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 It's not clear why it was linking to a credit card processing service (which originally made me wonder if the comment was merely spam) or why any company would put up the details of a totally unrelated lawsuit on its own copyright page.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, 2 Sep 2007 @ 4:48pm

    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

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