MPAA Pretends To Be A Regular Defender Of Fair Use; The Evidence Suggests Otherwise

from the a-more-detailed-history dept

We recently wrote about a case in which the MPAA signed onto an amicus brief arguing in favor of fair use, noting that it wasn't something you saw everyday (even if the MPAA just signed onto a brief written by some Stanford fair use experts, rather than writing its own brief). We saw lots of folks in the copyright world express surprise at the MPAA speaking out in favor of fair use, given the their general distaste for fair use. Because this is the MPAA we're talking about, it couldn't leave well enough alone, and decided to respond, with a silly blog post pretending that the MPAA has long been a champion of fair use, and that there's nothing out of the ordinary in it defending fair use. The blog post, written by lawyer Ben Sheffner is hilariously entitled MPAA and Fair Use: A Quick History. And, boy, it is quick. So quick it leaves out quite a bit of the MPAA's "history" on fair use, and presents a rather inaccurate, misleading and one-sided portrayal of the MPAA's decades-long war against fair use. And, contrary to Sheffner's claims, the MPAA has not just argued that "piracy" is not fair use, but plenty of other things that most of us -- and the courts -- have, thankfully, determined were absolutely fair use.

So, in the interest of accuracy (which we're sure the MPAA really intended as well), we thought we'd perhaps supplement the MPAA's history with some of the stuff Sheffner apparently "missed" in his all-too-quick "history" lesson. In researching this, I reached out to more than half a dozen copyright lawyers. Amazingly, each one sent back different examples of the MPAA fighting hard against fair use (there was plenty of overlap, but each one had a bunch of examples that no one else had) suggesting just how widespread the MPAA's fight against fair use tends to run. Frankly, the list got so long that I'm only providing the highlights here. A complete recapping of the MPAA's war on fair use would simply take way too long.

Basically, the short summary of the MPAA's position might be summarized as "when people sue us, we believe strongly in fair use. Otherwise... not so much." Or, even shorter: fair use for me, but not for thee. Sheffner lists out five cases, all of which involved an MPAA member as a defendant. While he claims that it's not at all unusual for the MPAA to argue fair use, and that there's nothing surprising about its amicus filing, it is a rare case where the MPAA files an amicus brief in support of fair use. Normally, its amicus briefs related to fair use go very much in the other direction. Or, it's the aggressor and the plaintiff arguing against fair use.

Let's start with the big one: Sony vs. Universal Studios, better known as the Betamax case, in which the movie studios tried to kill the VCR. The case was brought by a bunch of MPAA members, who argued that time shifting was copyright infringement and the VCR should be illegal for facilitating time shifting. The MPAA also filed an amicus brief in that case, in which it states:

The Motion Picture Association has never acquiesced in the view that home videocopying is a fair use. An argument to the contrary in one of the amicus briefs is mistaken.

Note that even the choice of language is incredible, suggesting that the MPAA itself must approve something as fair use before it is. It later argues that there can be no fair use in time shifting because nothing creative has happened:

The home videocopyist makes no independent or creative effort; he contributes nothing to advance science or culture. He merely chisels -- by making a copy for nothing. That is not fair use.

I guess that this is the "anti-piracy" situation the MPAA meant in its blog post last week, huh? By the way, as a point of reference, four years after the MPAA's Jack Valenti declared the VCR "the Boston Strangler" to the movie industry, the MPAA studios made more income from VCR movies than they did from the box office. How the MPAA still has any credibility on these sorts of things is beyond me.

Speaking of the MPAA's Jack Valenti, back in 2003, he gave an interview to a publication at Harvard where he, quite incredibly, insisted that fair use did not exist in copyright law.

What is fair use? Fair use is not a law. There's nothing in law.

Yes, Jack Valenti apparently was denying the existence of 17 USC 107. Because the MPAA is such a regular "defender" of fair use, right?

