New Content Industry Talking Point: Fair Use Is Bad Because It Leads To Litigation
from the say-what?!? dept
While we were initially skeptical of a planned review of copyright law in the UK (after all, it had been done just five years earlier, with most of the key points then ignored by the government), we were encouraged by some of the folks who were included as a part of the process. However, it looks like, once again, politics may have gotten in the way. We had laughed at the ridiculous claims from the UK copyright industry folks that fair use was bad and would put a "chokehold on innovation." After all, we have fair use in the US, and we've seen no evidence that fair use holds back innovation in any way, shape, or form.And yet, as the report is about to come out, reports are leaking that the committee has decided not to support an American-style fair use law in the UK. The suggestion is that they bought the ridiculous claim from the entertainment industry that fair use is a problem because it leads to a lot of lawsuits:
According to sources close to the review, the panel decided fair use would be too problematic to replicate from scratch in UK law because it emerged from a number of US case law precedents. Fair use, which is employed as a defence against infringement claims in the US, has also given rise to a high volume of litigation.Frankly, this makes no sense (at all), unless there's a lot more to it. Yes, fair use in the US developed through case law, and was then codified in 1976. And, yes, there has been additional case law on the matter since, but the UK now has all of that case law to look at, and it's entirely possible to write smarter fair use laws today. You can't just throw up your hands and say because it developed out of case law in the US that it leads to too much litigation. The proper response is to better define the contours of fair use, such that there need not be as much litigation. Tragically, that appears to be unlikely this time around.
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This explains the entirety of copyright.
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My new talking point
Patents are bad because they lead to litigation.
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Re: My new talking point
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Laws are bad because they lead to litigation.
...all roads lead to litigation?
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By that logic...
In fact, if we just removed courts and laws, there will be no litigation at all!
(Problem solved.)
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This does not mean it cannot be done, but only that the system of laws in the US and the UK do not fully coincide.
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It is true that is is now viewed as the safety valve by which the First Amendment coexists with the Copyright Act, but it it does not follow that the conforming parts of the Copyright Act could not exist without the First Amendment.
That is a sort of post hoc ergo prompter hoc error, there.
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And so what ? the US is not the model for the rest of the world you know ?
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Perhaps we should...you know...stop making laws for other countries.
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Yeah, that's right ... err no wait ... that's not what I meant. Ok, only the laws I like should be adopted overseas.
You freetards are always twisting the words about
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Never said it was. Did you even read the next sentence which explains why I said that?
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US influence
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You keep saying that word (causation)...
Self-defense should be abolished because it "gives rise to" far too many murder prosecutions!
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Re: You keep saying that word (causation)...
Self defense leads to too much litigation and we can not have that sort thing.
Claim that fair use is a right and not a self defense in 3..2..1
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Litigation is the fault of the industry..
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"If you include fair use into your laws, it will cause me to sue more people, and you don't want that".
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Fair use would be a bad thing in the UK
As it is, it doesn't seem to be working that well in the US - it seems to be every other week there's a story on TechDirt about copyright lawsuits with an obvious "fair use" defence. PPUk recommended that rather than creating a new, vague defence, we limit the scope of copyright to when it is actually needed rather than expanding the defences.
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It's too hard to implement fair use
On the other hand in such locales 'Fair Dealing' could be permissible for where moral rights are limited, as in works for hire. In the U.S. copyright infringement is focused on commercial values (losses), while moral rights can also encompass less tangible value.
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Is that really what they're concerned about? Because if so we could save a lot of trouble and just get rid of this whole copyright thing. That would certainly lead to less litigation.
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http://www.techdirt.com/articles/20110428/13214514072/bogus-infringement-takedowns-da nger-relying-third-party-services-with-no-backbone.shtml#c518
The burden is on those who want monopolies to exist to justify their existence and they must also show that the social benefits of such monopolies outweigh any harm they cause. The reason I want IP abolished is
A: IP causes many problems.
