Friday, September 07, 2007

Warped Perspective from the Copyright Alliance

UPDATE (2007/09/13): This just in from InformationWeek: "Fair use exceptions to U.S. copyright laws account for more than $4.5 trillion in annual revenue for the United States, according to a report issued on Wednesday by the Computer and Communications Industry Association."

The story goes on to quote CCIA president and CEO Ed Black:
"Copyright was created as a functional tool to promote creativity, innovation, and economic activity," said Black. "It should be measured by that standard, not by some moral rights or abstract measure of property rights."
He's absolutely right.



C|Net has published an editorial by Patrick Ross, Executive Director of the Copyright Alliance. The piece, entitled "Perspective: Fair use is not a consumer right", is a fine example of why lawyers have a reputation for sleaziness and dishonesty. Though, perhaps, in this case it's the headline writer.

I'm going to exercise my Fair Use rights, right now. Ross invokes the "irony" of what he sees as a deceptive statement from the CCIA:
Fair use, as CCIA must surely know, is not a "consumer right," but rather an affirmative defense. And this is an important difference.
Irony upon irony. Copyright itself is not a right, but is a temporary monopoly granted by the state. During the term of this monopoly, copyright is subject to certain exemptions, which we call "Fair Use", and which are codified in Title 17 of the U.S. Code. Such fair use includes quoting for the purpose of commentary (such as news commentary); education; or parody. In fact, you can quote an entire work verbatim for any of these reasons, as when Weird Al quotes the entirety of the lyrics of Queen's "Bohemian Rhapsody" in his "Bohemian Polka", or when he produced "Amish Paradise" using the entire tune and musical arrangement of "Gangsta's Paradise" (in itself a re-working of Stevie Wonder's "Pastime Paradise"). But if you do quote, be prepared to justify the use, because Ross is correct in saying that Fair Use is an affirmative defense. You may get sued, and you may lose if your use doesn't conform to the uses allowed under Title 17.

But just because you may have to defend your right doesn't mean it's not a right. Fair use is based on two items in the Constitution. The first is the following clause, listed among the powers granted to the Legislature:
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
(Note that the purpose of copyright and patent law is revealed here; where such law violates this purpose, it can be struck down by the Supreme Court.)

The second is the First Amendment, in what we know as "the Bill of Rights" (Ross, take note!)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Where copyright law abridges the freedom of speech or press, as in rendering the press, or commentators (or any individual, for that matter) incapable of quoting for the purpose of commentary or news reporting, then the courts could declare the law illegal.

Congress cannot make a law that violates the Constitution; the courts would strike it down. That's why the Fair Use exemptions in Title 17 exist. Failure to include them would violate the freedom of the press and would operate against the public interest.

So, while Fair Use is in fact an affirmative defense, it is also a Constitutionally guaranteed right. Look at it this way: free speech is a right, but that's no guarantee against being sued for libel. But telling the truth is an affirmative defense; just don't exceed your free speech rights to tell lies. They can sue you, but they can't win if you told the truth. I think if your defense lawyer is good, he will turn just about any Fair Use argument into a First Amendment argument. To do that, your use has to be fair. If you're going to claim Free Speech (or more liberally, "freedom of expression"), then the expression has to be yours. Do not exceed your rights.

Go on and read the editorial. Frankly, Ross' argument sounds reasonable, when you discard the inflammatory headline. Basically, he argues that requiring Fair Use statements to be included in copyright statements would be misleading and encourage people to mistakenly violate copyright. Personally, I think that really depends on the exact wording of the statement.

He's operating in his members' interests to get people to err on the side of caution. Obviously they would prefer that people be afraid of consequences and not copy at all. As for me, I think that denying one person his rights (fair use) is more grievous than infringing another person's government-granted privilege (copyright). I feel that any other interpretation is morally warped, at best. Ross writes:
I don't think we want copyright warnings to become a fair use public service announcement. No, these warnings do exactly what they're meant to do--notify consumers in a succinct fashion that infringement has legal consequences. Going further has risks; for example, describing fair use merely as a "consumer right" can lead otherwise well-meaning individuals to infringe on content and face civil or criminal liabilities, because they only paid attention to the misleading disclaimer forced into the notice and acted in a way that wasn't covered under "fair use" as legally defined.
There should be no surprise that I believe that failure to inform a person that he has Fair Use rights under Title 17 can suppress the free speech rights of persons that would otherwise use the material in a completely fair and legal fashion; thus impairing the progress of science and useful arts, violating the freedom of the press, and damaging the society as a whole. (Even worse is attempting to deny them entirely through the use of DRM, which is outside the scope of this discussion).

There should be no question about whether a Fair Use notice should be included in those scary, scary copyright notices. The only discussion should be what form that notice should take.

IANAL. But my vote carries the same weight, regardless.

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