If You're Promoting Copyright Without Fair Use, You're Promoting Out And Out Censorship

from the let's-be-clear-on-this dept

A couple of weeks ago, we wrote about how the Sony email hack revealed the MPAA's true position on "fair use," which was that it was "extremely controversial," and the MPAA didn't want it included in various trade agreements. It was amazing to see some in our comments and on Twitter attack this concept, by arguing that "fair use" is really some sort of nutty code word for "piracy." Others, bizarrely, argued that pushing for fair use was some sort of "cultural imperialism" (as opposed to extending copyright and patent maximalism, which apparently has nothing to do with such cultural imperialism...).

Geoffrey Manne jumped in with a (only slightly) less ridiculous critique, trotting out the usual talking points of copyright maximalists on why we can't have fair use in trade agreements (even if we can and do have extending copyright terms, enhancing copyright penalties, intermediary liability, and a variety of other things included in those agreements). First, he goes with the whole "fair use is piracy" ridiculousness:
Including such language in TPA would require U.S. negotiators to demand that trading partners enact U.S.-style fair use language. But as ICLE discussed in a recent White Paper, if broad, U.S.-style fair use exceptions are infused into trade agreements they could actually increase piracy and discourage artistic creation and innovation — particularly in nations without a strong legal tradition implementing such provisions.
This, frankly, is hogwash. There is no indication in any manner whatsoever that having fair use discourages artistic creation and innovation. That's simply ridiculous on its face. After all, the US currently does have one of the most permissive fair use systems (although it's still way too limited), and it's difficult to find anyone arguing that they're not creating because of all that fair use breaking out. Instead, we're in the golden age of creative content, with more people creating more content than ever before. The idea that fair use would suddenly scare people away from making content is so laughable that it really takes away any credibility Manne might have on the issue.

Next, he argues that because of the TRIPs agreement, we already have fair use in our trade agreement, known as the "three step test." And, indeed, as we discussed back in 2012, the USTR, for the first time, did agree to include a reference to the "three step test" in the TPP. But (and this is the important part), the three step test is not about including fair use, or mandating or recommending fair use, rather it is entirely about limiting fair use. That's why the three step test opens with how members are limited in how they can implement fair use rights:
Members shall confine limitations or exceptions to exclusive rights to
  1. certain special cases, which
  2. do not conflict with a normal exploitation of the work and
  3. do not unreasonably prejudice the legitimate interests of the right holder.
That's not fair use by any stretch of the imagination. That's seeking to keep fair use to a minimum.

The next point is a really common one -- that was used to block fair use in the UK (and was also brought up in Australia when that country moved towards fair use last year) -- saying that because fair use in the US relies heavily on common law/case law, it's basically impossible to implement anywhere else. However, as Matt Schruers explains in a wonderful blog post over at the Disruptive Competition Project, that makes no sense at all:
Another argument that Manne offers against encouraging balanced copyright abroad is that civil law countries cannot interpret principles like Section 107-style fair use, which are informed by common law. Legal scholars may disagree (see n.25), pointing out that civil law countries are perfectly capable of, and often do consult prior case law, not for precedent, but for its interpretive value.

In fact, civil law countries have long wrestled successfully with open-ended principles in international agreements. For example, copyright’s idea/expression dichotomy is similarly developed by common law, and yet we’ve inserted that into the TRIPS Agreement and the WIPO Copyright Treaty, both of which have numerous civil law signatories. If inserting principles interpreted through common law into trade agreements would cause the international IP system to grind to a halt, it would have happened twenty years ago.
The condescension towards the idea that countries can't figure out their own ways to apply fair use is really ridiculous. The US figured it out, and other countries can as well, even if they're civil law countries.