B: The burden to justify their existence has not been met. It hasn't even come close to being met. Since the burden is on IP proponents to justify the existence of IP and that burden has not been met, IP should be abolished.
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A: IP causes many problems.
B: The burden to justify their existence has not been met. It hasn't even come close to being met. Since the burden is on IP proponents to justify the existence of IP and that burden has not been met, IP should be abolished.
I think you have a very strong argument there, but I do think it ignores the impact of the status quo. In an idealistic world constructed from scratch, yes, there might be no case for IP. But our starting point is the real world, where we do have IP and where there is a massive transaction cost to the change. "Abolishing" IP per se isn't really feasible as a proposition, given the lie of the land.
I also happen to think IP CAN be a good system when properly limited, though (needless to say) it's not at the moment.
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The massive transaction cost hurts those who benefit from these laws, that is, mostly those who are the ones who lobby for these laws. As far as I'm concerned, those people should be in jail for all the harm they caused the public (that includes, but is not limited to, the pharmaceutical industry and the **AA). Any 'harm' that IP abolition causes them is the least of my concerns. To me, it's no different than saying that preventing bank robbery has transaction costs. Those transaction costs are to bank robbers, but who cares.
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You meant to say it ignores the impact to the status quo. I'm not ignoring the impact to the status quo, it's just that this impact is the least of my concerns.
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My point was that if you imagine we can create an ideal world, starting with the void and writing laws from scratch, then the question of "What law should we implement?" can be reasoned out in the way you've done.
But given that we can't, and we have to work forward from the way things are just now, the ideal course of action has to take account of where we are standing today. That is, we have to consider the impact of the status quo, on the question of how the law should be proceeding.
I think it's probably a little shortsighted to suggest that the transaction cost of abolishing IP would be borne only by the content industry.
Consider for example (the status quo:) how ingrained the idea of copyright is in public consciousness. To get support for abolishing it completely, you'd need a massive and expensive re-education campaign, and that's even if you pretend "re-education" can succeed. Consider that (the status quo:) the content industries have massive funding, impressive lobbying expertise and are well-versed in persuading the public of how essential copyright is.
I think that, taking account of the status quo, there is at present absolutely zero prospect of successfully abolishing the IP system outright. And I think most people with a grounded view of the matter say the same. So arguing for it is not just a waste of time and energy that could be better spent achieving real change, but it's also counterproductive - it just makes it even easier for the content industry to paint advocates of better copyright as clueless and out-of-touch with reality.
Much better, I think, to advocate gradual change towards a more effective system.
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So instead of abolishing (race based) slavery, lets just place restrictions on slave holders to help ensure the safety of slaves.
If slavery shouldn't exist then it should be abolished. Likewise, if IP shouldn't exist then it should be abolished. IP is wrong. I haven't seen sufficient justification for its existence. I want it abolished. I will continue to advocate its abolition. I don't care what the current state is because the current state of things is irrelevant to what should be. I will continue to advocate what should be.
"I think it's probably a little shortsighted to suggest that the transaction cost of abolishing IP would be borne only by the content industry."
It would be borne to many (as I mentioned above, many in the pharmaceutical industry would suffer, among many others). But those who would incur the costs deserve it and more.
"Consider for example (the status quo:) how ingrained the idea of copyright is in public consciousness."
Given how much the industry complains about mass piracy, I do not think the public cares about maintaining these laws all that much. If so many people are pirating then clearly these laws aren't all that important to people. I very highly doubt it is the public that wants 95+ year copy protection laws. No, these laws aren't a product of a public consensus, they're a product of a one sided industry based decision. and, despite the fact that the mainstream media and our educational system has been spending a ton of resources trying to brainwash everyone into supporting these laws, I still see very little evidence to suggest that the people really want these laws. I remember, for instance, much earlier on, one of Obama's talking points was that he will reduce patent lengths for pharmaceuticals (or at least the extension that the FDA can grant). Politicians themselves seem to understand the public support they get by advocating for less strict IP laws. It was the media and the industry that seemed to not like the idea. and despite the fact that our monopolized mainstream media (a media that benefits from govt imposed monopolies) is very one sided on this issue, often only presenting one side of the issue while censoring criticisms and negative information about IP (ie: the info that we get here on Techdirt), there still seems to be little evidence that the people want these laws. In the face of the many criticisms we see here on Techdirt, I think it will be easy to convince the public that these laws are nefarious. Heck, I think many of them already know. People aren't stupid.
