that the simple ability to copy and manipulate digital data does not translate to fair use. We've had the capability to copy and make unlimted copies of printed data for centuries and that has never been considered fair use. You can't make special rules for data on one kind of medium versus another.
Beyond that, Cotton is mostly wrong.
Wu's "added value" position is wrong. Who is to determine if value has been added or eliminated? For that matter, what is "value"? If I copy a popluar song, add 5 seconds of silence at the end and call it "added value", can I then sell it under my own name?
Other than that, he's mostly right.
-- Slashdot: When Public Access TV Says "No"
> No, that is not what fair use is. Fair Use is that exception written into copyright law since 1976 that allows people to quote and/or copy small parts of a copyrighted work without permission or payment for certain specific reasons. If he doesn't even know what the term means, why should we care what he says about it? There's no plausible reason to think he's right.
Good, inexpensive web hosting
I don't see problem with copyright protection or fair use. I see problem with punishment due to copyright violation. In retrospect, copyright law is heading toward colonial era when witchcraft and runaway slave is an offense punishable enough to be burned at the stake.
"Don't let fools fool you. They are the clever ones."
"work that adds to the value of the original, as opposed to substituting for the original, is fair use."
I don't think that defining a subjective term by the use of another subjective term clarifies anything.
This is, and will remain, a thorny issues because, whetever the long-term interests of both parties and their understanding thereof, the short-term interests collide. Given the prevalence of piracy, I'm not sure even a crystal clear definition will solve the problem.
It seems to me that the definition of copyrights and the definition, discussion and litigation of that concept is likely to be viewed historically as a process and not an event.
In other words, this discussion will pretty much be endless.
What about music that's written with the intent that it be used as a backdrop to something else, like a film score? The intended use of that music is to be incorporated into something else that adds a layer of creativity. If you say "any use that adds something to the work is fair use" then film scores effectively lose ALL protection. The original film, for which they are written, wouldn't have to pay royalties because it would be adding something and making "fair use" of it.
Same for stock photography and stock video providers -- their GOAL is to provide raw material as input into a larger work. They spend a lot of time and money shooting and editing stock. If you claim any use of their work is fair use (it's always incorporated into a larger whole, and often transformed along the way) then stock photographers and videographers can't get paid (all use is fair use--why pay for it) and might just stop producing stock material. It's a huge benefit to illustrators and designers to have stock photography and video available. (As an aside, some stock photographers create really good work)
How does he address the fact that some people design work with the hopes of being paid by producers who will assemble it into a larger whole, and that producers are glad to have designer's work available?
I agree, but please let me add that one does not "license" a CD, one buys a copy of it. That copy is owned, not licensed, even though the owner does not have the rights to copy (beyond fair use).
A license is only needed when the copyright holder needs to give a limited set of copying rights (beyond fair use) to the licensee.
I'm not contradicting you: I think you were talking about online downloads. Those might indeed be licensed, I do not know because I stopped giving money to RIAA.
"What is Fair Use in the Digital Age?"
The same that applied in pre-digital, digital ages:
Do not fold, spindle, or mutilate. There. Now, transferring that age to this age, add: "Don't digitize or compress; decompression not guaranteed" the membership.
Previously: "Linux... Toward the Sunrise..." Now: "Linux... Toward the-- No, now, part of Every Sunrise"
Whoever said we have to add value by adding original material? A lot of value can be added to some pieces by *removing* material, e.g. The Phantom Edit.
How is making a compilation of awesome fighting scenes not adding original contribution to the copyrighted works? Were the original copyrighted works simply compilations of awesome fighting scenes? Okay, well maybe king fu movies are a bad example because some of them really are just compilations of awesome fighting scenes.
simple - if you make money off it, it's piracy, unless you negotiate a distribution license. Everything else is fair use.
Well said. Simple and equitable. As the laws surrounding copyright get more and more complicated, we can only hope a similar 'hard reset' will eventually have to occur.
Je me fous du passé
As always, you can't make a blanket statement as to what is or isn't a fair use.
I'm not so sure. The copyright bargain is pretty simple in principle, and it's also pretty simple in principle to establish what (ethically speaking) we might regard as fair use.
For example, I might make a blanket statement that an individual who has a legitimately obtained copy of a work should be free to use that work however they see fit in private for their own benefit, regardless of any literal copying or transformative editing involved.
