Copyright Week: Fair Use Is Not An 'Exception' But The Rule
from the it's-your-rights dept
Update: This post was modified to better explain the role of the three-steps test in both Berne and the TPP.Today is day five of Copyright Week, where the focus is on fair use. Earlier today we already had Michael Petricone's excellent post about the innovations and consumer benefits unleashed by the Betamax ruling, which hinged on the concept of fair use. Over at Wired, Automattic's (the makers of WordPress) general counsel, Paul Sieminski, also has a great post talking about how much innovation is enabled by fair use and why companies should be fighting more to support their users' fair use rights. Meanwhile, over at Public Knowledge, there's a good discussion of how the flexibility of fair use is important in enabling it to respond to new innovations. These are all great ways of looking at the issue.
I wanted to focus on a different aspect of fair use, however, and that's the unfortunate fact that it is often described (especially in official political discussions) as an "exception or limitation" to copyright. That implies, incorrectly, that copyright is "the normal state" and that fair use is something that can only be used in "exceptional" cases, where a political body has decided to carve out some small breathing space. But that's wrong. Fair use is about the rights of the public to speak, to make use of content, to comment, to criticize and to express themselves.
These are fundamental rights of the public -- not "exceptions or limitations."
It is, instead, copyright that has always been an "exception and limitation" on the rights to free expression. We can (and should) discuss and debate the proper levels of copyright and its limitations on expression. But to frame things as if fair use is a minor "exception" is a subtle but dangerous twist of language that copyright maximalists have been employing for far too long.
And it's a public right that is under threat. While negotiators were (after decades of negotiating) able to work out a WIPO Treaty for the Blind last year, copyright maximalists fought hard against it, because they were convinced that any attempt to expand what they called "limitations and exceptions" would set a dangerous precedent. And, if you look at things like the Trans Pacific Partnership (TPP agreement), the USTR tried to take credit for it being the first time that it was willing to include "limitations and exceptions" in a trade agreement. That, on its face, is true (and it's better than previous agreements, like ACTA, which ignored fair use and the public's rights entirely), but the wording does not in fact establish any limitations or exceptions: it sets out parameters that curb what limitations and exceptions countries are allowed to offer. The wording is based on a three-factor standard that is actually more restrictive than current fair use laws in the US. The standard is clearly modelled after the Berne convention, to which the US is already a signatory despite several differences, such as fair use, between US copyright law and that treaty's requirements. The TPP's "exceptions" would only serve to solidify these inflexible fair use requirements that the US currently, mercifully, defies.
Pay close attention to this issue as we go through the copyright reform process. Fair use isn't just some limitation or exception. It's not just -- as some have said -- a "valve" on copyright restricting speech. It is, instead, core to the very concept of free speech. It is the public's rights. Don't let the language twisters try to frame the debate as one about "limitations and exceptions" because if that's the debate, we've already lost. Fair use doesn't just enable all kinds of important innovations -- including much of the internet you use and love today. It represents a fundamental right of you to express yourself, and that right must not be taken away.
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Filed Under: copyright, copyright week, exceptions, expression, fair use, free speech, innovation, limitations, public rights, rights
Reader Comments
The First Word
“Considering the long history of attacks from slippery slopes on freedom of speech, I can guarantee that the copyright maximalist who claims that, when it comes to his utopian vision of property, somehow freedom of speech is ITSELF the slippery slope, that maximalist has not the faintest hint of modesty whatsoever.
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The core problem
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Re: The core problem
It doesn't just include that right; the right to repeat others' speech is essential to free speech. Without it, there is no criticism, no discussion, no context. Our only "speech" would be a lone voice in the wilderness.
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Re: Re: The core problem
I think the argument here is that free speech, taken to the logical extreme "true free speech", would cover infinit repetition.
As soon as you start to limit any kind of free speech you truely have to think about if the ends truely justify it. Some would say the ends never justify any kind of restraints on free speech, but to be fair, some kind of limits can be very advantageous/"needed" sometimes for the kinds of societies we live in and have around us.
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Considering the long history of attacks from slippery slopes on freedom of speech, I can guarantee that the copyright maximalist who claims that, when it comes to his utopian vision of property, somehow freedom of speech is ITSELF the slippery slope, that maximalist has not the faintest hint of modesty whatsoever.
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No, someone else's copyright does NOT limit what you say independently!
"Fair use" must first be FAIR, THAT'S THE ONLY REAL LIMITATION. "Fair use" is not "FREE USE". Does not include taking entire movies and putting them up on "file sharing" sites for anyone to download. Does not include Kim Dotcom getting millions simply by hosting those files: that's UNFAIR competition with the creator. You can't compete with free when it's your own product!
But conflating "fair use" with "FREE for anyone to steal" is Mike's goal. See comment #10 of Mike's "core concept" piece: his "can't compete" false example:
http://www.techdirt.com/articles/20070215/002923/saying-you-cant-compete-with-free-is-sayin g-you-cant-compete-period.shtml#c115
If you can't express yourself without using the works of others, then you're primarily a dolt. If you wish to comment on the works of others, then you're obliged to take only snippets.
You are indeed trying to turn "fair use" into an everyday notion that anyone can take the ENTIRETY of copyrighted works.