Moving on. In 2006, the MPAA argued against fair use in an amicus brief filed in Perfect 10's case against Google for showing thumbnail images in its image search product. Yes, the MPAA didn't want an image search engine to be able to show images. Great guys, those MPAA lawyers. First, it argued that even if you don't host the content, but merely embed/link to an original, you should be held liable. Second, it argued that Google could violate the "distribution" right, even if no works were actually disseminated. And then, finally, they argued that showing thumbnails for the purpose of search was not transformative From that brief:

No matter how socially beneficial Google's search engine may be in general, the activity at issue in this case -- making unauthorized copies solely to direct users to other unauthorized copies -- hardly deserves the label "transformative."

That's the good old MPAA we know. Even if it's socially beneficial, it must be against the law because it might hurt our business model. Elsewhere, it attacked the rest of the four factor analysis, even arguing, ridiculously, that thumbnail images hurt "the market" for the original images.

Okay, how about the lawsuit against DVR pioneer ReplayTV? There, the various studios who make up the MPAA sued about another VCR-like technology and sought to chip away at fair use, yet again, arguing that a DVR is entirely different from a VCR, and fair use shouldn't apply.

Copying a copyrighted program or film with a digital video recorder is a violation of the exclusive rights of the copyright owner under Section 106 of the Copyright Act. Such copying is entirely distinguishable from the type of copying which, in narrow and different circumstances, might be defended as a fair use.

Yup. DVR: not fair use, according to "long term defenders of fair use," the MPAA. Throw out your Tivos.

Next up on the list: backing up your DVDs. When RealNetworks released RealDVD, a complex and convoluted system to let people back up their DVDs, while still keeping DRM included, the MPAA studios still sued and argued that Real's reliance on fair use was inapplicable:

Real cannot rely on the alleged "fair use" defense that consumers can make copies of DVDs to avoid liability for trafficking in a circumvention product.... As the Second Circuit held, the plain language of the "DMCA targets the circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools), but does not concern itself with the use of those materials after circumvention has occurred.".... the "DMCA does not have a 'fair use' exception."

Not done yet. How about the famous Hathitrust case involving a bunch of university libraries, scanning their collections to build a giant index for the sake of academic research. Most people would think this is an obvious case of fair use. But not the MPAA. From its amicus brief, we learn that this all just a vast piracy conspiracy, so fair use cannot apply.

The district court’s very brief discussion of the third factor simply observes that because the defendant’s purpose was making and distributing copies of whole works, copying of entire works was necessary. Defendants who copy whole works will almost always be able to argue that doing so was necessary to their purpose. Surely in a case involving the most massive, systematic copying of copyrighted works in history, the district court should have addressed whether the amount and substantiality of the copying was really justified.

Next up? What about individual books? That close cousin of movies? Well, fair use may be important in movies, according to the MPAA, but don't expect it to stand up for fair use in books. In fact, it will come out vehemently against fair use in books. For example, it filed an amicus brief in the Salinger v. Colting case, in which JD Salinger claimed that Fredrik Colting had violated his copyright by writing an unauthorized sequel to The Catcher in the Rye. For many of us, this was an open and shut fair use case. Colting had not copied the expression of Salinger at all, but rather just the idea. But, to hear the MPAA tell it, fair use has no purpose in such story telling. In effect, they argue that all fan fiction must be infringing

In evaluating the fair-use defense, the Court should reject attempts to overly expand, or give disproportionate weight to, the fair-use factor one concept of “transformative” use. Contrary to the assertions of defendants and their amici, a defendant does not meet his burden to show that an unauthorized sequel is a fair use merely by showing that it has crossed a threshold of “‘add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning, or message,’”

Again: fair use for me, and not for thee.

It's not just in the courts that it's fighting these things either. There were a couple of court cases involving services that edited movies (generally taking out the more "R" rated stuff to make them kid friendly), and the MPAA, again argued strongly that these weren't fair use. When Congress finally jumped in and passed a law that made such family-friendly editing legal, the MPAA's Jack Valenti argued to Congress that this sort of interpretation of fair use "could jeopardize the future of copyright law and the financial well-being of one of America's most valued industries." Apparently fair use was going to destroy all of copyright law and the financial well-being of Valenti's own industry. That hasn't actually happened (you'll note that's a frequent result when it comes to MPAA predictions).

Other areas attacked by the MPAA? How about during the triennial DMCA review for the anti-circumvention clauses? One of the exemption requests last time around was to make it clear that it was legal to make backup digital copies of your DVDs. The MPAA actually argued that such an obvious fair use should not be considered fair use, because it messed with their business model.