Schruers, in his post, takes on another ridiculous attack on putting fair use in trade agreements, this one proffered by Justin Hughes, who has been instrumental in trying to convince the government not to include fair use in trade agreements. In that argument, Hughes says that if fair use supporters really believe it gives an advantage to innovation, then we shouldn't want to export it in a trade agreement, because it's giving us an advantage:
If one believes that the fair use doctrine has been a central element in the innovation environment that has made Silicon Valley wildly successful, why would we want to promote other countries adopting a policy that, by this account, is a competitive advantage?
But, uh, doesn't that strike at the rationale for any and every free trade deal? For people who believe in free trade, we should want to export the tools that lead to greater innovation because it makes the overall pie much larger. Hughes' argument is one against free trade, and he's bizarrely pushing it as a reason for why we should include this blatantly protectionist idea, by keeping it out of a supposed "free trade" agreement. The mind boggles.

But, really, what it all comes down to is this: the Supreme Court itself has repeatedly said that fair use is the "safety valve" that makes copyright law compatible with the First Amendment. Without it, copyright law would be illegal. Many of us, of course, believe that the valve is screwed way too tightly, and that it needs to be loosened, since free expression is regularly stymied by abusing current copyright law. But, either way, it should be clear that fair use is, without a doubt, a key element in any copyright regime. Without it, you have undermined free expression and enabled out and out censorship.

If the US is really trying to export its ideals in agreements like the TPP (and yes, the answer here may be that we are not), then it must include a mandate for fair use if it is going to include a mandate for copyright. The two have to go hand in hand, or you are advocating for out and out censorship.

Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 28 Apr 2015 @ 8:36am

    Considering that self publishing, on Youtube, Dailymotion. Vimeo etc., swamps the output of the traditional publishers, by several orders of magnitude, perhaps making money is not a prime driver of creativity.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Apr 2015 @ 9:12am

      Re:

      I never thought copyright encouraged creativity by financial gain. The people that enforce copyright the most are usually the people that bought the copyrighted material from the creative people and not the ones that actually did anything creative.

      reply to this | link to this | view in chronology ]

    • icon
      jupiterkansas (profile), 28 Apr 2015 @ 9:24am

      Re:

      Most creative acts are not done to make money, but simply to be creative. Once people try to make a business out of creativity, we run into problems.

      The big problem with current copyright law is it treats everyone's creative act like it has business potential, making people think everything created has monetary value, and that everything created retains monetary value for over a century. This is completely wrong.

      With an opt-in system (and searchable database) people who feel their works have value can pay to protect it, and everyone else can just be free to create. I'd have a lot more sympathy then when people cry infringement.

      reply to this | link to this | view in chronology ]

      • icon
        Leigh Beadon (profile), 28 Apr 2015 @ 9:38am

        Re: Re:

        There is a great quote on this subject kicking off Cory Doctorow's review of Amanda Palmer's new book:

        The question of "business models for the arts" is a weird and contradictory one. For one thing, the arts are a "non-market activity" - people make art for intrinsic reasons, starting from earliest childhood, and even the people who set out to earn a living in the arts are not engaged in any kind of rational economic calculus because virtually everyone who's done this has lost money. Of those who made money, most made very little; and of those who made a substantial sum, most had their careers quickly crater and never earned another penny from their work. Being a "professional artist" is about as realistic as being a "professional lottery winner" - there are lots of people who've tried, and though a few have succeeded, it's a statistical improbability on the order of, well, winning the lotto.


        http://www.newstatesman.com/culture/2014/11/standing-naked-front-audience-amanda-palmer-and-ne w-way-make-art

        reply to this | link to this | view in chronology ]

      • icon
        LAB (profile), 28 Apr 2015 @ 10:44am

        Re: Re:

        "Once people try to make a business out of creativity, we run into problems."

        This statement suggests that creators should not try to make a business from their creations because it causes problems, to which I could not disagree more.

        "The big problem with current copyright law is it treats everyone's creative act like it has business potential."

        Who is to decide that is does not have business potential? You, another? Business potential is decided by the market. The protections given by the statute to the creator allow him or her to explore the possibility without another with more capital using the same creation and not monetarily compensating the originator.

        "With an opt-in system (and searchable database) people who feel their works have value can pay to protect it, and everyone else can just be free to create. I'd have a lot more sympathy then when people cry infringement."

