A Lesson In Copyright: It Does Not Give You Total Control
from the in-case-you-were-wondering dept
A few weeks ago, we wrote about American Airlines was suing Google for trademark infringement due to keyword ads on Google using the phrase “American Airlines” that pointed visitors to competing airline sites or sites that sold American Airlines tickets alongside those of competitors. The history of similar cases suggests that American Airlines is going to have a tough time making its case. First of all, it’s not illegal to use the trademarked name of another company in an advertisement as long as there’s no indication that the ad is for them (in other words there’s no customer confusion). Second, if there is confusion in the ad, then the problem isn’t between American Airlines and Google, but American Airlines and the advertiser.
It’s not clear why, but a week and a half after this story appeared, someone dropped by to add a comment to the story insisting that American Airlines is in the right here, though they don’t give any support reasons why. What was odd, though, was that the comment linked to the copyright page of the website of a credit card processing service, saying that you could download the PDF of AA’s filings there. That seemed especially strange. It’s not clear why it was linking to a credit card processing service (which originally made me wonder if the comment was merely spam) or why any company would put up the details of a totally unrelated lawsuit on its own copyright page. The lawsuit isn’t even about copyright, but trademark. However, what struck me is that the copyright page itself is wrong. It claims:
“No portions of this website may be reproduced or copied without the express written permission of the owner.”
And then goes on to selectively highlight or quote certain parts of copyright law. Of course, this is wrong. As I did above, you can absolutely reproduce or copy portions of this company’s website without the express written permission of the owner. It’s called fair use, and while many copyright holders want to pretend it doesn’t exist — it absolutely does. Quoting a small portion of a website, especially for the purpose of, say, educating people about fair use, is fair use at work. Of course, this reminds me of when law professor Wendy Seltzer got a DMCA notice for trying to point out that the NFL misapplies copyright law in its own copyright statements that make a similar claim as the site above does.
Filed Under: copyright, copyright abuse
Companies: merchant card service
Comments on “A Lesson In Copyright: It Does Not Give You Total Control”
I say let them have their copyrights
What would happen if every company owned its copyrights and no other company could mention them?
A Google search for American Airlines would give you results like this:
“No results were returned for those words. We would point you to that company’s website, but mentioning their website is against their copyright rules. May we suggest TWA or United or Frontier or AirTran for your flying needs.”
Listening to a baseball game would go something like this:
“And the player swings a something and hits the spherical object. The spherical object flies somewhere, but I can’t use the names due to copyrights. Some other player catches it! But I can’t tell you the player’s name or number because of copyrights. He throws the spherical object somewhere, but I can’t say where because of copyrights. Some other player catches it. Boy, was that exciting. He’ll certainly be proud of that catch. That’s one for the record books!”
So, let these companies have their copyrights and see how long it takes until people either get confused by how the media can’t use the actual names or until people just get so mad at the company’s attempt to control everything.
Just saying so doesn't make it true.
Re: Just saying so doesn't make it true.
Dang, I hate the to submit response.
Just saying so doesn’t make is so.
For example, you typically “own” you name but you cannot forbid use of your name without expressed written consent.
Like the Ditech commercial: People are Stupid, and they are easily taken with tricks, sleight of hand and busy commercials that make them feel good.
Don't blame the big G
This isn’t Google’s fault. They can’t be blamed for the competing advertisers’ use of AA. I just googled “American Airlines,” and the first hit was the official site. So what’s the problem? Of course companies use each others’ names in ads or on the site. What an uncapitalist idea.
Re: Don't blame the big G
Why do I have a feeling you are going to be burned at the stake for being an idolater because you refered to Google as “The Big G” rather than God?
Sorry for the off topic but I’m currently surrounded by rabid conservatives who are trying to tell me the Bible has nothing but good points.
I guess genocide does have its fun parts.
Re: Re: Don't blame the big G
What a jerk.
Durr….
Copyright gives you as much control over your content as stipulated in the Copyright Act. Such as: Distribution, Modification, and the right to display publicly.
The quote:
“No portions of this website may be reproduced or copied without the express written permission of the owner.”
is perfectly legitimate.
Fair Use is not a right, it is not a list of specific limitations of Copyright, and it is does not allow for any use other than the uses provided by license by the copyright holder.
Fair Use is merely an affirmative defense that can be used to have an act of Copyright Infringement deemed non-infringing. Simply put, if brought into court, you could argue that the act of infringement you are being accused of was for research, education, or non-profit, and did not harm the market for the product.
The defense has been used successfully in the past to deem backups as non-infringing, but this in no way implies that creating a backup is a “right”. Each act of infringement tried with the Fair Use defense must survive or be defeated on it’s own merits, not past case-law.
