Copyright Lobby Continues To Pretend Fair Use Is Not A Right

from the can-we-kill-this-myth? dept

Fri, Sep 7th 2007 1:56pm — Mike Masnick

Recently, we had a post about yet another overreaching copyright statement on a website that made claims to rights that copyright simply does not grant. In the comments, someone responded with the silly line that fair use is not a right, it's just a "defense." This is both wrong and misleading. It is true that fair use is a defense that can be used in court -- but the reason it can be used as a defense is because it's a right provided to people who are making use of copyrighted works without permission. This was explained quite clearly by Adam Wasserman in our comments.

Apparently, the whole "fair use isn't a right" line is a part of the copyright lobby's talking points this week, as Patrick Ross (who is paid to promote stronger copyright laws) has written up an entire editorial at News.com stating that fair use is not a right. He's flat out wrong. The entire reason that a fair use defense is allowed is because it is a right. The rest of Ross's argument is typically misleading or outright wrong. He never explains why it's okay for companies to exaggerate and lie about what copyright allows them to do -- other than to suggest it would just be too complicated to have a copyright notice that accurately explains fair use. It may true that it would be cumbersome, but that doesn't explain why copyright holders get to lie about what kind of protections copyright provides them. Ross, as per usual, believes that the rights of the copyright holder are more important than the rights of the user (which is exactly the opposite of why copyrights were put in place in the first place). Therefore, he writes as though trampling on users' rights is no big deal, as long as it protects all copyright holders' rights. Unfortunately for Ross, our nation's founders were quite worried about the dangers of granting monopoly protection and were much more focused on protecting the rights of citizens to make use of information. They were quite clear that monopolies need to have their limits -- and too many companies are overstepping those limits.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, fair use, lobbyists, shills

17 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous, 7 Sep 2007 @ 2:41pm

Going to Pot.
Every article I read like this just makes me see that industries are fighting for the rights of they're selfs and not for the consumer. Seems like they all just care about how much money they are making and not offering us what we want. They have nothing better to do than to make mountains out of molehills. Copyrights do need some revisions/changes made to them, but not in favor of the company but for the consumer. It's not our fault that we have become educated and don't do exactly what they want us to and we know what we want. Stop fighting the change and roll w/ it and you'll make more money than ever is all I have to say.
[ link to this | view in thread ]
Anonymous Coward, 7 Sep 2007 @ 3:09pm

Re: Going to Pot
Huh?
[ link to this | view in thread ]
Alan, 7 Sep 2007 @ 3:09pm

Legally speaking, fair use is not a right in the sense that copyright holders have no obligation whatsoever to ensure that others can exercise fair use, unfortunate as that may be. In any case, most copyright notices are purposefully misleading propaganda designed to deceive not only the public but to influence law makers: Repeat something often enough and it is true.

But it is irrelevant, even as an affirmative defence and not a 'right' the same problem remains: copyright holders dupe the public into believing that they are not legally allowed to copy materials at all without their permission. No Patrick Ross, we don't want you to do public service announcements, we want you to stop the bald-faced lies. And how dare you try to defend this shit as free speech.
[ link to this | view in thread ]
internetjoe, 7 Sep 2007 @ 3:28pm

NOTnews.com
News.com or Cnet is not a news organization but a shill for for Microsoft. This point of view is quite expected. Seen any Pro or even fair to Apple stories this week from them?
[ link to this | view in thread ]
Adam Wasserman, 7 Sep 2007 @ 3:32pm

Fair use IS (I repeat) a right
An affirmative defense means admitting guilt and then pleading extenuating circumstances. Webster's Law Dictionary has this to say:

"a defense that does not deny the truth of the allegations against the defendant but gives some other reason ... why the defendant cannot be held liable "

However the Copyright Act clearly states that Fair Use is NOT infringement. (see my other comments in the link above for the full text) Since it would by definition mean admitting infringement, the specific legal term "affirmative defense" is not applicable to anyone who pleads Fair Use in defending themselves in a civil suit.

This is a prime example of repeating something false until people believe it it be true.

Adam
[ link to this | view in thread ]
T.J., 7 Sep 2007 @ 3:50pm

I love that every comment on there disagrees. You would think that maybe legislators and courts would see that the majority of Americans (and people from other countries) are opposed in some form to stricter copyright laws. Unfortunately, however, the average American doesn't invest billions of dollars in "gifts" to Congress every year, so our voice will once again go unheard. With guys like this with the hands in pockets across the country, I don't forsee any "new laws" coming out in the favor of anyone but him.
[ link to this | view in thread ]
Jason Phillips, 7 Sep 2007 @ 4:00pm

Patric Ross is wrong: A short example of why.
This guy is what is wrong in the world of copyright law. From his article:
"Fair use, as CCIA must surely know, is not a "consumer right," but rather an affirmative defense. And this is an important difference. It's true that copyright law contains some exemptions, such as commentary and criticism, where one may be able to use a copyrighted work without authorization, but the full extent of those exceptions is intentionally not defined in the statute. (In one example of fair use, CNET is free to report and comment on newsworthy events and to offer informative consumer reviews of new products.)"
My emphasis. Let's see. "C-Net is free to report and comment..." That certainly sound like a freaking right to me. From Merriam-Webster's website:
"something to which one has a just claim" and "something that one may properly claim as due."
Under these definitions, C-Net's freedom to report, and comment is a Right. Here's the fun part. he glosses over the manner in which C-Net is able to report or comment. I'm sure that this is because he is afraid; afraid of the type of Right that is set forth to the teaching stipulation in the copyright law. It implicitly states that 'multiple copies' of a copyrighted work can be fairly used. That, as out lawyer friend would say "implies" that a single copy is intended for fair use under other stipulations, such as his C-Net example. So using an implication, as lawyers ofter do, I have established that if I am C-Net, I can use a copy of say, a pamphlet in a review of a sporting event. That is a specifically implied type fair use. Now, if I am sued by that sporting event for use of that pamphlet, then I will win, and will be able to continue to use it because of fair use. So now, I have been granted, by the law and now by a Judge, the RIGHT to use that pamphlet. So there. That is how fair use is a right.
The problem is that Mr. Ross seems to believe is that there is no such thing as a right until it is defended in court. That is a fallacy, and it is proven so by other rights that Americans enjoy. But it is exactly the belief that a lawyer would for everyone to have.
[ link to this | view in thread ]
Lance Fisher, 7 Sep 2007 @ 5:38pm