And then you conflate the globalist corporatist TPP into this! Tagline:
If you advocate taking copyright away from Disney after its long abuse and extension, then FINE! -- But don't at same time empower today's mega-corporations to steal creative works from the poor. Those are not similar cases. Doing away with ALL copyright is even more criminal than the current mess. -- Make a means test for copyright, prohibit it entirely to corporations, and prevent them from raiding the public domain.
Mike frequently runs items on "copyright abuse" intended to STIFLE expression knowing full well that his fanboys then consider all copyright bad and use those bad acts to justify their own STEALING of content. As Mike never runs items condemning STEALING, it's difficult to see how he "supports copyright". -- Mike sets up a false alternative: in fact, BOTH STIFLING AND STEALING ARE BAD.
08:54:19[j-917-1]
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Re: No, someone else's copyright does NOT limit what you say independently!
Well, I never thought I'd say this, but, yes, OOTB, you are correct: fair use permits otherwise infringing uses only if they are fair under the circumstances. The famous four factor test is just an aid to help determine if the use is fair or not.
Unfortunately, all things must end, and you're wrong when you say: You are indeed trying to turn "fair use" into an everyday notion that anyone can take the ENTIRETY of copyrighted works.
Well, not anyone, everyday, all the time, but yes, under the right circumstances, a fair use can be the use of the entirety of a work.
Remember: fair use only applies to uses which are fair under the circumstances, but any use can be fair given the right circumstances. There are no uses which are flatly prohibited from ever being fair. At most, it's just unlikely.
The Supreme Court felt that some time shifting might be fair, in Sony v. Universal, and that involves taking the entire work. And the 9th Circuit felt that some space shifting might be fair, in RIAA v. Diamond Multimedia, and that involves taking the entire work too. (Meanwhile, when the user took only snippets in Harper & Row v. Nation Enterprises, the Supreme Court felt that was not fair; it's all about the circumstances.)
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Re: No, someone else's copyright does NOT limit what you say independently!
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"Copyright Week" is actually Piracy Week.
Fundamentals of Rational Copyright. Somewhat redundant to clarify related aspects. Don't worry if you can't grasp these all at once: I'll be using magic to post it often.
>>> Copyright is derived from the facts of existence; it is natural law and cannot be narrowly defined; it is self-evident like the US Constitution itself which is only valid UNDER common law; statute is at best tertiary.
) Creators inherently have SOLE RIGHT TO COPY their work.
) Creating is and has always been more difficult than copying.
) The special provisions in law for copyright stem from the above 2 facts. It's specific setting out of "intellectual property" rights for creating works given the relative ease of copying.
) Copyright specifies WHO can gain money from the works, AND that no one else is to gain money from them. (For a limited time, but after in public domain, it's still unethical to grift on the work of others; ONLY the cost of reproduction should be charged.)
) Copyright law is indeed exactly to prevent TWO types of THEFT (during the limited time): 1) by commercial scale copiers directly profiting 2) by the general public taking the work without rewarding creator. Only creators may make copies or attempt to gain from it during that (limited) period.
) There are NO rights whatsoever granted to or held by copiers. No one's "right to copy" is at any time removed or diminished because it never exists prior to the creation of a work.
) Morally and practically, copyright is valid because exists independently of and without conflicting anyone else's rights. -- Pirates obviously want to deny the moral basis of "I made it, therefore I own it", and for practical objection point to the increasing controls that they cause by stealing.
) Machines doing the labor of copying doesn't confer any new right to do so.
) Copyright has a worthwhile societal purpose to encourage the creation of various works, even if only for trivial entertainment.
) Many like to jeer that copyright exists only until a creation is shared with others -- after that you've no claim to it! Then anyone can take the work that you did and try to grift off its value for themselves. But that's advocating law of the jungle apply to creators while enabling grifters and pirates to use the very tools of civilization to STEAL the creations. It's just not FAIR. -- No one will say that laborers don't have right to the fruits of their labor (except so far as they advocate slavery, and some DO). Copyright is the SAME common law, fundamental recognition of who's due the rewards for having produced, except applies to non-material products. The creator puts in work with hopes of profit, relying on the stated terms of civilized society that the public assure monopoly for a limited time so that the very potential for rewards isn't stolen by either grifters or pirates.
) Even indirect income from in any way providing "for free" the protected work of others is clearly illegal, undeserved, immoral, and unethical.
) Putting entire digital movie / music files online for anyone to download is NOT sharing, not fair use, nor fair to its creators; it does remove some degree of potential profit and some degree of actual profit.
) Copying rights are granted by the public for the public good (or was until unilaterally changed by moneyed interests) and we all have a general duty to respect the special provisions made for creators of non-physical works.
) Possession of authorized physical media is license to access the content any number of times (which can be one-at-a-time library use, yet not "public" display). In the absence of physical media, there's no clear right to access content, only perhaps an authorized temporary permission. But at no time does possession of digital data confer a right to reproduce it outside of the terms and conditions as for physical media, no matter how easy it is to do so.
) Emphasizing an aspect of the just above point: digital data is even less "owned" by the purchaser than with physical media, not more.
) When independently rendered, fashion "ideas", "art" in general, "look and feel", jokes, bits of wit, and musical "riffs" are not copyright-able because not significant effort. Don't throw those in to confuse the topic. (Specific clarification for music: you may render "stolen" riffs to parody or add spice, but not use actual "sampled" audio as basis for your main theme.)
