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 It's not clear why it was linking to a credit card processing service (which originally made me wonder if the comment was merely spam) or why any company would put up the details of a totally unrelated lawsuit on its own copyright page.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


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  1. identicon
    Anonymous CowHerd, 31 Aug 2007 @ 7:41pm

    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.

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