How about over in the UK, where a few years back, there was the Hargreaves review -- a comprehensive look at potential copyright reform. A big part of that was looking at whether or not the UK should add American style fair use to their laws. In a filing for that, the MPAA argued against adding American-style fair use, saying that it would lead to too much litigation. It also mocked the idea that companies like Google rely on fair use. Finally, it pulls out one of the maximalists' favorite bullshit lines of the day: that fair use might actually be incompatible with the Berne Convention:

The compatibility of the fair use doctrine with the three-step test has recently been the subject of a good deal of scholarly commentary and controversy; but no definitive determination on that subject has ever been made. At the time the U.S. first became subject to the three-step test, when it adhered to the Berne Convention in 1989, there seemed to be no serious consideration of whether Section 107 was incompatible with Article 9 (2) of Berne. Since the mid-1990s, the WTO dispute settlement process has provided a potential forum for claims that fair use is to broad or too ill-defined an exception to satisfy the three-step test. But no such claims have ever been brought, even though there are doubtless a number of WTO members whose nationals could claim to have been injured through fair use decisions by U.S. courts that unauthorized uses of their works were “fair” and therefore sheltered by Section 107. It is worth noting that the one provision of U.S. copyright law that has been found to exceed the bounds of the three-step test, by decision of a WTO dispute settlement panel, is not Section 107, but rather Section 110 (5), a specific exception involving the public performance of music in bars and restaurants.

Of course, this argument was ably debunked by William Patry years ago, and yet the MPAA sticks to the FUD position of hinting that any other country that introduces fair use, might be violating Berne.

Of course, down in Australia, the MPAA filed a similar document late last year, concerning that country's exploration of implementing fair use. From the MPAA's filing:

Since it is inconceivable that, as part of any new system of copyright exceptions in Australia, its courts would be directed to slavishly follow U.S. precedent, it is inescapable that there would be considerable uncertainty about the resolution of claims based on the new system in Australian courts. This is likely to create a deleterious level of unpredictability for copyright owners, copyright users, and the public. Whatever social benefits might fairly be attributed to the fair use doctrine under U.S. law would be unlikely to survive the passage across the Pacific to Australia.

Related to this, we've heard from multiple sources that when the USTR actually decided to put a recognition of the right for countries to include the rights of the public like fair use in the TPP, the most vigorous protests came from... the MPAA, supposed defenders of fair use. Of course, since the USTR keeps all of that stuff secret, we'll have to note that claim is just well-sourced speculation.

In the end, there are many more situations in which the MPAA has found itself arguing against fair use. The idea that they're champions of fair use is not actually supported by history. Yes, there are a few odd cases where they will defend fair use -- when their own studios have been sued. But it's difficult to find examples of the MPAA supporting fair use for anyone else. Instead, they certainly seem to like attacking fair use at every opportunity if it might help anyone else.

Filed Under: betamax, copyright, fair use, history
Companies: mpaa

TV Networks File Legal Claims Saying Skipping Commercials Is Copyright Infringement

from the wow dept

Okay, we had expected the TV networks to possibly take legal action against DISH Networks for its new Auto Hopper technology, which allows DISH subscribers who use the Hopper feature (which records all prime time shows from the four major networks) to autoskip commercials, if they watch shows in the days after they originally air. It wasn't a surprise that the TV networks didn't like this at all, but could they really make a legal argument that skipping commercials was against the law? We've all heard the story of former Turner Broadcasting exec Jamie Kellner claiming that not watching commercials was "theft," but do the networks actually think there's a legal basis for such claims?

It appears they do. Though, the legal arguments are insane.

As you may have heard by now, Fox, CBS and NBC Universal have all sued DISH in California. At about the same time, DISH itself filed for declaratory judgment in New York against those three, and ABC, who hasn't yet filed suit, but perhaps will shortly. I would imagine that all of the cases will be consolidated in one of the courts.