        An opt in system would automatically exclude those that were unaware or unable to pay the cost of registration, unless of course this registration were free. All are free to create. I do not believe sympathy for infringement is necessary, the law provides protections.

        reply to this | link to this | view in chronology ]

        • icon
          ottermaton (profile), 28 Apr 2015 @ 11:22am

          Re: Re: Re:

          Who is to decide that is does not have business potential? You, another? Business potential is decided by the market.

          Yes, that's exactly correct. The market should be deciding whose works have value, but that is not what has been happening. Current IP laws have twisted the market immensely and have created an environment where everyone thinks their "art" has market value when that is clearly not the case. Worse, it makes the market treat them all as if they're valuable.

          How are you managing to miss the point that badly?

          reply to this | link to this | view in chronology ]

        • icon
          Leigh Beadon (profile), 28 Apr 2015 @ 11:46am

          Re: Re: Re:

          This statement suggests that creators should not try to make a business from their creations because it causes problems, to which I could not disagree more.

          I don't think that's what anyone is trying to say. The problem arises when you try to talk about creativity in purely business terms. This is why I like the Doctorow quote above about art being a non-market activity. That doesn't exclude it from having a place in the market, but it does change the nature of that place.

          Creators who complain about piracy often include vague threats to the effect that, if copyright isn't more strongly enforced, somehow the world will evolve to be devoid of good music/film/art/what-have-you. But every single one of us knows that's not even remotely true — we know that people will continue to create regardless of the potential for reward (something they already currently do, since they know the potential for reward is low and has been for nearly a century of the entertainment business) because we know that, as Doctorow says, people create for intrinsic reasons starting from early childhood, and will always continue to do so.

          This doesn't mean we can't create systems to help creators make money, or that creativity can never be a business. But it does mean that attempting to talk about it in pure market terms is incomplete at best and foolhardy at worst.

          reply to this | link to this | view in chronology ]

        • icon
          Gwiz (profile), 28 Apr 2015 @ 11:49am

          Re: Re: Re:

          An opt in system would automatically exclude those that were unaware or unable to pay the cost of registration, unless of course this registration were free. All are free to create.

          Yes all are free to create, but the opt-in copyright would be for those who wish to monetize and protect their creations.

          As for registration, I like Derek Khanna's idea of a sliding scale. Free for the first year, but at an increasing cost for substantial renewals. If you are still earning income from your work then you should be willing to pay for such exclusive rights. If not, then the work goes into the Public Domain.

          I guess I just don't understand why creators are so against the registration of copyrights. If you value the exclusive rights granted to you via copyright so much then you should also be willing to expend a little extra energy and little extra money to receive those exclusive rights.

          reply to this | link to this | view in chronology ]

        • identicon
          JEDIDIAH, 28 Apr 2015 @ 2:15pm

          Overhead comparable to damages.

          > An opt in system would automatically exclude those that were unaware or unable to pay the cost of registration,

          Not a problem really.

          If something is going to be given a statutory value comparable to the cost of a single family home, than it damn well better be worth the trouble of dealing with an opt in system.

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 28 Apr 2015 @ 3:13pm

            Re: Overhead comparable to damages.

            If something is going to be given a statutory value comparable to the cost of a single family home, than it damn well better be worth the trouble of dealing with an opt in system.

            That really needs to be brought up any time someone criticizes the idea of an opt-in system as 'too much work', or 'too expensive'. Copyright law gives the owners massive benefits, the idea that some freakin' paperwork and processing fees would in any way be 'unfair' or 'too much' is ridiculous.

            You want the benefits, great, then you get to pay some fees and do some work to get them. There's nothing 'unfair' or excessively burdensome about that.

            reply to this | link to this | view in chronology ]

            • icon
              Gwiz (profile), 29 Apr 2015 @ 8:43am

              Re: Re: Overhead comparable to damages.

              You want the benefits, great, then you get to pay some fees and do some work to get them.


              Another way to think about is to consider the exclusive rights that copyright provides creators (at the expense of public's rights no less) as a privilege.