) Many persist in using the canard of "copyright can't guarantee income". -- Misleading. From the US Constitution it's been to assure creators a monopoly on the ATTEMPT at income from a given work for a limited time period. No one else has the right to even MAKE such attempt, nor to GRIFT off the content value either directly or indirectly (as a draw for eyes to advertisements).
) Nothing above is invalidated or weakened by results being imperfect, nor by attempts to indefinitely extend time and scope of copyright: the latter are driven by greed and should of course be resisted, but by more general means.
) If you advocate taking copyright away from Disney after its long abuse and extension, then FINE! -- But don't at same time empower mega-corporations to steal creative works from the poor. Those are not similar cases. Doing away with ALL copyright is even more criminal than the current mess. -- Make a means test for copyright, prohibit it entirely to corporations, and prevent them from raiding the public domain.
[Last revised 17 January 2014]
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Re: "Copyright Week" is actually Piracy Week.
So in other words, when trying to determine the price at checkout, a digital download of a movie/game/song/ebook should only factor in the cost of downloading - which last I checked was barely a few pennies for a multi-gigabyte game, and this cost can be lowered even further down to effectively zero if the title is distributed via peer-to-peer.
At which point, the argument you have just made shows that the cost to the customer, the price they pay = $0
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Re: Re: "Copyright Week" is actually Piracy Week.
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Re: Re: Re: "Copyright Week" is actually Piracy Week.
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Re: Re: Re: Re: "Copyright Week" is actually Piracy Week.
I do find it disappointing blue's comments are always blocked and the responses to his arguments are not. Some of his points are valid.
"Putting entire digital movie / music files online for anyone to download is NOT sharing, not fair use, nor fair to its creators; it does remove some degree of potential profit and some degree of actual profit."
I agree. While it maybe "sharing" it most certainly is not fair use. In addition, the creator or copyright holder should have control of the dissemination of the work. Isn't that the point? And when I state this, I do not mean the purpose of copyright from the 1700's but its current purpose, to maximize the commercial exploitation of the work by the right holder.
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Re: Re: Re: Re: Re: "Copyright Week" is actually Piracy Week.
I do not mean the purpose of copyright from the 1700's but its current purpose, to maximize the commercial exploitation of the work by the right holder.
Copyright's purpose today is the same as it was in the 1800's. (I say 1800's because it didn't exist in this country throughout most of the 1700's; the first state to issue a general copyright law was Connecticut in 1783, and the first Federal copyright law was passed in 1790.)
And that purpose is not, even remotely, "to maximize the commercial exploitation of the work by the right holder." "The primary objective of copyright is not to reward the labor of authors" (Feist v. Rural, 1991), but "must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts" (Twentieth Century Music v. Aiken, 1975).
Just so you know.
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Re: Re: Re: Re: Re: Re: "Copyright Week" is actually Piracy Week.
Copyright's function/effect today is to provide a limited monopoly of use by the copyright holder. This has purposeful economic consequences.
"The Copyright Act does not give a copyright holder control over all uses of his copyrighted work. Instead, s 1 of the Act enumerates several ‘rights' that are made ‘exclusive’ to the holder of the copyright. If a person, without authorization from the copyright holder, puts a copyrighted work to a use within the scope of one of these ‘exclusive rights,’ he infringes the copyright."
The full passage is necessary to provide context:
"The limited scope of the copyright holder's STATUTORY MONOPOLY, like the limited copyright duration required by the Constitution, reflects a BALANCE of competing claims upon the public interest: Creative work is to be ENCOURAGED and REWARDED, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts."
"The immediate effect of our copyright law is to secure a fair return for an ‘author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good."
Twentieth Century Music v. Aiken, 1975
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Re: Re: Re: Re: Re: Re: Re: "Copyright Week" is actually Piracy Week.
You may, but judges and copyright lawyers do not.
Copyright's function/effect today is to provide a limited monopoly of use by the copyright holder.
That is copyright's effect. It is by no means copyrights purpose. Providing a limited monopoly to copyright holders has never been more than a means to achieve an end, and that end has always been to provide the general public with access to, and ultimately control over, works of authorship.
The full passage is necessary to provide context:
Except that you are emphasizing the parts of the passage that are incidental. Nobody (except OOTB) is arguing that copyright is not a statutory monopoly. Nobody is arguing that the method of copyright is to reward and encourage crreative work. Nobody is arguing that copyright is not "a balance of competing claims upon the public interest."
And absolutely none of this supports your claim that copyright's purpose is "to maximize the commercial exploitation of the work by the right holder."
But, if you're still doubtful, here are a few more quotes.
- House Report on the Copyright Act of 1909
- Mazer v. Stein
- Fox Film Corp. v. Doyal
- U.S. v. Paramount
- Sony Corp. v. Universal City Studios
Not a one of these quotes is from the 1700's, or even from the 1800's. They are all contemporary descriptions of the purpose of copyright law. And every single one of them disagrees with you.
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Re: Re: Re: Re: Re: Re: Re: Re: "Copyright Week" is actually Piracy Week.
One of the problems of long copyright terms is that works can rot away before they enter the public domain. Most works have a short commercial life, 10 years or less, at which point it would be a public benefit for them to enter the public domain. However long copyrights keep these works out of the public domain, which suits the publishers as there is less competition for new works. Doing so is of no benefit for an author, or the public.