I might also make a blanket statement that it is reasonable to prohibit redistribution of a legitimately obtained work that is subject to copyright or any derivative work, in any way that materially disadvantages the copyright holder, to anyone else without the copyright holder's consent.
In fact, I think if we could agree those two basic principles, there are very few exceptions required. I think the US does better in law than most places here, by at least codifying four generic principles rather than numerous specific, non-adapting exemptions. But even in the US, I think things are too complicated.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
If you want some-what illegal vigilante justice, just use some loops and wget:
/dev/null
/dev/null
wget -r http://minicity.com -O
or a loop:
while [1]; do
wget http://http://slashdotcity.myminicity.com/ -O
done
and get many people to do that.
If I have nothing to hide, don't search me
work that adds to the value of the original, as opposed to substituting for the original
And who gets to determine what "adds value"? Here's a random example I just came across today that rides the line: the full Steve Jobs Keynote vs. this 60 second recap:
http://www.youtube.com/watch?v=Yz1-cPx0cIk
That can both substitute for the original, and yet I think adds value. Not just by being short and informative, but by satirizing and commenting on the effects of 89 minutes of fluff marketing. Is it fair use?
Cheers.
I buy a media/entertainment product. I use the product (music, book, video ...)
...) then I must negotiate with
... then
for as long as I want, wherever I want, in any personal (not public) way that I
want, on any type of my personal products/media I want.
At any point, I attempt to use any IPR protected product for (non educational)
personal real/virtual value gain (bar, theater
the owner and/or accept binding arbitration as too the appropriate compensations
percentage value of the IPR product added to my innovative, creative, business use.
If I, associates, or others make no real/virtual financial gain, then no added
value no added compensation to the IPR holder of the original product.
IPR laws should leverage original ideas/content to induce greater creativity, innovation,
development, evolution, revolution for humanity. IOW: IPR should never prevent fair and
reasonable use of a product. IPR laws need to help create and develop a far better products
and economic growth. If a product is improved/enhanced to provide added value
append the original IPR certificate with secondary IPR certificates that either increase
the total value stabilizes product value over decades.
Unaccountable leaders are masters, and unrepresented people are slaves. How do US and EU fare?
ya ain't suppose to rip off other people stuff, ok?
The difference is that movies etc, are commercial use, not personal use, which is what fair use is all about. Music scores, stock photos/video producers will still get paid as someone is making money off their work, which is not the case for personal use.
"Bend over and I'll show you."
--RIAA
"A threat to our business model. A threat that will be eliminated."
--MPAA
"You, like your father, are now mine."
--Jack Valenti
Fair use is not all personal use. Some people argue that taking a sample of a song and using it in another song is fair use. Other people argue that putting videos on Youtube (which is a commercial, profit-making venture) can be fair use. Personal use is ONE part of fair use, but it's not ALL fair use.
Isn't this their argument for not paying the writers for downloads? Shakespeare, relevant as evah.
What is copyright in the digital age?
Certainly more than it ever was historically...
if we let rappers sample the melody from "every breath you take" then fuck it up by putting other words on top, then MST3K should be allowed to make a humorous commentary on top of a movie. not that either of these constitutes "art" in my opinion.
Remember kids, if you're not paying for the service, YOU ARE THE PRODUCT THAT IS BEING SOLD.
"I could make a similar argument against software that can be licensed only once (Steam [wikipedia.org]: I'm looking at you!). "
You can look all you want. I've bought a used copy of HL2 and had it transfered to me. It's a little more complicated than just the swaping of goods, but not much more.
The "copyright black hole" is very real from a technical standpoint.
If Valve went away, who is going to let me download the Steam games I've purchased, but not installed? Who's going to unlock those games?
There have been games which have pretty much completely disappeared, due to their own copy protection not being cracked while the company was still around, and requiring obsolete hardware/software (a real, physical floppy drive, the original floppy, and DOS) in order to run. Even if they are legally public domain, you're not going to find them where they really should be -- a library, or an Internet archive of abandonware.
Don't thank God, thank a doctor!
I've got a really easy, simple solution to this whole dilemma.
Fair use = non-commercial use.
