Fair use is not a consumer right

Copyright Alliance head Patrick Ross says industry interests asking the government to regulate free speech are going down the wrong path.

The Computer and Communications Industry Association in August implored the Federal Trade Commission in a filing to parse through language found in copyright warnings appearing before movies, television sporting events and other places.

In a column, one of its executives, Maura Corbett, recently defended that action on behalf of CCIA.

Despite the fact that we've been reading and hearing these copyright notices for decades, in CCIA's view, Western civilization is now suddenly in jeopardy. Corbett made the same argument CCIA's president offered at the press conference announcing the FTC filing: "If we were to believe what they tell us, discussing Barry Bonds' home runs around the water cooler would put us all in jail."

Really? The last few weeks I have been completely unable to avoid hearing about Barry Bonds, whether around the proverbial water cooler, on call-in sports radio programs, in idle moments on 24-hour cable news channels, or even during local weather reports ("there's only a low chance for a rainout for tonight's game, and Bonds could have a bit of a boost--a natural one, not artificial--for that next home run with a strong 15-mile-per-hour wind from the east; we'll keep you posted, Ken"). Sometimes I wish speech about Barry Bonds could in fact, be stifled.

These warnings do exactly what they're meant to do--notify consumers in a succinct fashion that infringement has legal consequences.

But let's look beyond the hyperbole. CCIA has offered no demonstration of harm caused by copyright notices; if they had any they would surely have included it in their FTC filing, but it's eerily silent on that point. So what do they really want? They say they want additional wording explaining ways copyrighted works could be used without authorization, because fair use is a "consumer right."

This misleading statement presents considerable irony, given the fact that CCIA is filing a complaint alleging deceptive language. Fair use, as CCIA must surely know, is not a "consumer right," but rather an affirmative defense. And this is an important difference.

It's true that copyright law contains some exemptions, such as commentary and criticism, where one may be able to use a copyrighted work without authorization, but the full extent of those exceptions is intentionally not defined in the statute. (In one example of fair use, CNET is free to report and comment on newsworthy events and to offer informative consumer reviews of new products.)

Court decisions have further delineated what some of those cases of fair use might be. Under fair use, if I take without permission and make use of your copyrighted work, and you sue me, I can assert, "Hey, I know I didn't ask you, and you're quite upset about my use, but I firmly believe it's legal." Then a judge decides whether my use was an infringement or instead an unauthorized use that turned out to be exempt under fair use.

Many unauthorized uses of copyrighted works are criminal and infringing, and copyright notices help remind people that there are consequences to these uses. A few uses may be able to pass muster as fair use before a judge. Still others, including some uses within the home, may not be specifically designated fair use by a court, and may or may not qualify if put to the test, but are generally not the subject of legal challenges by a copyright owner.

So, how exactly would the FTC rewrite these copyright notices to reflect a consumer's ability to attempt a fair use defense? Should they paste in all of the above language? We're wading into the area of providing legal advice, and these examples aren't sufficiently detailed for that. We could have an IP lawyer fold in a treatise on fair use, and baseball announcers could start reading it at the seventh-inning stretch to make sure they finish it before the end of the game.

I don't think we want copyright warnings to become a fair use public service announcement. No, these warnings do exactly what they're meant to do--notify consumers in a succinct fashion that infringement has legal consequences. Going further has risks; for example, describing fair use merely as a "consumer right" can lead otherwise well-meaning individuals to infringe on content and face civil or criminal liabilities, because they only paid attention to the misleading disclaimer forced into the notice and acted in a way that wasn't covered under "fair use" as legally defined.

There is no question that in the Digital Age, consumers need a better understanding of both the rights of creators as well as the limits on those rights through fair use. Education is the right approach, and one to which the Copyright Alliance is dedicated. But asking the federal government to regulate free speech is not the best way to proceed. Now if FTC officials instead want to hold a public meeting on the significance of Barry Bonds' new home run record, they are of course welcome to do so under the law. I think I'll skip it, though.

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