It looks like the publisher are trying to eliminate the public domain by repeatedly getting copyright extended, and eliminating fair use by threatening expensive to defend legal action.Therefore the reality of copyright, as i was pointing out, is to benefit the publishers not the authors.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: "Copyright Week" is actually Piracy Week.
And I was actually replying to LAB's assertion that copyright's purpose is "to maximize the commercial exploitation of the work by the right holder."
If you're not viewing the discussion in a threaded format, that's easy to miss.
The point I was making, and one that still largely applies today, is that the people pushing copyright were and are dominantly the publishers, rather than the authors and artists.
This is indeed an excellent point. In fact, the original Statute of Anne was intended (by publishers) to be a statutory replacement of the "Stationer's Copyright." That copyright was granted to publishers only - authors had no say in the matter at all - and it was only granted to publishers who were members of the Company of Stationers.
That didn't fly in Parliament, so the Stationers brought in their wives and children in to Parliamentary sessions to tug at the heartstrings, and shifted emphasis to the needs of the "author" in order to get the law passed. It is also no coincidence that the Statute of Anne was passed right after the unification of Scotland and England, and the abolition of the Privy Council of Scotland, which was the source of Scottish publishing monopolies.
It's also likely that it was passed out of the Crown's hatred towards John Baker. Baker was a London bookseller who published dangerous satires by outspoken but anonymous authors, including Daniel Defoe; he was also a book pirate.
For anyone who wants a historical perspective on the whole thing, here is a fascinating history of the first copyright infringement case after the Statute of Anne, which was against Baker:
The Untold Story of the First Copyright Suit Under the Statute of Anne in 1710, by H. Tomas Gomez-Arostegui (PDF).
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Re: Re: Re: Re: Re: "Copyright Week" is actually Piracy Week.
There's also the problem that blue's reputation has become so toxic, due to their posting history, that most people don't even bother to give them the benefit of the doubt anymore, and automatically click 'Report', which while unfortunate in the few cases Blue's making a valid point, is entirely his/her fault.
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Re: Re: Re: Re: Re: "Copyright Week" is actually Piracy Week.
No, no, no. Let us assume for the moment that you view your work as a child. For the first 15-16 years of his or her life you can exert controls over what he or she is exposed to (good luck with that) in terms of what he or she can learn. After that, the kid grows up and leaves home. How then can you exert control over where he or she goes and what choices he or she makes thereafter?
In any case, creators only have the illusion of control. If your work ends up in the bargain bin, how much control can you exert over that? Its presence there denotes its unpopularity as they've had to drop the price to shift it. So what, if any, control can you exert? Can you really control where it is sold after someone has bought a copy, and decides to sell it on?
So no, LAB, you can't truly control dissemination, nor should you try to. It might interfere with people finding out about you and taking an interest in your work.
Its current purpose, as Karl correctly stated, hasn't changed, only the perception of its purpose has, having been twisted by maximalists into "$$$$$$!!! per copy sold! For the [children] creators."
The deal has always been to give the creator the opportunity to maximize the commercial exploitation for a limited time, then to turn it over to the public domain. Ever since the upward ratcheting began, they've been reneging on that deal. Meanwhile, if you want to make a living from your work, start to build a fan base for it, otherwise you'd be lucky to sell a single copy, even if the copyright term goes up to a thousand years.
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Re: "Copyright Week" is actually Piracy Week.
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Re: "Copyright Week" is actually Piracy Week.
And what is remarkable is that almost every single one of your verifiable statements is factually wrong, wholly and completely. Not just wrong, but the opposite of correct.
Also, I apologize in advance for the length of this reply. Hopefully I can get all of this out of the way, so I never have to reply to you again.
>>> Copyright is derived from the facts of existence; it is natural law and cannot be narrowly defined; it is self-evident like the US Constitution itself which is only valid UNDER common law; statute is at best tertiary.
As I've already explained to you, copyright is not based on common law. It is only statutory. To my knowledge, not one court, ever, has granted a copyright to an author, unless they were told to by statute. That's the complete opposite of common law.
And it is hardly "derived from the facts of existence" or "natural law." It did not exist anywhere in the world until the Statute of Anne was passed in 1710. It did not exist in the pre-U.S. colonies, even after that. And until our lifetimes, it was not assumed to be held by authors automatically - you had to register to get a copyright on your works.
It is a creature of the State, and has never existed otherwise.
Creators inherently have SOLE RIGHT TO COPY their work.
Again, wrong. It's not even true under the law: according to copyright law, the copyright holders - who are in most cases not creators - have the exclusive right to authorize copying. And it does not extend to all forms of copying, such as time-shifting or fair use.
And there is nothing "inherent" about it. If you tell me a story, do you "inherently" have the right to prevent me from telling it to others? No, of course not - and that's how knowledge has been spread for the majority of human history.
Creating is and has always been more difficult than copying.
Fisrt, nobody can create without copying at some level. Every artist - hell, every speaker - uses words, phrases, languages, or tools that they didn't come up with.
Second, it's absolutely not true, at least as far as copyright is concerned. It is much easier to create something than it is to exactly duplicate the works of others. Copying the guitar solo from "Eruption" takes years of practice and training, but bashing out a few chords on your guitar is trivial in comparison. Yet the kid who plays "Eruption" doesn't get a copyright on it, while the guy who just bangs out something on his guitar does.