I can watch it, appropriate it, edit it, remix it, post it, and do whatever i want with it, so long as I don't sell it.
As soon as I burn my 'creations' to a DVD and try to sell them, then you can bring up the whole 'copyright infringement' debate. but short of that, it should all be fair use.
-I only code in BASIC.-
Here's where I am. I pirate video audio. I'm not entirely sure I want copyright law to be altered that much.
Just putting myself on the other side. If I'd created a film, recorded an album etc - I'd want to sell it and make a bit of cash back (if only to cover my costs). If somebody downloaded it I'd be a bit pissed off. If I saw it sat on YouTube with google making money off the adverts around it, I'd be really pissed off.
On the flip side I hate the DRM laden 'legit' digital media and I'd have no objection to somebody dubbing my music over some machinima video they'd made and weren't selling on themselves (if they were, I'd happily negotiate a small cut).
Sensible solution to this is just to create a series of different licenses - like OSS, but very easy for the average person to understand.
For examle:
Back of a DVD might contain a notice that you're entitled to create works derived from this media for your own personal use (i.e. copy it onto your ipod, psp, NAS etc), whilst you retain ownership of this license. (i.e. if sell the DVD, you have to get rid of any copies). If you want to sell this nice idea, no reason studios couldn't bundle a nice Windows/OSX app on the DVD that'll help you put it on your ipod etc (we're doing it anyway).
Back of CD might allow you to use use and distribute in your own works for non-commercial use. You could put it over your machinima video as long as you weren't asking for money (and that includes putting it on youtube and giving google money - although if they wanted to run it without adverts, I'd be happy).
In summary I hate the constraints that're put on us the consumer, but I cannot join the seemingly popular clamour of demanding that all media wants 'to be free'. If it's yours you can make it free, but if I don't want it to be free you can't decide it is.
"If you claim any use of their work is fair use (it's always incorporated into a larger whole, and often transformed along the way) then stock photographers and videographers can't get paid (all use is fair use--why pay for it)"
The worst case scenario is that stock-photgraphing will be a bussiness no more so there won't be stock-photographers for a living. So what? There ain't street ice-resellers either.
"It's a huge benefit to illustrators and designers to have stock photography and video available."
Then illustrators and designers will contact photographers and they'll ask them to make some shots for them for a profit. Again, where's the problem?
"How does he address the fact that some people design work with the hopes of being paid by producers"
I bottle my barfs with the hopes of being paid by someone, how does he address that?
Exactly: my hopes doesn't mean a shit about the ability of my ocupation to rise a profit. If there's a profit I might continue; if it doesn't I'll find something else.
So how does this apply for wikipedia? I got fed up and stopped contributing because increasingly restrictive "fair use" guidelines retroactively applied to all my uploaded images (by a user called BetaCommand) which had to comply with the new guidelines within a week or be deleted.
Perhaps wikipedia should introduce a blanket rule of "[wikipedia articles are] work that adds to the value of the original" and regard users like BetaCommand trolls rather than pat them on the back for deleting (sometimes irretrievably in my case) vast quantities of media.
If you are worried people would prefer to just see the action scenes from your movie on youtube rather than the whole thing then perhaps you have a larger problem.
The difference is that frequently, the film score is written for the movie; without a movie and a producer to pay for the music, there would be no music... Fair use or not, the music composer gets paid.
If I'm wrong, please correct me ; learning is better than being right.
no, youtube is not a commercial, profit-making venture for the people putting the clips up. this would be like saying recording sound-bites from songs on cd and distributing them at no cost to friends is also a commercial, profit-making venture because the people who make the cds get money from it.
Here's the deal. You get to use publicly owned material like the English Language, classical music, out-of-copyright books and traditional stories (hello Disney), pictures of public places (including MY HOUSE damn it), regional accents etc. in return for some fair use rights and a limited (say 15 year max) copyright term. Sound fair?
Nothing that big media produces is entirely original. Apart from the fact that they use a public domain language (English) with slang and common metaphors not written by them, they of course are inspired by earlier work. Bands like Oasis wouldn't exist without The Beatles, yet they pay them no fees. The Matrix is just an updated version of Descart's "I think therefore I am" idea.