              For example, if want the privilege of driving a car on public streets you have to register and pay a fee.

              reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Apr 2015 @ 5:36pm

          Re: Re: Re:

          Let's see - every "creator" from the RIAA to Prenda to Malibu Media tried to make a business from their creations, and look at the mess they left behind.

          reply to this | link to this | view in chronology ]

      • identicon
        Pragmatic, 29 Apr 2015 @ 2:41am

        Re: Re:

        The big problem with current copyright law is it treats everyone's creative act like it has business potential, making people think everything created has monetary value, and that everything created retains monetary value for over a century. This is completely wrong.

        That's the problem: people buy into this idea hoping to make $$$ and freaking out if others do and they themselves miss out. Copyright is NOT property, and the sooner such language is inserted into the law of the land, the better.

        reply to this | link to this | view in chronology ]

  • icon
    pixelpusher220 (profile), 28 Apr 2015 @ 8:43am

    Copyright IS censorship

    the entire point is to prevent people from certain types of 'speech'.

    By any definition that is censorship.

    Fair Use and the limit-less, I mean limited, time frame are the supposed to be the balancing act of society vs creativity. (entirely a separate discussion)

    So yes, without Fair Use, it's only 1 side of the balance and you get predictable results from that 'scale'.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Apr 2015 @ 1:45pm

      Re: Copyright IS censorship

      pixel pusher - (i) copyright doesn't protect ideas at all - read section 102; (ii) the MPAA supports fair use and its members use it all the time. I can cite many cases. The TPA exception so broadens "fair use" that almost any use qualifies. Copyright is not censorship in part because it excepts ideas and fair use; you can talk all you want about something - just not using the author's words. And if an author doesn't want to get paid - Mr. Coward - she can elect a commons license or give her content away. But it's her choice - not the users.

      reply to this | link to this | view in chronology ]

      • icon
        John Fenderson (profile), 29 Apr 2015 @ 3:12pm

        Re: Re: Copyright IS censorship

        " the MPAA supports fair use and its members use it all the time."

        The MPAA only supports fair use when it benefits its members. It fights fair use tooth and nail in most other circumstances.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Apr 2015 @ 8:52am

    wut?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Anonymous Coward, 28 Apr 2015 @ 8:54am

    World without comment

    Imagine a world where it is illegal to discuss something that is copyrighted. No criticism, no analysis, no teaching. If you cannot quote, or view, or hear the subject, then one cannot talk about it. The maximalists would say, just buy a copy. The problem there is a big part of (lets use book critics) the critical analysis of a book is that it is a big part of the marketing of the book. If in ones analysis they cannot reference the subject of the analysis, then there is no analysis.

    Agree or disagree with the analysis, getting people to talk about it spreads the word. In fact, some controversy might just make it more talked about. After some time, people get to know the analyst, and make purchasing decisions based upon that analysts' take. The publishers seem to say, consume or don't consume, just give us money anyway, and don't talk about it.

    Deny fair use and shoot yourself in the foot, or so it seems.

    reply to this | link to this | view in chronology ]

  • icon
    Groaker (profile), 28 Apr 2015 @ 9:03am

    Censorship

    Perhaps it would be worthwhile to censor any, and all, products from the 'AAs. No selling or purchasing, no reviews, no advertising, no discussion. Send them to Coventry, in the British meaning.

    reply to this | link to this | view in chronology ]

  • icon
    Pronounce (profile), 28 Apr 2015 @ 9:04am

    By The People and For The People

    The U.S.'s response to the Sony hack should be all the evidence anyone needs. Contrast the U.S.'s Sony hack response to the continued lack of response to cyber attacks against its citizens in which they lose their savings and pensions due cybercrime.

    Be very sure that with the amount of data collected by the spooks they know the perpetrators of cybercrime. The only reason they don't do more thwart it is because they haven't been mandated to do more by those in authority.

    The culture of the elite class is so far removed from that of the common citizen they have no concept of what it means to be fair in terms of an egalitarian society. They just want us to be good consumers and stop complaining about the lack of fairness.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 28 Apr 2015 @ 9:26am

    If defending Megaupload, you're for out and out PIRACY.