Hope this clears things up a bit.
Re: Re:
The quote:
“No portions of this website may be reproduced or copied without the express written permission of the owner.”
is perfectly legitimate.
For reasons why you’re wrong: http://news.com.com/Separating+fact+from+fiction+on+digital+copyrights/2010-1030_3-6204450.html?tag=html.alert.comp
It is not a legitimate quote, because the owner of the content does not have the right to prevent you from doing all of that without express written permission.
Re: Re: Re:
So your response is basically a repost of the story above?
Talent flows from every pore, I am sure…
Relevant quote from the article you linked:
“This statement is simply untrue–the federal copyright statutes specifically allow unauthorized reproduction for criticism, commentary and other purposes”
The articles author is implying that Fair Use is more than an affirmative defense.
She is wrong. What else can I say?
Want me to post the Fair Use portion of the Copyright Act? it’s quite small, actually:
” Although the doctrine of fair use was originally created by the judiciary, it is now set forth in the Copyright Act. Under the Act, four factors are to be considered in order to determine whether a specific action is to be considered a “fair use.” These factors are as follows:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
“
Point of fact: These are defenses one may use to defend an act of infringement. They do *not* take any rights from the Copyright Holder, nor do they guarantee anyone else *any* specific rights whatsoever.
Point of opinion: Our current model of copyright is in *serious* need of overhaul. We need only look to Germany (Limited Copyright) or Russia (Community Copyright) for examples that far exceed our in terms of fairness and common sense.
As for Copyrighted Content under our current laws, you have no rights other than those bestowed upon you via licensing to any copyrighted content. Period. It sucks, but that’s the hard truth. For years people have spread this false notion that Fair Use guarantees consumers rights regarding certain uses. It does not. It simply offers them a means to defend themselves if accused.
Re: Fair use IS a right
>Fair Use is not a right
Yes it is. A right is simply a legally justified claim. Look it up.
All of copyright law is based on the principle that all information and ideas, by rights, belong to public. However, in the interests of persuading the owners of printing presses to use their expensive investment to distribute interesting ideas to the public (for the public good) a *temporary* and *limited* right to profit exclusively from a particular formulation of an idea or information (this does not cover different formulations of the same idea or information) so as to provide commercial motivation.
In other words copyright holders are temporary and limited beneficiaries of artificial commercial monopoly, but the copyrighted material has no owner and once the temporary and limited license to profit exclusively expires, the copyrighted material reverts to its “natural” state: “owned” by no one and by all.
>Fair Use is merely an affirmative defense that can be
>used to have an act of Copyright Infringement deemed
>non-infringing.
No, fair use is a recognition of the underlying principle that ideas and information belong to no one and to all, and that even a temporary license for exclusive commercial benefit needs limitation to the extent of the exclusivity.
>The defense has been used successfully in the past to deem
>backups as non-infringing, but this in no way implies that >creating a backup is a “right”.
Well, yes in fact it is a legally recognized claim (entitlement to do something).
Fair use is only one of many limitations to copyrights. For instance, the Audio Home Recording Act establishes that it is legal in some circumstances to make copies of audio recordings for noncommercial personal use.
Section 117 of the Copyright Act (enacted 1980) provides that the owner of a legal copy of a program may make a copy of it is for archival purposes.
Any privilege expressly guaranteed by an Act of Congress is by definition a right. Look it up.
>Each act of infringement tried with the Fair Use defense
>must survive or be defeated on it’s own merits, not past
>case-law.
For the same reason that each plea of non-guilty to a criminal charge must survive or be defeated on it’s own merits. Because defendants are considered innocent until proven guilty. The prosecution needs to prove that a law has in fact been broken, and the defense needs to address the proofs that the prosecution brings forward.
I put my real name at the head of this post. I challenge you to put yours, Mr. or Mrs. Anonymous CowHerd
Re: Re: Fair use IS a right
Read the Fair Use section of copyright, much of which I posted above. It specifies no rights whatsoever. Nor are they “limitations” of copyright. Again, look at it. They do not mention any limitations, nor do they mention specific uses to be allowed.
“Section 117 of the Copyright Act (enacted 1980) provides that the owner of a legal copy of a program may make a copy of it is for archival purposes.”
This applies to Computer Programs only, which is not what the article above, nor the article linked by the other user implied. Since the articles specifically mentioned the RIAA/MPAA, (or, the “AAs”), I did not feel the need to be specific on that point. My bad.
“Any privilege expressly guaranteed by an Act of Congress is by definition a right. Look it up.”