Third, even on a theoretical level, you're incorrect. Like many people, you're confusing "novelty" with "creativity," and it's a false equivalence. There are entire genres of high art that disagree with you. From Marcel Duchamp, to Andy Warhol, to Jeff Koons, the art world has recognized that creating copies - in the right context - can result in better works than the merely novel.
The special provisions in law for copyright stem from the above 2 facts.
Objectively false. Copyright has absolutely nothing to do with the relative ease of copying vs. creativity, nor with any kind of inherent right of authors or publishers. It is granted solely to "promote the progress of... science," meaning "learning." It is only an incentive to create and dissemenate works to the public, nothing more. Its primary beneficiaries are supposed to be the general public, not authors.
I've already quoted the Supreme Court and Congress in the comment I linked to above. There are many more. I suggest that you read them and take them to heart.
Copyright specifies WHO can gain money from the works, AND that no one else is to gain money from them.
Absolutely false. Copyright does not specify that authors are the only people who can gain money from their works. That is utterly ridiculous; if they were, nobody would publish them. Copyright law does, and always has, recognized that other people can and should make money off of authors' works. It only says that authors should have the right to negotiate with those other people (and, of course, withold permission if those negotiations fail).
And sometimes not even that. Statutory royalties, for example, cannot be denied by musicians. Once a song is published, than the law says that anyone can and should use those songs, and make money off them, so long as they pay the statutory fees.
(For a limited time, but after in public domain, it's still unethical to grift on the work of others; ONLY the cost of reproduction should be charged.)
There is absolutely nothing in copyright law that even hints this. If a work is in the public domain, than anyone can print it, and they can print it for whatever price they want. They do not have to pay the original authors a dime - hell, they don't even have to provide credit. If you think that's "unethical," then you're against copyright. Because, in the end, copyright's purpose to promote exactly that kind of behavior. It's one of the primary was that the public benefits from works of authorship.
Copyright law is indeed exactly to prevent TWO types of THEFT (during the limited time): 1) by commercial scale copiers directly profiting 2) by the general public taking the work without rewarding creator.
First: under the law, it's not theft. That has been made explicit by the Supreme Court. It's not "theft" in the colloquial sense, either, because "theft" implies taking something from someone else. When you make an unauthorized copy, nothing is taken - only created.
Second: you're correct about 1), but you're absolutely wrong about 2). Non-commercial copying wasn't unlawful until very, very recently in copyright's history. And for the most part, lawmakers crafted the statutes specifically so that the general public has access to works for free. There are exemptions for public libraries, schools, church services, charities, and so forth. See e.g. 17 U.S.C. 108 and 17 U.S.C. 110.
In fact, throughout most of its history, copyright infringement laws dealt only with for-profit copying by businesses. I personally think it should return to this.
There are NO rights whatsoever granted to or held by copiers. No one's "right to copy" is at any time removed or diminished because it never exists prior to the creation of a work.
This is absolutely ridiculous. Of course people have a "right to copy." If I own a table, do I have a right to create a copy of that table, using my own materials and labor, and sell it? Of course I do - that's part of my property rights. If I hear a joke in a bar, do I have a right to tell that joke to someone else in a different bar? Of course I do - that's part of my free speech rights.
In fact, for things that are not under copyright (or other IP laws), I have every right to copy. I can retell jokes, I can fix food (and sell it) using someone else's recipe, I can print my own copies of the phone book. And I have every right to do so.
Under natural law, I have every "right to copy." But without the purely statutory copyright laws, you have absolutely no right to stop me.
Morally and practically, copyright is valid because exists independently of and without conflicting anyone else's rights. -- Pirates obviously want to deny the moral basis of "I made it, therefore I own it"
Obviously, copyright conflicts with property rights and free speech rights (especially with derivative works).
And, for the record, copyright law says "I made it, but I don't own it, because it's too much like something someone else made."
You don't have to be a pirate to see that there is no moral basis for that.
Machines doing the labor of copying doesn't confer any new right to do so.
This isn't true, as under the law, certain automated copies (e.g. ephemeral copies made by a web browser) are not infringing. So, at least in some sense, you're wrong about that.
I'm guessing that you're talking about secondary liability for automated copies. That has nothing to do with "confering any new right." It has to do with awareness and intent, which have to be present for secondary liability of any kind.
Or perhaps you're talking about the ease of copying. That just goes to the fact that copying is so easy, and is done by so many people in the course of the day, that copyright is effectively unenforcable at a certain level. But, again, this has nothing to do with "conferring any new rights." It may call into question the effectiveness of enforcement, or whether enforcement would have such a negative effect on society that certain forms of infringement should be legalized, or the wisdom of criminalizing behavior that the majority of the populace engages in (similar to the wisdom of criminalizing marijuana). But those are separate questions.
Copyright has a worthwhile societal purpose to encourage the creation of various works, even if only for trivial entertainment.
This is the one thing you've said that's true. In fact, that's the only reason copyright exists at all. (At least, if you include "distribution" with "creation.")
But you can't just say that "copyright has a worthwhile societal purpose" and leave it at that. You must show that copyright does, in reality, achieve this worthwhile societal purpose. If it doesn't, then the law should be changed or (in extreme cases) abolished.
And the evidence suggests that copyright, as it currently stands, does not achieve this purpose. See e.g. the story on how many works fall out of print and are no longer publicly available until they go into the public domain (or are lost forever, if they're not preserved). Or the comparison of databases in Europe (which has copyright-like database rights) and the U.S. (which does not).