Either they give something back or they start paying.
const int one = 65536; (Silvermoon, Texture.cs)
SJW, n: "Someone I don't like, and by the way I'm a fuckwit" - AC
Regardless of your legal entitlement to sell something like, say, a DRMed track purchased on iTunes, the publisher isn't required to sell you a product that has value to anyone other than you. You buy DRMed music with the understanding that it's useless to other people, and therefore you're unlikely to be able to sell it. The law isn't stopping you selling it, but the fact that it has no value to anyone but you prevents you from actually finding a buyer.
If CmdrTaco posts a dupe of a news posted by Zonk, without adding much value to the older post, he can be sued. Right?
Nothing apparently.
Crisis is the rule, not the exception.
In the example used, of publishing a splicing of action scenes from four movies, the editor's contribution is essentially an edit list.
Once we get most music and film online, one could reasonably publish an edit list, with links to the original content. Anyone else could use an auto-compilation tool that does that same splicing, direct from any legal copy of the original content - either copies you have, or copies of just the chunks used, pulled off the internet and paid for according to some established scheme.
No need for a secure micro-payment scheme - just a secure micro-accounting scheme, meaning you don't try to pay pennies from billions of uses to millions of creators - you just track charges for each user and count up amounts owed creators. Audit it to keep it correct and honest, but mostly just rely on the fact that it appears to be working well, and don't fret much if it is missing a penny here or there.
More permanent compilations could be recorded together as if it were original video (e.g. where the edits are too elaborate to handle in realtime), with their charges calculated once, and all payments into the account for the edited content would be split between the editor and the creators.
The actual point -- to the extent that there is any -- of copyright protections is not to require that derivative works "add value" (how is the court system supposed to judge that???). The point is to prevent someone else from reducing the value of the copyrighted work. If you splice together a lot of snippets from some existing movies, you may easily give people the feeling that they don't care about seeing the originals: if you splice together a small number of clips, that's supposed to be covered by fair use (and an intelligent copyright holder would want you to do that, because you may very well increase interest in the original).
In the print media world, the principles of quotation are enshrined in custom (though not the letter of the law) and it's understood you don't need to worry if you short quote passages of less than 50 words. The difficulty with recorded music and film is that the money-grubbing bastards have been fighting the establishment of similar standards for other media: e.g. rather than developing a rule-of-thumb that, say, 3 second samples are okay, they try to milk people for "sampling rights".
How about this, for a start? Copyright doesn't apply to private, non-commercial copying or sharing.
There's probably some other stuff that I'm not informed enough to have a good opinion on regarding royalties and derivative works, but this would solve a lot of problems up-front.
If your business model depends on the RIAA/MPAA math where every single unauthorized copy == 1 lost sale, then you should get on the bus to obsolete-ville with that guy who keeps trying to get me to invest in his buggy whip company.
The plural form of "anecdote" is "anecdotes", not "evidence".
For example, I might make a blanket statement that an individual who has a legitimately obtained copy of a work should be free to use that work however they see fit in private for their own benefit, regardless of any literal copying or transformative editing involved.
Still, though, there are scenarios where that might not be a fair use. Space shifting, for example, is quite like what you describe, but it's always been borderline, and the number of alternatives provided now (e.g. iTunes, pre-encoded DRMed and licensed copies included on disc, etc.) chip away at it.
I might also make a blanket statement that it is reasonable to prohibit redistribution of a legitimately obtained work that is subject to copyright or any derivative work, in any way that materially disadvantages the copyright holder, to anyone else without the copyright holder's consent.
So you are opposed to the idea of first sale, which is how we have things like used book stores, video rentals, and libraries? How odd. N.b. also that first sale is unrelated to fair use.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Thanks for the clarification!
Read Heinlein's 1953 Revolt in 2100, now more than ever.
Sorry, I didn't write my second point clearly. I meant redistributing copies of the work. I have no problem with either loaning or selling an original copy, as long as the previous holder's personal use rights stop when they give up that original copy. In fact, I don't think prohibiting such loan or sale should be within the copyright holder's rights at all, because there is no "multiplication" involved and the original copy has already been legitimately obtained.
Such a simple framework would probably cause some considerable debate around the use of licensing agreements, I suspect, but at least having some clarity there would allow an exploration of what is fair and what the law should therefore evolve to support, instead of the "when does it/doesn't it apply?" mess we have in many jurisdictions today.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.