    So where are the "copyright moderates" at Techdirt?

    reply to this | link to this | view in chronology ]

    • icon
      jupiterkansas (profile), 28 Apr 2015 @ 9:37am

      Re: If defending Megaupload, you're for out and out PIRACY.

      I don't know why I'm bothering to reply to your trolly comment but...

      You completely fail to understand the difference between defending Megaupload and being appalled at the abhorrent and careless actions used by the government to take them down. Even if it was Adolf Hitler selling infants into sex slavery, it wouldn't justify the government's actions. The ends do not justify the means, and it has absolutely nothing to do with supporting piracy, so please shut up about it.

      And I'm a copyright moderate. The basis of the law is incentive for artists, and it works because it prevents companies like Warner Brothers from simply taking my ideas and making a big movie without credit or compensation. But the law has become unreasonable and needs serious revision in a way that doesn't entirely benefit big companies like Warner Brothers. They haven't been willing to give up control, but people have taken it from them anyway.

      reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 28 Apr 2015 @ 9:48am

      Re: If defending Megaupload, you're for out and out PIRACY.

      So where are the "copyright moderates" at Techdirt?


      I'm not really sure how you are defining "copyright moderate", so I won't use that term.

      I will say that I am a "copyright minimalist" using the terms defined by Karl on his blog.

      reply to this | link to this | view in chronology ]

      • identicon
        JEDIDIAH, 28 Apr 2015 @ 2:19pm

        Re: If defending Megaupload, you're for out and out PIRACY.

        I would consider myself a "copyright reactionary".

        Bring back registration and roll back terms to 14 years with one extension.

        Private papers should also not be covered by "copyright". Not every worthless scrap of paper should be treated like the Mona Lisa. Not every scrap of data is art. Not every scrap of data is intended to be art.

        reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 28 Apr 2015 @ 10:08am

      Re: If defending Megaupload, you're for out and out PIRACY.

      So how is that comparing apples to oranges to try and confuse the issue business working out for you...
      *looks up at other replies*

      Ohhh... keep trying slugger you might get there eventually.

      reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 28 Apr 2015 @ 10:27am

      Re: If defending Megaupload, you're for out and out PIRACY.

      If I am defneding megaupload, I am for piracy. Hmmm.

      If Megaupload is proven to have been intentionally uploading or retaining infringing files, they will get what they deserve. But until that time, defending Megaupload's (and Kim Dotcom's) right to a fair trial (meaning having money to mount a defense), equal treatment under the law (including safe harbors if they can show they were adhering the DMCA), and pushing back against "the ends justify the means" vigilantism is not "pro out and out piracy". Its pro rule of law

      Your 'ironic echo' of the article's title is a bit flawed. 2/10. Would not read again.

      reply to this | link to this | view in chronology ]

    • icon
      DannyB (profile), 28 Apr 2015 @ 10:29am

      Re: If defending Megaupload, you're for out and out PIRACY.

      > So where are the "copyright moderates" at Techdirt?

      Some people say the sun rises in the East.

      Others say the sun rises in the West.

      Where are the moderates when you need them?

      reply to this | link to this | view in chronology ]

    • identicon
      jackn, 28 Apr 2015 @ 11:32am

      Re: If defending Megaupload, you're for out and out PIRACY.

      I'm a copyright moderate.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Apr 2015 @ 12:07pm

      Re: If defending Megaupload, you're for out and out PIRACY.

      Whether someone is a moderate or not is irrelevant in the case of fighting fire with fire. Since the starting position, sir Mannes opinion, is pretty one-sided, the answer will be too.

      Techdirt is not a neutral observer, there is a political opinion behind the writing, making the counter-push more important than staying completely objective (and who would be completely objective anyway?).

      reply to this | link to this | view in chronology ]

      • icon
        jupiterkansas (profile), 28 Apr 2015 @ 12:36pm

        Re: Re: If defending Megaupload, you're for out and out PIRACY.

        Part of the problem is that people seem to think TechDirt is a news site, when it's really an opinion site, commenting on news from other places. Offering opinions really gets some people riled up.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Apr 2015 @ 1:37pm

          Re: Re: Re: If defending Megaupload, you're for out and out PIRACY.