Many like to jeer that copyright exists only until a creation is shared with others -- after that you've no claim to it!
This is the "right of first publication." Unlike copyright, it usually is considered a natural right of some sort. Nobody here is arguing otherwise.
No one will say that laborers don't have right to the fruits of their labor (except so far as they advocate slavery, and some DO). Copyright is the SAME common law
This is called the "sweat of the brow" argument. It is not why copyright is granted to authors, and the Supreme Court has solidly rejected it.
In any case, you don't need copyright to enjoy the rights to your labor. Most laborers, in fact, do not enjoy a monopoly on the fruits of their labor. Instead, they are paid for the labor itself.
Construction workers don't get royalties on the buildings they help build. Factory workers don't get royalties on the cars that they help assemble. Waiters and waitresses do not get a cut of every plate of food sold.
If you were to treat authors the same as other laborers, then all creative work would be work for hire. In case you don't know, if a creation is a work for hire, then the creator does not - and never did - hold the copyright to the work. To be frank, that's how most creative workers actually get paid (film workers, graphic designers, classical music performers, etc).
And, again, nobody on this website has argued against artists' rights to be paid for their labor. That is very, very different than saying they have a right to a post-publication monopoly on everyone else's labor.
Even indirect income from in any way providing "for free" the protected work of others is clearly illegal, undeserved, immoral, and unethical.
This is clearly BS. This means that anyone who works for a public library is doing something "clearly illegal, undeserved, immoral, and unethical."
It is not illegal unless it is secondary liability under the law. And it is hard to argue that it is "undeserved, immoral, and unethical," since nearly every religion has said that creating abundance from scarcity is a moral good. (See the parable of the loaves and fishes in the Bible.) If anyone makes money from it, then they are making money from doing a social good. In fact, they are making money by distributing works to the public, which is exactly what copyright is supposed to promote.
Putting entire digital movie / music files online for anyone to download is NOT sharing, not fair use, nor fair to its creators; it does remove some degree of potential profit and some degree of actual profit.
It is sharing, even if unauthorized or unlawful. But it is sharing nonetheless, whether you like it or not.
You're right that it is almost certainly not fair use, assuming it is unauthorized. But I don't think anyone here argued that it was.
Whether it is "fair to its creators" is debatable, but immaterial as far as copyright law is concerned. Copyright law exists to encourage the creation and distribution of works to the general public - and for no other reason.
There is no such thing as "potential profit." There may, or may not, be any degree of actual profit, depending upon the nature of the work being shared. Relatively unknown works, for instance, almost certainly benefit from unauthorized sharing; works by established authors that are already popular, probably do not.
But, again, this is immaterial, unless that decline in profits means that fewer works are being created and distributed. There is no evidence that this is true, and in fact the opposite is happening.
Copying rights are granted by the public for the public good (or was until unilaterally changed by moneyed interests) and we all have a general duty to respect the special provisions made for creators of non-physical works.
If copyright was truly granted by the public, for the public good, then you would be right. Unfortunately, neither is true any more. Copyright laws are mostly passed in secret (or through the back door of secret trade agreements), and nowadays nobody believes it's actually for the public good. Most people (including some in Congress) don't even know it should be for the public good.
Since that's the case, the public does not have any more duty to obey copyright laws, than they do to obey any other bad laws that act against their interests.
In the absence of physical media, there's no clear right to access content, only perhaps an authorized temporary permission.
According to the courts (the MyVidster case), accessing content is not an infringement of copyright. You have to make a fixed copy of it; if you (say) watch an infringing stream of a movie, then you are not infringing on copyright at all. You may lack the right for some other reason (say by providing fake login info), but it has nothing to do with copyright.
It's a good ruling, because thinking otherwise is kind of ridiculous. Do you have a clear right to listen to the radio? Of course you do. Do you lose that right if the radio station plays an unauthorized bootleg? No, you don't, at least to my knowledge. Should you, as the listener, lose that right? It seems incredibly silly to think so.
digital data is even less "owned" by the purchaser than with physical media, not more.
If you legitimately bought a digital file, then it should be your property to do with as you please. That is a pretty clear private property right. Of course, caveat emptor: if the mega-corporation that you bought it from suddenly decides that what you "bought" is no longer yours, then too bad for you. Should've read the fine print when they sold you that lemon.
Defending this seems to be a pretty weird stance for someone who claims to hate "The Rich," but whatever.
When independently rendered, fashion "ideas", "art" in general, "look and feel", jokes, bits of wit, and musical "riffs" are not copyright-able because not significant effort.
First, this is outright insulting to fashion designers, artists, comedians, and musicians. I can tell you first-hand that they require significant effort.
Second, copyright has nothing whatsoever to do with how much effort something takes, "significant" or otherwise. A half-assed three-chord song is just as subject to copyright as a symphony.
Third, a couple of the things you mentioned are covered by copyright! Talk about disproving your own point.
No one else has the right to even MAKE such attempt, nor to GRIFT off the content value either directly or indirectly (as a draw for eyes to advertisements).
Wrong on both counts, as I explained above.
Nothing above is invalidated or weakened by results being imperfect,
Copyright is not just "imperfect." It is acting against its very purpose at this point. At the very least, this weakens it; at most, it invalidates it altogether.
nor by attempts to indefinitely extend time and scope of copyright: the latter are driven by greed and should of course be resisted, but by more general means.