What's scary, however, is that the TV networks appear to be using this lawsuit to claim that skipping commercials is copyright infringement. I haven't yet seen the NBC filing, but the Fox and CBS filings both make this same basic argument. Update: NBC filing is added below, and is nearly identical to the CBS filing, down to the very same lawyers. Fox first argues that merely recording the entire prime time lineup is making "bootleg" copies of the videos. That's a rather stunning claim, and a direct challenge to the Supreme Court's ruling in the Betamax case, which made it clear that time-shifting is legal. The networks are claiming that this is not the same thing, because the "copies" aren't being made by the user, but by DISH itself for use by the user. Beyond being a meaningless distinction, it's also not true. As the Cablevision case concerning a "remote DVR" offered by the service provider showed, if the actions are at the request of the consumer, then it's the consumer making the call. With the DISH offering, the subscriber is still the one pushing the button and asking the DVR to record the shows. Is it really that different that it takes one button rather than punching in a few shows? That would be extraordinary -- but these filings are full of such extraordinary claims.

Where the filings go really off the wall is in basically saying that skipping commercials is infringement. They do this in the sections on "inducement," wherein they suggest that, even if DISH doesn't directly infringe, it is is inducing infringement by offering the auto commercial skip feature to users. From the CBS filing:

Users of the Hopper's PrimeTime AnyTime feature who record Plaintiff's prime-time shows and use the Hopper's Auto Hop feature to automatically skip commercials otherwise contained in those recordings infringe Plaintiffs' exclusive reproduction rights under section 106 of the Copyright Act,

But this makes no sense. Recording the show for later viewing is already deemed legal. So the only difference here is the intent of the user to watch later to skip commercials. Thus, CBS seems to be saying that merely wanting to avoid commercials is, itself, direct copyright infringement. And, given that Auto Hop doesn't work until the day after the shows air, does that mean that it's legal to record the shows if you intend to watch them the same day... but the second your intention is to watch them later, it's copyright infringement? That makes no sense and has absolutely no basis in the law. And, uh, what happens if you record it with the intent to watch the next day and skip commercials... but then watch it the same day with the commercials? The allegation above says merely recording the shows with intent to skip commercials is infringement, even if you don't actually skip the commercials! That makes no sense.

Fox's filing makes similar claims, insisting that DISH is inducing infringement because it "took active steps to encourage its subscribers to use Primetime Anytime to infringe FOX's copyrights." But that's flat out malarkey. It's legal for users to time shift shows. That's established. Yet, these filings seem to want to totally ignore that, and then assume that a user watching a DVR'd s how is automatically infringing on copyright because they might skip commercials.

The argument makes absolutely no sense at all. Effectively, the networks are trying to claim inducement to infringe... but do not (and, indeed, can not) show what or who is actually infringing. Time shifting is legal. Not watching commercials is legal. So, er, where's the copyright infringement, unless you completely throw out the Betamax ruling?

The filings also go down the path of explaining how this disrupts their business model. They honestly seem to be arguing for what some people have amusingly referred to as "felony interference with a business model." They list out all the different ways they get companies and users to pay multiple times for the same content, and use that to suggest this must be illegal, even though DISH has a retransmission license and all the individual parts are legal. I honestly don't understand this argument -- they're just claiming that because they don't like how end users engage with otherwise legal content, it must be illegal. Fox even uses this to claim that DISH's offering is not "enhancing consumer choice." Apparently, in the minds of TV network lawyers, what counts as "consumer choice" is limited to what the TV networks want to count as consumer choice... and any other choices are no choices at all. Or something.

There are a few slight differences in the lawsuits. For example, Fox brings up the fact that DISH also offers the Slingbox to allow users to not just time-shift but also place shift, though fails to explain why that's an issue at all. Fox also includes a breach of contract claim, which also may be difficult to support if all of the other actions prove to be legal.

DISH's declaratory filing gives you a pretty clear sense of that company's argument, pointing out that this is a nice feature that consumers want, that this kind of technology is already widely in use, and that it's not clear how any of this is infringement.

