Rumors of a 'Whisper Campaign' Forming Against Fair Use

An anonymous reader writes "Ars Technica reports that a group of companies and organizations it calls 'big content' is currently engaged in a worldwide 'whisper campaign' against Fair Use. 'The counter-reformation in question takes the form of a "whispering campaign" in which ministries in different countries are told that plans to expand fair use rights might well run afoul of the Berne Convention's "three-step test." The Convention, which goes back to the late 1800s, was one of the earliest international copyright treaties and is now administered by the World Intellectual Property Organization (WIPO).'"

Comments

Leeches

[Anonymous Coward]

I wish they would just choke on their own corruption. But then the evil spirit might come out of them, and then we'd all be screwed.

Re:Leeches

[Anonymous Coward]

I thought that was the entire basis of Scientology? Evil spirits wandering around and re-inhabiting random vessels.

I'm not the same AC as this guy, but it's funny he mentions them in the context of a "whisper campaign" against fair use.

Sonny Bono was a Scilon and a Congressman. In 1998, he didn't just argue for copyright extension, he got the Mickey Mouse Protection Act named after him: The Sonny Bono Copyright Term Extension Act (CTEA).

The Scilons, via Bono and via the rest of their Hollywood connections, were strong advocates for the DMCA. Within months of its passage, they were using DMCA threats to out critics and open them up for further harassment. They've used the DMCA as a legal cudgel against everyone from Google (they tried to prevent Google from linking to critics' sites) to Slashdot (the only time in Slashdot history that the Editors have been forced to delete a post).

Using back channels to lobby for the end of fair use would be a major legislative victory for the Scilons; the only reason they don't sue on the basis of the phrase "seventy-five million years ago" is because they'd be laughed out of court. Under cult doctrine, "the purpose of a lawsuit is not to win, but to harass", and if fair use (using quotations from cult materials for purposes of parody, expression, or criticism) goes away, they'd have standing to file such suits.

That AC's closer to the truth than he knows. It wouldn't surprise me one damn bit to see the Scilons behind this.

That's not how I heard it...

[loimprevisto]

I heard whispers of a rumor campaign- thanks, Slashdot for setting me straight!

Re:That's not how I heard it...

[Otter]

The irony of completely fact-free scaremongering about a "whisper campaign seems to have been missed by all parties...

The "3 steps"

[BadAnalogyGuy]

Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.

According to Wikipedia, the three steps are:

1) certain special cases
2) do not conflict with normal exploitation of the work
3) do not unreasonably prejudice the legitimate interests of the rights holder

I'm no lawyer, so I don't have the background to understand that kind of gobbledygook. Maybe that's the problem. Maybe laws written for the sake of the governed should be written in a language they understand.

Re:The "3 steps"

[Anonymous Brave Guy]

I find your post interesting, primarily because it sounds like a reasonable interpretation of the three steps, yet it's quite different to what I'd come up with (as someone who has been actively involved in the consultations about this topic in the UK recently).

In particular, your version implies that anything that may cost the copyright holder any income cannot be fair use. I would qualify that (and I do think the phrasing of the TRIPS three-step test supports this) by saying that normal exploitation does not mean the same as absolute control. We could argue, for example, that selling a second full-price copy of software to someone because their installation DVD got scratched would be profitable for the copyright holder if making back-ups were illegal, but I think most people would consider this excessive exploitation and the law in most jurisdictions reflects this.

Getting back to the proposals at hand, I think if these rumours are true, the big content guys are going to have a tough time. What's happening right now is that several countries are seeing the balance of copyright tipping toward the copyright holder and finding their laws out of sync with common perceptions of what is reasonable (and done routinely, regardless of legality, by much of the population). We've had a string of investigations over the past two or three years, such as Gowers in the UK, which have proposed changes to redress the balance. The US actually has a pretty good deal with their fair use; while DRM/DMCA issues are screwing things up, the law is otherwise pretty reasonable and the four tests are fairly transparent. In most other countries, the law is not so general, and commonly expected behaviour like making back-up copies and format shifting is actually illegal in several places!

