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 It's not clear why it was linking to a credit card processing service (which originally made me wonder if the comment was merely spam) or why any company would put up the details of a totally unrelated lawsuit on its own copyright page.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
    Adam Wasserman, 31 Aug 2007 @ 8:40pm

    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

    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

    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

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