          Sure, but as mentioned, the distinction between opinion and news is rather blurry.
          Techdirt, like most other modern coverage media, isn't a good source unless you know the angle and use other sources to balance it.
          But the more you look at news, the more you will realize that news sources hold insufficient angles and perspectives to really cover the bases (they usually cover 2 perspectives). The reliance on Reuters and other news agencies also makes for quite an ecco chamber feeling in oldschool media.

          reply to this | link to this | view in chronology ]

          • icon
            John Fenderson (profile), 29 Apr 2015 @ 3:15pm

            Re: Re: Re: Re: If defending Megaupload, you're for out and out PIRACY.

            "the distinction between opinion and news is rather blurry."

            It's not that blurry, really. If you're used to "news" as it exists in the US it can seem that way, since there is very little news reporting in the US at all. The vast majority of what purports to be journalism in mainstream media is really just opinion.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Apr 2015 @ 1:47am

      Re: If defending Megaupload, you're for out and out PIRACY.

      "If defending Megaupload, you're for out and out PIRACY."

      That is a lie. Megaupload went far beyond any obligations in the DMCA.

      Rather than go though reasonable channels, the MAFIAA paid for the FBI to conduct an armed raid of dubious legal and moral quality.

      Since they couldn't get what they wanted politically, they acted with violence. There's an accurate and fair definition of that:

      If you're defending the takedown of Megaupload and the illegal armed raid on KDC, you're for out and out TERRORISM.

      reply to this | link to this | view in chronology ]

  • icon
    antidirt (profile), 28 Apr 2015 @ 9:51am

    The next point is a really common one -- that was used to block fair use in the UK (and was also brought up in Australia when that country moved towards fair use last year) -- saying that because fair use in the US relies heavily on common law/case law, it's basically impossible to implement anywhere else. However, as Matt Schruers explains in a wonderful blog post over at the Disruptive Competition Project, that makes no sense at all:
    Another argument that Manne offers against encouraging balanced copyright abroad is that civil law countries cannot interpret principles like Section 107-style fair use, which are informed by common law. Legal scholars may disagree (see n.25), pointing out that civil law countries are perfectly capable of, and often do consult prior case law, not for precedent, but for its interpretive value.

    In fact, civil law countries have long wrestled successfully with open-ended principles in international agreements. For example, copyright’s idea/expression dichotomy is similarly developed by common law, and yet we’ve inserted that into the TRIPS Agreement and the WIPO Copyright Treaty, both of which have numerous civil law signatories. If inserting principles interpreted through common law into trade agreements would cause the international IP system to grind to a halt, it would have happened twenty years ago.
    The condescension towards the idea that countries can't figure out their own ways to apply fair use is really ridiculous. The US figured it out, and other countries can as well, even if they're civil law countries.


    Manne's argument is that civil law systems shouldn't have open-ended, multi-factored balancing tests for fair use. Since precedent is merely persuasive, it is less likely that interpretations of the factors that, through repetition, become doctrine--such as transformativeness and parody--will develop. He's not advocating that there should be no exceptions and exemptions in civil law systems. On the contrary, his point is that it shouldn't be four open-ended factors like we have. Do you like our current, unpredictable system? I don't. I should think that spelling out the exceptions and exemptions is better. Might even lower transaction costs (for you utility lovers). Regardless, I think it's ridiculous to claim that he's vying for "out and out censorship." Grow up.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 28 Apr 2015 @ 10:11am

      Re:

      "Manne's argument is that civil law systems shouldn't have open-ended, multi-factored balancing tests for fair use."

      I agree with this position, but for completely different reasons. A huge problem with fair use in US copyright law is that it's a defense. It does you no good until you're sued. I suspect a big part of the reason for this is that there are no real "tests": the merits of a fair use claim must be decided by a judge. If nailing down what is or is not "fair use" means that fair use can come into play before a lawsuit, that would be better for all concerned.