Auto Hop is a more efficient way of achieving what consumers already do with standard DVRs. A 30-second skip feature is already standard on many DVR remote controls. It permits viewers to automatically skip ahead in a recording, at the touch of a button, completely bypassing a typical 30-second television commercial. The remote controls that come with DVRs supplied by Comcast, an NBC affiliate, can be programmed to include this 30-second skip feature. DISH has provided a 30-second skip feature for years. By pressing the 30-second skip button multiple times, a viewer can elect to bypass the full complement of commercials between show segments. Now, DISH allows the customer to opt to use an Auto Hop feature that is just an extension of this 30-second skip function. It avoids the common frustration that occurs when viewers, using the 30-second skip or plain fast-forwarding, overshoot the commercials and fastforward into the television programming content that they really want to watch.

DISH also points out that skipping commercials is not illegal:

DISH's Auto Hop feature promotes consumer autonomy. Viewers have skipped commercials for decades. Viewers commonly use the commercial break as a time to get up and momentarily leave the room. Ever since the advent of the remote control, viewers have changed channels or muted the sound during commercial breaks. And, since the advent of the VCR and DVR, viewers playing back a show have fast-forwarded through commercials. DISH is simply making it easier for viewers to refuse to be a captive audience and to exercise the well-accepted choice to skip a commercial.

I can't see how the networks' argument can stand very much legal scrutiny at all -- but stranger things have happened when copyright cases hit the court. Still, the arguments here are so bizarre, and so unsupportable, you have to believe a judge will reject them quickly.

Filed Under: auto hopper, betamax, commercials, dvr, jamie kellner, television
Companies: cbs, dish networks, fox, nbc universal

Is Downloading And Converting A YouTube Video To An MP3 Infringement?

from the interesting-legal-questions dept

There are a variety of different tools out there that let you "record" a YouTube video and turn it into an MP3, just as there are a variety of tools out there for converting Pandora streams to MP3s or converting internet radio to MP3s. Technically it's no different than "recording" something you hear off the radio, which is generally considered legal under the Audio Home Recording Act (which had plenty of bad things in it, but also included protections for people recording at home for personal use).

We may get a test of whether or not that applies to the online world, with the news that former Gnutella P2P client MP3Rocket has changed strategies and ditched its P2P offering to switch to an app that simply records YouTube videos and turns them into MP3s. The company seems to be relying on the Supreme Court's Betamax ruling, by claiming that since all it's really doing is "time shifting" the ability to listen to music streamed via YouTube, it's no different than the ruling that said it was okay to record television shows via video cassettes.

Of course, RIAA supporters and the like will quickly counter by pointing to the various lawsuits over whether or not XM's recording device was legal. Most of those lawsuits ended in settlements, so I don't think there's as strong a precedent that says that turning digital streams is infringement. However, you'd have to imagine that there's going to be one hell of a lawsuit either way.

The reality is that this is yet another case of the law not being able to keep up with technology. There simply is no intellectually honest rationale that says recording songs off the radio is legal, but recording songs off your computer is illegal. It's a weak attempt by an industry that doesn't want to deal with changing technology to put in place laws that prevent what the technology allows. Those never work.

It certainly would be nice to see the Supreme Court note that something like this really is no different than the Betamax ruling, but given the Supreme Court's various bad copyright rulings over the last few years, I have little faith that it will do so. Instead, it would likely just use a case like this to chip further away at the Betamax ruling, just as the Grokster decision did.

Filed Under: betamax, downloading, mp3s, recording, time shifting, youtube
Companies: mp3rocket, youtube

What's Left Of The Sony Betamax Decision?

from the chipped-away-piece-by-piece dept

Michael Scott points us to a writeup by lawyer Will Cross (who apparently is now at the library school at Duke) which kicks off by looking at how retiring Supreme Court Justice John Paul Stevens really had a huge impact on the future of the internet, by writing the majority opinion in the hugely influential Sony Betamax case, which highlighted important exceptions to copyright law. Cross then also points to Stevens' decision striking down much of the Communications Decency Act as being unconstitutional for seeking to restrict expression online only to "what is fit for children." However, the post then goes bit by bit through what's happened since then, and shows how the Sony Betamax decision has been trimmed further and further back, to the point that the basic principles set forth by Stevens in both cases are increasingly unrecognizable:

After a decade of fruitless lawsuits and on the heels of another legal victory, this time against file sharing service Limewire, content owners are gearing up for yet another round of lawsuits this week.  The problem with this bellicose response to file sharing is that Justice Stevens' open internet is increasingly caught in the crossfire.