Please show me where, in the Fair Use portion of Copyright, Or anywhere else, for that matter, it specifically mentions *any* act not carried out by the copyright holder as guaranteed (relating to copyright the AAs hold). Trust me, I’ve been looking it up daily for the past 13 years.
“Because defendants are considered innocent until proven guilty. The prosecution needs to prove that a law has in fact been broken, and the defense needs to address the proofs that the prosecution brings forward.”
Only in criminal courts, not civil courts where most copyright cases are tried. This statement alone leads me to believe you have zero actual experience with copyright and copyright law. In civil courts, the burden of proof is on the defendant.
“I put my real name at the head of this post. I challenge you to put yours, Mr. or Mrs. Anonymous CowHerd”
Exactly what would purpose would that serve? The Law is available for anyone to read. Having a name attached to the person quoting it makes no difference to the validity of it since it can be so easily verified. If I were a paranoid person, I would suspect the intentions of that comment.
Re: Re: Re: Fair use IS a right
Still Anonymous huh? I would have bet on it. I dare you, put your reputation where your mouth is. Tell us your name and where you “practice”.
Now to address your ramblings:
>Read the Fair Use section of copyright, much of which I
>posted above. It specifies no rights whatsoever. Nor are
>they “limitations” of copyright. Again, look at it. They do
>not mention any limitations, nor do they mention specific >uses to be allowed.
You are avoiding addressing the substance of my arguments. Whether deliberately, through cowardice, or inadvertently, though ignorance, I do not know.
Additionally, you have misrepresented the text of the Copyright Act. The four bullet points are correct, but the preceding paragraph “Although the doctrine of fair use was originally created by the judiciary…” is a commentary by someone (perhaps yourself) and not part of the Act.
The actual text of the preceding paragraph is as follows:
“Notwithstanding the provisions of sections 106 and 106A, 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.”
This is an explicit statement of rights of use. Passed into law by the 94th United States Congress. I provide for your education and edification a portion of Webster’s definition of right:
“something to which one has a just claim” and “the power or privilege to which one is justly entitled” and finally (germane to our discourse) “the property interest possessed under law or custom and agreement in an intangible thing especially of a literary and artistic nature”
Consider yourself taught.
Now back to the substance of my argument, which perhaps you will see fit to address in your next reply.
The original *intent* of copyright law was to promote the dissemination of ideas and information. Ideas and information belong to no one and to all. The copyright act makes this principle clear in Section 102 Subject matter of copyright: In general, paragraph (b) where is states: “In no case does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is described, explained,
illustrated, or embodied in such work.”
Furthermore it is worth pointing out that the Act does not confer ownership of the actual copyrighted works to anyone including the author. It confers limited rights and uses the language “ownership of rights” to authors.
In fact it confers two specific rights to authors (Sections 106 and 106a) and then immediately proceeds to outline 16 different limitations to those rights (Sections 107 through 122). Since your comment “Want me to post the Fair Use portion of the Copyright Act? it’s quite small, actually” suggests that you place importance on the length of text devoted to a subject, I will point out that 1037 words (including page numbers and section titles) are devoted to describing the rights conferred to authors and that 32,708 words are devoted to describing the limitations to those rights.
I repeat: copyrights are temporary and limited. Extremely limited in fact.
I stated:
>>”Section 117 of the Copyright Act (enacted 1980) provides
>>that the owner of a legal copy of a program may make a
>>copy of it is for archival purposes.”
And you replied:
>This applies to Computer Programs only, which is not what >the article above, nor the article linked by the other user
>implied. Since the articles specifically mentioned the
>RIAA/MPAA, (or, the “AAs”), I did not feel the need to be
>specific on that point. My bad.
I was not responding to the article which I did not even read. I was responding to your statement in your original post that: “The defense has been used successfully in the past to deem backups as non-infringing, but this in no way implies that creating a backup is a “right”.”
I was pointing out that your statement was false. The link to the article in question was posted by another person in another completely different reply to your false assertions.
Try and keep up.
Again, I wrote:
>>”Any privilege expressly guaranteed by an Act of Congress
>>is by definition a right. Look it up.”
And you replied:
>Please show me where, in the Fair Use portion of Copyright, >Or anywhere else, for that matter, it specifically mentions >*any* act not carried out by the copyright holder as >guaranteed (relating to copyright the AAs hold). Trust me, >I’ve been looking it up daily for the past 13 years.
First we have to agree that a law that confers a privilege or right is a guarantee of that privilege or right. If not that I will have switch words from “guaranteed” to “assured” or “conferred”. So if you object to guaranteed, just substitute one of those other words in your mind…
Section 107 guarantees that copyrighted works may be used by anyone without restriction provided that purpose of that use is “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” Such as when I copied portions of Webster’s online dictionary to school you.