It is a right
Fair use is as much a right as copyright is. The article is just obfuscation.
[ link to this | view in thread ]
A chicken passeth by, 7 Sep 2007 @ 6:37pm

So... tell me again why we pay for something we don't own.
[ link to this | view in thread ]
Clair, 8 Sep 2007 @ 3:38am

Maybe the person is just trying to confuse the rest of the world so that he'd be a champion or something? For copyright, that is.

Seriously though, it appears that monopolies seem to fear so much. For one thing, it's not like they're going to crumble down in one day. For another, it's probable that they just want to cover their tracks or something. For all we know they're the ones who've been really trampling on copyright though they want it to appear that they're the aggrieved ones.
[ link to this | view in thread ]
Anonymouse, 8 Sep 2007 @ 9:38am

Fair use is a right, yes, but it's a right that has never been clearly defined - the reason it's called a defense is that there are no set parameters for what fair use actually is. If there were, everyone would follow those guidelines, and these suits would disappear long before they got to court. For now, all you can do is assert your right as a defense to a copyright suit, and hope for the best.

Until the courts tell us exactly what constitutes "fair use", we're going to hear this again and again from the Industry.
[ link to this | view in thread ]
inc, 8 Sep 2007 @ 1:08pm

Yet another example of corporations slowly chipping at our rights while greedy politicians accepting money to stop asking the tough questions.
[ link to this | view in thread ]
It's me again.., 10 Sep 2007 @ 7:37am

Re: Fair use IS (I repeat) a right
First, I'd like to thank the author of this article for calling any disagreement with his views "silly". It's quite refreshing to see someone not insulting those who disagree with them.

/sarcasm

Now that that is out of the way...

Fair use must be determined in a court of law. There's no way around that. If you look at copyright law, it even states, barring the exceptions you listed last time, that in order for an act to be considered fair use, it must be *found* to be non-commercial, insubstantial, or non-damaging to the Copyright Holder. It also states below that, regarding non-published works, that it "shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

The wording is pretty clear. It must be found to be Fair Use in court.

Now, I'll give you that the Copyright Act provides limitations to the rights of the copyright holder, which could then possibly be construed as rights to certain individuals in certain situations. However, I have a *real* hard time calling *anything* that needs to be justified in Court *every* instance as a "right".

That's my beef. Take it however you wish.

As to your last comments in the previous thread regarding the "get rich quick" aspect of copyright, you missed one of the points I made in a response on that thread, and I quote:

"Point of opinion: Our current model of copyright is in *serious* need of overhaul. We need only look to Germany (Limited Copyright) or Russia (Community Copyright) for examples that far exceed our in terms of fairness and common sense."

I am in agreement that our copyright is *far* to easy to extend, transfer, and retain for absurd amounts of time. I also agree that it is no longer fulfilling the original intent of promoting creation of content for creativity's sake.

...just so you all know I'm not some RIAA/MPAA shill.
[ link to this | view in thread ]
Mark Murphy, 11 Sep 2007 @ 7:54am

Re: Re: Fair use IS (I repeat) a right
The wording is pretty clear. It must be found to be Fair Use in court...However, I have a *real* hard time calling *anything* that needs to be justified in Court *every* instance as a "right".

I guess then you feel that people have no rights.

As an example, let's look at free speech. Freedom of speech is enshrined in the First Amendment, part of a block of amendments commonly referred to as the Bill of Rights. If anything in the U.S. Constitution would seem to be a "right", freedom of speech would appear to qualify.

Yet, Congress passes legislation that restricts freedom of speech, such as campaign finance reform. Whether or not you feel that campaign finance reform is great or sucks, there is no question it constrains freedom of speech by regulating the content of political advertising.

Now, political advertisers can jump up and down and cry "Freedom of speech! You can't stop me!", but that will do them little good outside a court of law. Either they run the ad and get taken to task by the FEC, or they are blocked from running the ad by media outlets. In either case, their claim to First Amendment protections won't take effect until a court rules in their favor.

At the end of the day, courts are the arbiters of all rights.
[ link to this | view in thread ]
Anonymous CowHerd, 11 Sep 2007 @ 11:00am

Re: Re: Re: Fair use IS (I repeat) a right
Nice.

Free Speech?

Did you *miss* the "Every instance" bit?

...or are you trolling?
[ link to this | view in thread ]
Oldster, 11 Sep 2007 @ 12:54pm

re:
The Fair Use provision isn't a "right". Rather, it establish the terms and circumstances under which copyright holders may NOT asert their rights.

That Ross attempts to spin this into an argument that negates the "right" to fair use is reprehensible. Equally reprehensible is CNET 's willingness to provided him with a pulpit to preach this drivel.
[ link to this | view in thread ]
fan, 12 Sep 2007 @ 1:31pm

Hear Hear!
There is a Christian music agency that "sells" churches the "right" to sing copyrighted Christian songs in worship services, even though this is one of the fair use rights.
[ link to this | view in thread ]