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 It's not clear why it was linking to a credit card processing service (which originally made me wonder if the comment was merely spam) or why any company would put up the details of a totally unrelated lawsuit on its own copyright page.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, 1 Sep 2007 @ 3:56pm

    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

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