Section 108 guarantees that a library may make one copy of a copyrighted work provided that “(1) the reproduction or distribution is made without any purpose of direct
or indirect commercial advantage;
(2) the collections of the library or archives are (i) open to the public, or
(ii) available not only to researchers affiliated with the library or archives or
with the institution of which it is a part, but also to other persons doing research
in a specialized field; and
(3) the reproduction or distribution of the work includes a notice of copyright
that appears on the copy or phonorecord that is reproduced under the
provisions of this section, or includes a legend stating that the work may be
protected by copyright if no such notice can be found on the copy”
Section 109 guarantees that “the owner of a particular
copy or phonorecord lawfully made under this title, or any person authorized
by such owner, is entitled, without the authority of the copyright owner, to sell or
otherwise dispose of the possession of that copy or phonorecord.”
I draw your attention to the words “without the authority of the copyright owner” significant not only because it is an act “not carried out by the copyright holder” as you so delicately put it, but also because it again makes clear that the ownership is in rights, not of the work in question. Why? because works can not be owned, only specific material embodiments of that work (copies).
And so on, and so on. Every section from 107 to 122 confers (guarantees) one or more rights to persons not the copyright holder. Again I repeat myself: Fair use is just one of many restrictions on copyright. Copy right does not confer the kind of absolute ownership and control that you would seem to want us to believe.
I spouted some nonsense, and you justly replied:
>”Only in criminal courts, not civil courts where most
>copyright cases are tried. This statement alone leads me to
>believe you have zero actual experience with copyright and
>copyright law. In civil courts, the burden of proof is on
>the defendant.”
You are quite correct. My point was rubbish.
I challenged you to reveal your true name, you ask:
“Exactly what would purpose would that serve?”
It would serve to make you more accountable for your pronouncements by putting your reputation at risk. I have no fear or hesitation that someone would judge my profession (or personal) competence based upon the arguments I put forth in this thread. You on the other hand for some reason do not wish your real name to be known. You may tell me why that is, and I will take you at your word, but until you do, I will choose to believe that it is because you do not have the courage of your convictions.
>The Law is available for anyone to read. Having a name
>attached to the person quoting it makes no difference to
>the validity of it since it can be so easily verified. If I
>were a paranoid person, I would suspect the intentions of
>that comment.
So it is, and so I have. And so I encourage others to do.
Thank you for the spirited debate.
best regards,
Adam
Re: Re: Re:2 Fair use IS a right
Ah.
I think I see our disconnect. Had to read it a few times.
It seems a majority of our mis-communication may, in fact, be due to the fact that I was being overly general. I was specifically referring to printed, audio, or video content as it relates to the quote they are whining about. I should have been more specific, both in my statements and in what my original post was in regards to (and the limitations of its scope?).
You posted:
“for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for classroom use),
scholarship, or research,”
from the section concerning Fair Use. (The text I posted was ripped from bitlaw, the pretext is theirs.)
When ascribing rights to consumers, my definition of right is one that pertains to *all* consumers, not limitations of copyright that only pertain to librarians, reporters, researchers, etc. While I suppose the comment portion *could* relate to all consumers, it’s intent in that regard is unclear.
You are correct. Pretty much every section of copyright contains limitations. This is due more so to the fact that aside from *those* limitations, everything else is exclusive to the copyright holder. The list is much shorter this way.
Regardless, these limitations do not reasonably or realistically apply to the vast majority of consumers, which leads me back to the point of my original post regarding the use of the quote they are whining about:
“No portions of this website may be reproduced or copied without the express written permission of the owner.”
As this applies to the vast majority of consumers, it is correct and true. It also does not mention being sold or transferred, which you brought up, again, due to the generalization of certain of my statements.
Again, you said it yourself. Fair Use and a majority of the Copyright code consist of limitations of the rights of the holder. IMO, this implies only certain rights to certain people, for certain uses. IMO, it is also not reasonable to ask copyright holders to change their tunes (if you’ll forgive the pun) for a statistically non-existent portion of consumers.
Let me, if you will, rephrase my original statement:
Fair Use is not a right. It is not a list of specific limitations of Copyright *except* for certain uses in specific situations that do *not* affect marketability of the content under Copyright. It is does not allow for any use other than the uses provided by license by the copyright holder. While some limitations outside of Fair Use can be interpreted as “rights” to limited uses reasonably limited to certain professions and areas of study, most of the limitations simply do not apply to the general public. Thus, for the vast majority of consumers, the quote in question here is valid and legitimate.