Now, we're seeing governments actively start to implement those proposals. For example, the UK government is consulting on a proposal to legitimise format shifting, which is technically illegal at the moment even though everyone does it and media industry organisations have stated publicly that they will not chase anyone to court for doing so. (The closing date for the consultation is today, so if anyone else thinks the exception should be far more general than just format shifting, get those e-mails in to the consultation response address!)

I suspect this is just making mountains out of mole-hills, though. The whole point of fair use is that there are plenty of things you can reasonably do with content you have legally obtained that are beneficial to you yet cause no unreasonable damage to the copyright holder, and the law should allow you to do these. No-one is talking about, for example, legalising P2P file sharing in breach of copyright or letting someone buy one legal download and then burn it to many CDCs and sell them on separately, which might actually do some real damage to the big media industries. It's hard to see how Big Media can credibly argue that the changes proposed in places like the UK are in violation of the three-step test when US fair use has allowed them since forever, the US is also a TRIPS signatory, yet until now Big Media has not attacked this position.

Berne Convention can go piss up a rope

[sm62704]

The rich bastards who own the corporations really rule the world, but they're working hard to quell a counter-revolution. They are NOT patriots od any country, no matter what country they lay claim to. They only care about their own personal wealth and power and the rest of us can go to hell as far as they're concerned.

Fair use? How about "expanding" fair use in the US to what the founding fathers envisioned, and "limiting" the endless copyrights that would have appalled them?

I have decided that I will respect no copyright older than ten years old, period. I urge everyone else to join me. I think twenty is reasonable, but damn it THIS IS WAR.

Oh yeah- I refuse to honor ANY copyright held by a corporation. Only a writer or painter or other artist should hold a copyright. Disney can go to hell (actually he probably already did).

Yeah, I'm in a bad mood. So sue me.

-mcgrew

PS- I hold copyrights. I have two ISBNs that should have already passed into the public doimain. I'm not against copyright law, only the INSANE copyright laws that are in effect now.

Re:Berne Convention can go piss up a rope

[El_Muerte_TDS]

Yeah, I'm in a bad mood. So sue me. You can sue people in the US for being in a bad mood?
Wouldn't that make your mood worse when you're sued?
Also, what kind of conviction can you expect? Sentenced to be in a good mood for 5 years (2 years probation when you show good behavior)?

it's interesting they are digging this deep

[circletimessquare]

it is interesting to see ministers and legal wranglers reaching back this far in copyright history for a sense of stability and coherence in copyright law. it shows desperation, confusion, fear. however, what the internet has done to copyright is yet a more fundamental reordering of the landscape than even law going back to the 1800s

it is simply that at one time, the means of production and distribution of media was confined to a few players. this meant that agreeing on rules, and compliance and enforcement was relatively simple and straightforward. as recently as the 1980s, if someone was counterfeiting vhs tapes, for example, the operation was ponderous, slow, required a heavy initial investment, and was relatively easy to trace and shut down those few random players. this limited piracy to a few hardy organizations

but today, the power of global distribution that was once confined to the likes of bertelsman and sony is in the hands of every college kid. enforcement? ha! compliance and agreement on the rules? ha!

the assumptions about distribution that created copyright law as we know it is so fundamentally altered as to be so alien a landscape that copyright law is simply completely and utterly destroyed. for those of you doubting this, you are simply in denial. you can't make a law that is impossible to enforce. well, you can, legislative bodies do it every day. but it simply doesn't mean anything, it's hollow, it's a joke. that's what our copyright law has become

the last ten years has simply been a slow process of awakening the world to this fact. the next ten years will simply be more awakening to this fact, everyone getting on the same page: copyright law is broken. utterly

this is what they mean by disruptive technology. the internet destroyed copyright law by making every single individual in 2000 have the same distribution power that was confined in 1990 to sony and bertelsman

obviously, rights and morality and ownership in the realm of media are issues that are still valid. these issues still need to be addressed legally. but the legal and compliance framework around these issues will need to be built almost from scratch, and copyright law as we know it must be thrown out almost in its entirety: all the basic assumptions it is founded upon are completely reordered

personally, i think some form of copyleft a la "free" software will be the basis for our new legal framework about all media and distribution: music, books, movies, etc