If you truly believe that "I made it, therefore I own it," then why not have copyright last an infinite time? After all, property rights in (say) a car don't expire. The fact that you do believe copyright shouldn't be infinite, shows that you don't even believe your own argument. At least you do, consistently, argue for the expansion of the scope of copyright. (You already believe its scope is greater than it actually is under the law.)
And if we did resist it by "more general means," then you'd simply call us pirates, and ignore everything we say. Because we are, and you do.
But don't at same time empower mega-corporations to steal creative works from the poor.
Copyright law has nothing to do with this. For example, until the 1970's you could hold any kind of copyright on your works at all unless you registered the work with the Library of Congress. How many poor people did that, do you think?
Make a means test for copyright, prohibit it entirely to corporations
I've said this before, but if you want to prohibit it entirely to corporations, then you have absolutely no right to bitch about a $200 million movie. Or whatever other super-expensive artwork you claim can't be made without copyright. Who, exactly, is going to make those movies, if not for corporations or "the rich?"
Also, this may be news to you, but by law, movie work is work for hire. None of the people who work on those films ever held the copyright to any part of the film. By law, the copyright on a movie is always held by the studio, usually a corporation.
This ought to show you something. For all the hubbub about copyright protecting poor artists from corporations, I've never seen this to be the case. On the contrary, copyright is what enables corporations to exploit artists.
Copyrights are monopolies, and those monopolies are transferable. That means that they are being hoarded by an increasingly small number of trans-national corporations. In order to get access to their content, distributors (radio stations, record stores, booksellers, theaters, etc.) have to deal with them.
This means that in order to deal with those distributors, artists - poor and otherwise - must sign deals with those same trans-national corporations. And since media companies often act as cartels, the artists have almost no bargaining power whatsoever. They either assign the copyrights to the corporations for pennies on the dollar, or they can't get distributed.
So as they gain more of a monoply over distribution, these corporations gain more copyrights. And as they gain more copyrights, they gain more and more of a monopoly over those distribution. It's a vicious cycle, and in the end, all the money from copyrighted works is sucked from the public, into the hands of major media companies, and it never trickles down to the artists.
Make no mistake about it. If you are supporting copyright, then you are supporting the exploitation of artists.
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Re: Re: "Copyright Week" is actually Piracy Week.
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However, this is an awesome piece, Karl!
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It is a legal exception, as you say, but it is excepting the removal of legitimate rights in the first place.
So, logically, fair use is not a "right" in and of itself, but allows you to make use of rights that copyright is suppressing.
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Also, keep in mind that authorization is also an affirmative defense against claims of infringement.
Nobody, however, has ever argued that reprinting authorized copies of works was not a right. Imagine what would happen if the government tried to limit this right - it would be clearly unconstitutional (under the First Amendment, and likely others).
Something may be an affirmative defense under the law, yet still be a right.
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Fair Use in different Media
Details:
1) Copyright Fair Use Across the Media. Fine art, publishing, motion pictures, television, theater, music and emerging technologies are all governed by the same legal precepts, but how copyright fair use is applied in practice in each of them can be very different. The norms and concerns are shaped in part by different financing and insurance requirements, as well as different levels of risk tolerance. After a review of the basic concepts, the panelists will compare and contrast the application of fair use across the media and comment on the role of errors and omissions insurance. We expect vigorous audience participation in this vibrant discussion.
http://www.nysba.org/Sections/Entertainment_Arts_Sports/Entertainment_Arts___Sports_Law_S ection.html
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Many artists don't understand Fair Use/Transformative works
I say this after what happened yesterday over on the art site deviantArt.
The site has always had a problem with new users recoloring/editing/tracing over copyrighted images, in other words, other artists' works, and then uploading it and claiming the art as their own.
I didn't pay much attention to all this until yesterday, where someone posted a journal entry linking to another user ranting about how the site's admins are refusing to enforce their own copyright policy correctly, and allowing people who trace others work to do so.
Intrigued, I took a look at the tumblr link in the rant, and saw, well, see for yourself: http://zilleniose.tumblr.com/post/73465931014/warning-to-all-deviantart-users
While the alleged 'art thief' did trace over part of the original image, it had clearly been altered enough to qualify as a transformative work under Fair Use.
After reading all that I basically wrote up a journal entry stating that, in this particular case, the "art thief"'s work is transformative enough to qualify under Fair Use, despite the fact that some of it was clearly from/identical to another piece of art (now that I think about it, the only part of the picture that's really traced from the original is the pose).
Part of the problem is dA's Copyright policy leans so hard on "with permission" that it's not even funny, which gives peopel the foolish idea that you need permission for everything, so it's not surprising that a lot of artists on dA are reacting this way right now (and are still foaming at the mouth over the fact that the admin refused to take down the accused's work).
I think it really shows what problems are caused by people insisting that you need "permission" for everything these days, and why Fair Use is such a vital part of Copyright law, and the Internet as a whole.
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Re: Many artists don't understand Fair Use/Transformative works
they understand it far better than Masnick and the usual TD crowd. Clearly from the statements made here that is the case.
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Troll argument.
Dismissed.
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Re: Many artists don't understand Fair Use/Transformative works
Did you really mean to imply that musicians are not actual artists?
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I'm hoping he meant "visual artists," and simply couldn't find the right term.