This response to file sharing has taken a significant toll on the efficiency of the legal system and has bent the law badly out of shape.  As Eric Goldman's blog, cited above, notes, "there is 'normal' copyright law and then 'P2P file sharing' copyright law, and it's a mistake to think those two legal doctrines are closely related."  Content owners have repeatedly pushed for extreme, or simply non-legal, readings of copyright and fair use, most famously in the Lenz case dealing with bogus takedown notices (and a dancing baby) and the recent Jammie Thomas case dealing with excessive statutory damages.  They are also attempting to rewrite the already draconian DMCA, an irony matched only by the sublime absurdity of content owners suing one another over pirated anti-piracy technology.

More troubling, these lawsuits have also begun to target not only users but service providers.  Content owners have been overburdening ISP's with automated discovery requests for years and have recently begun to attack ISP's directly.  They have also sought an injunction against the bandwidth provider for file sharing service The Pirate Bay, essentially arguing for fourth party liability.

This erosion in Justice Steven's principle of an open internet reached a new low with a California court's recent injunction against BitTorrent search engine IsoHunt requiring it to remove all links pointing to infringing files. This, of course flies in the face of Stevens' principle about non-infringing uses and requires IsoHunt to have the same infeasible knowledge and control over users as was struck down in Reno.   If the Pirate Bay case is the equivalent of suing AT&T for an obscene caller's ramblings then this case is akin to requiring that Sprint disconnect anyone whose phone might be used for unlawful acts even before those acts have been identified as unlawful.  It cannot be done and the only alternative is to shutter the technology completely or simply bend over backward to accommodate any and all measures litigious content owners may seek to employ.

When Cross puts all those stories together like that, you realize how much of the last few years has really been about the entertainment industry effectively dismantling the core concepts put forth by Stevens in the Betamax decision. A key component to what helped make the internet free to become the internet we know, love and use every day, is slowly getting chipped away by special interests who don't want to allow that freedom because it undermines their business models. When you put all of that together in one place and realize how much has already been eroded, it's downright frightening, and it makes you wonder what great new technology won't be built and won't be widely used because of these policies.

Filed Under: betamax, copyright, infringement, internet, justice john paul stevens

Copyright Battles Are About Controlling New Technologies

from the seems-like-it dept

Copyright guru William Patry has a really interesting post remembering Harvey Schein, the man who oversaw the American launch of the Betamax VCR as head of Sony's American division. That was, of course, the product that produced the famous Sony decision upholding the legality of the VCR and its "record" button. The Betamax precedent is widely seen as a foundation of the modern consumer electronics industry because it gives manufacturers confidence that they can build useful media tools without worrying about liability should their customers use the tools to infringe copyright.

Patry mentions an aspect of the case that I hadn't realized before: MCA/Universal, the lead plaintiff, wasn't just worried that the VCR owners would tape shows rather than watching re-runs. It was also planning to release a laser disc technology called Disco Vision. MCA/Universal apparently worried that a successful Betamax VCR would have undercut the market for laser discs. Schein is quoted as saying "I don't think it was accidental that the company that took the lead in fighting the videocassette held all the patents on the videosdisc."

This will sound eerily familiar to anyone familiar with more recent copyright controversies. For more than three decades, Hollywood and the recording industry have consistently tried to use copyright law to stop any technology they didn't control. In 1992, the music industry persuaded Congress to mandate cumbersome DRM for digital audio formats, stunting the development of that technology. In 1998, the music industry unsuccessfully tried to sue the MP3 player out of existence. Also in 1998, at the behest of the copyright lobby Congress enacted the DMCA, which gave content creators unprecedented control over the design of technological devices. Hollywood has used the DMCA to effectively outlaw set-top boxes that act as DVD jukeboxes.

Of course, in every one of these cases, the copyright lobby's arguments have focused on the threat of "piracy." But when they've won, the practical result has been to give content creators the power to control the evolution of media devices. And when Hollywood and the record labels control technological progress, the results aren't pretty.

Filed Under: betamax, control, copyright, harvey schein, technology, vcr, william patry