If you will humor me, run that through your mind a bit and give me your feedback.
As for my name…
Call me paranoid. Believe me a coward. As you wish. There is more at stake online than my mere credibility. While the name “Andy Wasserman” is relatively common online (A quick Google resulted in many unrelated folks by that name), mine is, unfortunately, much less common and I have spent most of my “online” life trying to keep my “offline” life as separate as possible with the exception of my business and certain related sites.
If, in your view, this invalidates my credibility, so be it. It is a small price to pay by comparison. It’s a small world. It would not be incredibly presumptuous to think that perhaps someday we might carry on this discussion in person. Perhaps even professionally… 😉
Re: Re: Re: Fair use IS a right
You wrote:
===
Fair Use is not a right. It is not a list of specific limitations of Copyright *except* for certain uses in specific situations that do *not* affect marketability of the content under Copyright. It is does not allow for any use other than the uses provided by license by the copyright holder. While some limitations outside of Fair Use can be interpreted as “rights” to limited uses reasonably limited to certain professions and areas of study, most of the limitations simply do not apply to the general public. Thus, for the vast majority of consumers, the quote in question here is valid and legitimate.
If you will humor me, run that through your mind a bit and give me your feedback.
===
I would like to meet you halfway. I would agree that your position is correct except as regards our apparent diasagreement on the defintion of a right, in which we will just have to agree to disagree, but agreeably I hope.
I would also go so far as to say that your position reflects a good deal, perhaps even the majority, of public opinion.
That is that one could hope to obtain a perpetual monopoly, a sinecure, on something so common as an idea, or turn of phrase. I see it as a reflection of the “get rich quick” ethic, lots of money with now ongoing work necessary.
In this regard I impute an attitude that may not in fact be true of you, and if I am wrong in any regard, I apologize.
But attitude is indeed at the crux of concern. Most people have to work continually in order to make money. An architect is not able to count on a regular paycheck after designing just one building. A doctor can not retire after one successful operation. And yet the author of a book or song can expect revenues for decades. Publishers can enjoy a monopoly that very conceivably prevents books from reaching their fair market value. (if one subscribes to Friedman style economics)
It is my belief that central to the original *intent* of copyright law is that ideas and information can not be owned, and that even particular formulations and embodiments are not naturally meant to be owned, and that they must serve the greater good, the public interest, and that any rights grated by copyright are a necessary ill, tolerated for only a limited period of time, and carefully constrained.
I admit that public opinion may well have shifted away from this view, and that laws should reflect the majority opinion. No matter if my personal opinion is that that shift has been motivated by greed, avarice, and a desire to avoid hard work and healthy competition. But I do believe some informed public debate (such as this) is good and necessary for an informed public opinion.
You reply to my challenge with an explanation that I will not quote, but that I will accept and take, as I promised, at face value and in good will. BTW it is “Adam” Wasserman, and if we ever bump into each other in person, I would be pleased to have you introduce yourself.
best regards,
Adam
DIY
Try cracking open a dictionary. It has the same “cannot be used without expressed written permission..” disclaimer, and from the dictionary dot com website:
Which seems to say to me that if you write a book with more than 1% of the words in the english language you their written permission.
Okay maybe maybe I’m being silly. 😛
Wow
Best. Comment. Thread. Ever.
ok just lately
I will add nothing of worth to the conversation/debate other than to say that I pray that one a day a pathogen is created that causes Trial, Personal Injury, Copyright, Patent, Sports, Entertainment attorneys to hemorrhage blood and stool out of every wasted orifice of their useless parasitic bodies eventually resulting in a painful and prolonged death.
Attorneys create NOTHING and as such should never be considered one of the “noble professions”.
fair use
It’s important to remember that fair use is not a right, it is a defense. Fair use has no power until someone tries to sue you, then, you use the fair use defense to keep from losing. Fair use won’t keep you out of court but it will let you win.
Re: fair use
No offense intended but what are you on? Someone could sue me for buying the last chocolate bar in the shop that they were planning on getting saying I “stole it”. I obviously had every right to buy it just as they did. Obviously they would have no case but it doesn’t mean I don’t have to go to court to get it dismissed. My “defense” would be that it was not against the law and so obviously it should get chucked out of court.
Just as with copying covered by Fair Use is something that isn’t against the law. You could get sued for it just as for anything but that doesn’t mean you didn’t have the right to do it. The court would say nothing illegal was done so you had every right to do it. The law being on your side allows you to “keep from loosing”
Saying that it is only a defence is stupid. It is not your defence. Your defence is that you only did what you had the right to do. Fair Use just specifies those rights.