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 It's not clear why it was linking to a credit card processing service (which originally made me wonder if the comment was merely spam) or why any company would put up the details of a totally unrelated lawsuit on its own copyright page.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, 1 Sep 2007 @ 8:41pm

    Re: Re: Fair use IS a right


    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... ;)

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