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Plus I was getting rather annoyed by some of the comments I was reading over at dA, so I was feeling a little sarcastic when I wrote that post.
Speaking of dA, I actually managed to talk to zilleniose herself and one of her friends, and she admitted that yes, the other art might be considered Fair Use, but because the art was definitely [partially] traced from hers that it qualified as 'art theft'. I politely responded that Fair Use can be rather subjective, so the alleged infringing work could potentially go either way, and let it go at that.
As for her friend, she her view is that it's fine to claim Fair Use for tracing MLP screenshots because the creator's okay with it, and only Hasbro will come after you, but tracing other fan-art should stay off-limits unless you have the consent of the creator.
And of course, the comment section where all this took place is still bickering about the whole thing.
Ugh...I should've just stayed out of it. Would've saved me a lot of wasted time.
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why say things that are simply not true masnick?
because lots of people do something does not make it legal or "the rule".
Copyright law is the RULE (or law) fair use is a legal exception.
for Fair use is the exception, COPYRIGHT is the RULE...
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Free speech of any kind is our right. One exception is yelling "Fire!" in a crowded theater, which just also happens to be a LAW.
See how that works? We have rights, which our limited by laws/rules.
In the scenario you portray, all speech is forbidden, the exception being things other than yelling, "Fire!" As if we needed permission to speak.
We don't.
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You obviously believe that others in a civil society are just objects onto which you get use our rights- stampede or otherwise.
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A problem in current society is that the law is being twisted into a form where that which is not explicitly prohibited is legal. A huge problem with this approach is that it always leaves loop holes which allow people to escape from consequences for deliberate actions that led to other people being injured.
I am of the opinion that where a reasonable person should see that a likely direct result of their action is injury to other people, they should be held liable for that injury.
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yelling fire falsely is against the law. If there actually is a fire not yelling "fire" (sneaking out and letting people burn to death) is the crime.
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Fair use was around long before it was codified into law:
- Campbell v. Acuff-Rose (citations omitted)
Fair use has been around as long as copyright, but as a common-law doctrine, rather than a statutory doctrine (as copyright itself is). It was developed as an equitable solution, because doing otherwise would stifle the public welfare, act against copyright's purpose, and - significantly - infringe upon free speech rights.
So, yes, fair use was indeed developed to protect "the rights of the public to speak, to make use of content, to comment, to criticize and to express themselves." Legally, it is a common-law exception to the copyright statutes, but it certainly does arise out of the inalienable rights of the public.
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Chicken or the egg?
Fair Use is, and will always be, an EXCEPTION to the copyright, an affirmative defense style concept. Yes, I know I am infringing copyright, but I claim fair use.
Over time, it has evolved through legislation and court cases to by a system of JUDGEMENTS, not absolutes. Fair use is not a given, it's something that is judged on it's merits. Some cases are clear and obvious and don't end up going to court, others are less clear and lead to legal action.
Fair use is an exception, as copyright is the rule. Everything you produce (all the posts here) are copyright the moment you make them. The exception to your copyright would be someone's fair use of your copyright material.
Attempting to re-write things to match your view of the world is transformative, I guess, but last time I looked you aren't someone elected to change the law.
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This is indeed true but is often confused and twisted by both sides of the copyright argument.
"to make use of content"
Yes the public can use, but for what purpose. In the United States, what is often ignored is the paragraph before the four factors of statute 107, which states:
... the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
Is the use a criticism or comment? Does it dissect the work? Is it commenting or criticizing the work itself? Does the use break it down, analyze it? Is it news reporting? Is the use academic?
These are some of the questions that must be addressed even before the four factors are weighed to determine fair use.
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Google fell afoul of this when German publishers demanded payments for linking with snippets to their websites/online papers, etc. That's an example of fair use, right there, because it's reporting news, but not using the entire piece to do so. Google caved, I'm sad to say.
It's generally considered good netiquette to link with snippets rather than simply copy the entire item. TD is an exception as Mike allows wholesale copying of the articles here because he dislikes what he calls "the permission culture."
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That's not really true. The uses listed are merely illustrative examples ("purposes such as criticism..."). Even if the use is enumerated in those examples, the four-factor analysis must still be used; and if the use falls outside of those examples, then it is still fair use if it passes the four-factor test.
- Harper & Row v. Nation Enterprises
Is the use a criticism or comment? Does it dissect the work? Is it commenting or criticizing the work itself? Does the use break it down, analyze it? Is it news reporting? Is the use academic?
Those questions deal only with one factor in the fair use analysis (the first factor). Even if does not do any of those things, it may still be fair use. For example, "time-shifting" a TV program does not do any of that, but the Sony court found it was fair use.
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I believe one of the most important parts of statutory interpretation is acknowledging what is present. You will note that these illustrations are not meant to be exhaustive, but they do have purpose. They are to show the nature of uses generally considered fair use. They are the same in many respects and a common theme can be observed.
"Even if does not do any of those things, it may still be fair use"
I am speaking from a practical standpoint. As one often would be claiming fair use in a litigious context, I would highly suggest, right from the beginning, contemplating whether the use is or is similar to the uses mentioned in the first paragraph of the statute. They are there for guidance.
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True, but if you are claiming fair use in a litigious context, then it is better to get someone who is very familiar with the case law on fair use. It is from case law, not the statutes, that fair use is determined.
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I am a curmudgeon
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