McCain Responds To Jackson Browne Lawsuit: Here's How Fair Use Works...
from the indeed dept
During the presidential campaign, we noted that singer Jackson Browne had sued the McCain campaign for the use of one of his songs in a commercial. The McCain campaign has filed a response to the lawsuit, first noting that it wasn't the McCain campaign that used the song in an ad, but the Republican Party of Ohio. Second, the campaign points out that the use of the song probably qualifies as fair use:"Given the political, non-commercial, public interest and transformative nature of the use of a long-ago published song, the miniscule amount used and the lack of any effect on the market for the song (other than perhaps to increase sales of the song), these claims are barred by the fair use doctrine."Of course, between this and the McCain campaign's attempt to get YouTube to apply different fair use rules to presidential campaign videos, it makes you wonder if Senator McCain will actually try to do something in the Senate to improve copyright law to make fair use more explicit and make it clear that it covers these sorts of actions. Somehow I doubt it.
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Filed Under: copyright, fair use, jackson browne, john mccain
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Fair Use
START
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
END QUOTE
Note that Fair Use does not include the unauthorized use of copyrighted material in a partisan political advertisement. Further, it is an outrageously cynical and extra-legal argument that taking someone's property helps revive sales. The decision as to how to promote sales of an old song is the sole right of the person who owns the copyright.
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Fair Use
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Hoping not to set a precedent?
The first part isn't very persuasive if you were in that section of the public who, after listening to McCain's campaign arguments then decided that electing that candidate wasn't in the public interest. Also, why should politicians be allowed any special privileges with respect to copyrights? Are they our public servants, or do they think they are a new class of lords?
Since the rest of the argument looks weak to me, perhaps the transformative claim will be where the sparks will fly. The trouble is that playing a song on a different stage than usual isn't very transformative just because the purpose is political. If you uploaded some metallica song for political reasons, I think the RIAA would still come after you, so how is this different?
What they did is likely legal and will probably win, but they're not breaking much of a sweat with that argument, almost like they're kissing the feet of the content-control crowd. On the other hand (equal time?), Obama just named Daschle to join his cabinet... I just hope he's not a bad influence and there's something to keep that #1 RIAA voting record type real busy doing something completely unrelated.
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Re: Fair Use
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Re: Fair Use
I am shocked - shocked I say !
This is an outrage
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fair use
It's the same as if Coca-cola used it to sell a sugar water product.
That isn't "fair use", it's stealing ...
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Re:
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Re: Re: Fair Use
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reading too much into this
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Re: Fair Use
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Re: Re: Fair Use
You paid for your despite scum? What is that, exactly?
And I am not despite scum despite your silly claim.
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sdf
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Question: "Will Sen. McCain actually try to do something in the Senate to improve copyright law?"
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I am not a copyright supporter DESPITE attempting to remain legal in my actions
For the record, I do not and have not downloaded ANY song that I do not own the CD for. I do not play games that I do not have legal licenses for.
That being said. I DO NOT play ANY games or listen to ANY music from original media. I have been subject to far too many broken and scratched CDs, DVDs, video tapes, etc. It is well within my rights as a consumer to protect my investment. It is well within my rights to keep a valued chair in my house from damage by covering it with a tarp or such, but why is it not within my rights to prevent damage to my license (the physical CD/DVD itself) by backing it up. Some older software used CD-keys...that was the license...Microsoft still uses a key as its license...so, it's not a big deal to use the original because they are replaceable for only costs of shipping. However, for most digital media that comes with the purchase of a physical DVD or CD, that disk IS the license itself. It is NOT replaceable should it be damaged...so I take it upon myself to protect my investment.
That being said, the real reason that I do not support current copyright law is because I can only see it as the taking of rights from common people. That bothers me. You CANNOT legislate morality/ethics. It NEVER works. And, to top it all off, it ALWAYS backfires...inevitably, someone comes along who is willing to twist the law to work for them...You do NOT want to become the enabler(fair warning to fundamentalists of any kind...).
I read this site because I see a group of people who clearly want to defend their rights and I am glad to see that some people here do stand up for others' rights. No matter what I feel is right or wrong, nothing comes from forcing someone to live the same way that I do...it only causes more problems.
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it's all
Viva la Californication of America!
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it's all
Viva la Californication of America!
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Re: I am not a copyright supporter DESPITE attempting to remain legal in my actions
That's from your point of view. From their point of view you are a criminal as long as presenting you as such allows them to make more money. You see, it doesn't matter to them whether you are following the law or not. What matters is whether they can make it look like you're not (under some bizarre contortions of laws if necessary) so they can get paid.
If they can't do that, then don't worry, they will try to pass new laws to criminalize your existing behavior. Thus, for you to stay legal making those backups, you will need to pay them for each copy. Then you will need to pay them for each device you listen to them on. Then you will need to pay them for each time you listen. If at some point you get sick of them and destroy your discs... OMG, you have destroyed their property!
Over the course of history, copyrights have been extended and expanded, fair use diminished, and it's not unreasonable to suppose that the content control crowd will try to maintain that trend until everyone can be charged with (or for) something.
So, to sum up, you cannot hope to please them, because knowing that you are behaving perfectly doesn't pay the bills. What they want is your money, and if they can't get it then they will try to pass favorable laws, and if they can't get that, they will sue device manufacturers into adding protections and other garbage that make your life difficult unless you cough up more dough.
Ironically, they would be more pleased if you broke their pet laws because that only helps to strengthen their argument that they are victims and need to be compensated with either more money or more laws.
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Re: radio stations?
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Doesn't matter who
Interesting, though, that the Repubs are so gung-ho to let MS get away with monopolistic practices, let the RIAA prosecute people by using anonymous warrants against ISPs to get info about file sharing (US law requires evidence prior to warrants, not fishing trips to see what may be out there) but when it comes to them they feel it's okay to interpret the law to their own use.
No wonder the election went so badly against them.
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Re: Doesn't matter who
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copyright..ha ha ha
As mentioned somewhere above the playing of this clip boosted interest in the song and artist.I guess Brown should be thankful that he didnt have to pay for the P.R. work.
This is 2008 not 1970..we have computers now and things are free if you know where to look.When the government starts to crack down on the big boys overseas from stealing our technology and brings back our jobs and job security I'll stop.Were farming out all our industry and then bringing it back here to be sold at Walmart..God Help Us.
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Re: Fair Use
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Just another bootlegger...
against the will of the artist is "fair use" is on
crack. The relevant work may be old enough that it
shouldn't be protected any more. However, that's not
what this is about. McCain has not been trying to use
that as his excuse. He wants exempted from the rules
that he wants to force on everyone else.
The work is either PD or someone from the McCain cabal is a thief.
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Song and politics
Morally he's wrong. It's not a question of money. Playing
an artists performance in a political ad leaves the impression that the artist supports the political message.
An *artist* should be able to prevent their *art* from being
used to support a political cause they disagree with.
If the law doesn't read that way now, it should be changed!
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Re: it's all
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Fair use HOW?
I'm all for 'fair use', but IMHO this isn't it. Someone needs to be paying some performance royalties here.
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Royalties due
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