"it just makes it even easier for the content industry to paint advocates of better copyright as clueless and out-of-touch with reality."
It's not easy to paint advocates of better copy protection laws as clueless and out of touch with reality. Sure, it's easy to try, but it's hard to sell. People aren't stupid and no one (besides our bought politicians, but they're bought anyways) believes it.
"Much better, I think, to advocate gradual change towards a more effective system."
You assume that advocating IP abolition must either only accomplish abolition or IP stasis/expansion and that it can't accomplish IP reductionism (or the retardation of its expansion). While I would like IP abolished, it's perfectly possible that demanding IP be abolished could result in a reduction in IP protections.
"and are well-versed in persuading the public of how essential copyright is."
I don't really see this working very well. People aren't stupid.
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So you should work towards the abolition of slavery - clearly. But if the overwhelming majority of people will not yet take seriously any proposal to abolish slavery, then campaigning to abolish slavery is a counterproductive, time-wasting way to work towards the end goal. That is my point. Maybe you're right and IP should be abolished, but shouting about that while no-one will listen is far less effective than shouting about gradual reform that makes people pay attention.
I haven't somehow failed to see that advocating full abolition might in the meantime achieve weaker IP laws (please appreciate that we disagree but I'm not stupid). My point is that if we advocate a gradual loosening of the current laws then there's a case for opponents to answer; if we advocate the total abolition of all IP then they can laugh off the "freetards" who don't understand how the real world works.
We obviously disagree on whether there is a public appetite for the full abolition of IP. You think everyone will suddenly get on board with abolition if we keep doing exactly what we've been doing; I don't. I can tell I'm not changing your mind but do remember that it's very easy to read only Techdirt, Lessig, Boyle etc and convince yourself that everyone agrees with you... but I really don't think everyone does. Don't get me wrong, I AGREE with you on the need for less IP, but I think it's very naive to believe that everyone else is suddenly going to take seriously proposals for its abolition. Frankly I'd say the state of our current laws is pretty clear evidence that there is next to no broad appreciation among the public or among politicians of the dangers of IP.
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Let's not parse the report beyond all meaning...
There's less room for judicial interpretation, so it's less flexible because it generally requires legislation to add new exceptions... but by the same token, it absolutely does reduce litigation by virtue of its being far more certain. That in turn means it's far more reliable, which means a "fair deal-er" can go ahead and create without needing enough in the bank to fend off a potential lawsuit. It means far less of the infringement-intimidation, bullying tactics that everyone hates, because litigation is generally NOT a necessary step in exercising users' rights.
That's what's being proposed here - that the UK stick with the well-defined and reliable system rather than move to a more flexible but less-certain one.
Indeed, from the linked article it actually looks like the review recommends broadening the system of exceptions - among other things with a format-shifting exception (long overdue for the UK) as well as proposals for access to orphan works, which I think would put it actually ahead of the US, unless anyone can correct me on that?
Let's not focus on one miniscule clause and lose the bigger picture of what is, I think, looking like a victory for good copyright reform in the right direction.
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Broad exceptions > flexible exceptions
Even as it is, Canada's existing system of fair dealing still has most of the same uncertainties as the U.S. system, so making it more "flexible" probably couldn't do any harm. But it might not do much good either, if users can still be threatened with a lawsuit. It would be much better to just have well-defined, broad exceptions to copyright, so that people can engage in all sorts of reasonable uses without any worries that they are going to get sued.
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