      My nervousness, though, is that if we start of the path to make this happen, the end result will be that the major corporations who want to see the notion of "fair use" go away completely will take the opportunity to make that happen.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Apr 2015 @ 10:28am

        Re: Re:

        The problem with fair use is the US legal system, if you need to spend a lot of money to defend your rights, including fair use, then companies abuse the law to get people to comply with their wishes. It is the action of the publishers, labels and studios who have turned fair use into a defense, by using the threat of legal action as a club to get their own way. That way, only the rich, organization and those who are lucky enough to get pro bono legal support can exercise their right to free use if they feel strongly enough about it to put in the time needed to fight and win.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 29 Apr 2015 @ 10:55am

          Re: Re: Re:

          Mostly "legal defence" is a perverse name for shifting burden of proof. It does make one wonder how people can support so fundamental an erosion of the legal starting point in these cases.

          reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 28 Apr 2015 @ 10:14am

      Re:

      I should think that spelling out the exceptions and exemptions is better.


      I disagree. Statutes always lag behind technology. I'm of the opinion that the determination of Fair Use should be, at the very least, something that has the ability to be fluid and adaptable.

      For example, how do you carve out exceptions for time-shifting or format-shifting of digital products when most advanced technology of the day is the piano roll?

      reply to this | link to this | view in chronology ]

      • icon
        John Fenderson (profile), 28 Apr 2015 @ 10:25am

        Re: Re:

        What is or is not fair use doesn't have to be defined in terms of the technology. It can easily be defined in terms of technology-agnostic principles.

        reply to this | link to this | view in chronology ]

        • icon
          Gwiz (profile), 28 Apr 2015 @ 10:52am

          Re: Re: Re:

          It can easily be defined in terms of technology-agnostic principles.

          Maybe, but I'm not so sure about that.

          Take my example, how do you foresee a need for a exemption on format-shifting for personal use at a time when the ability to format-shift required a investment equal to a small country's GDP?

          Technology in the future could cause the need for exemptions that we can't even fathom today. 3d printing is heading down paths we might need exemptions for already. What if we develop something that transmits media directly into brainwaves or something like that?

          reply to this | link to this | view in chronology ]

          • icon
            Gwiz (profile), 28 Apr 2015 @ 11:13am

            Re: Re: Re: Re:

            Also, I would fear that such a list would inhibit innovation to a degree. Let's say I invent something completely new that should be considered Fair Use, but isn't covered on the list because no one thought of it before. It would automatically be considered as infringement and I would have no recourse until Congress gets around to updating the list (if ever, since lobbying dollars would come into play here). How is that beneficial to society?

            reply to this | link to this | view in chronology ]

          • icon
            John Fenderson (profile), 28 Apr 2015 @ 11:46am

            Re: Re: Re: Re:

            "how do you foresee a need for a exemption on format-shifting for personal use at a time when the ability to format-shift required a investment equal to a small country's GDP?"

            You don't need to. All you need to do is have any copying of copyrighted material be considered "fair use" as long as it isn't distributed by the person who has a legal copy.

            I'm honestly not seeing the problem relating to technology in use. Copyright is not defined in terms of technology, I see no reason why fair use exception need to be either.

            Fair use exceptions would be based on acceptable purposes, not on what technology is used to accomplish those purposes.

            reply to this | link to this | view in chronology ]

            • icon
              Gwiz (profile), 28 Apr 2015 @ 12:13pm

              Re: Re: Re: Re: Re:

              Copyright is not defined in terms of technology...

              Yes it is. Take a look through the statues and it's full of terms like "digital audio recording device" and "technological measure" and "semiconductor chip product" and many others.

              ...I see no reason why fair use exception need to be either.

              Same thing with some of the Fair Use common law rulings. Take a look at the Cablevison ruling, the whole thing revolves around the technology being used and very little to do with the principals of Fair Use since the concept of home taping via the VCR had already been established.

              reply to this | link to this | view in chronology ]

              • icon
                John Fenderson (profile), 28 Apr 2015 @ 1:09pm

                Re: Re: Re: Re: Re: Re:

                Perhaps I should clarify. By "copyright", I mean what is laid out in the Constitution. Existing copyright statutes are broken beyond belief. One of the ways they're broken is that they talk about specific technologies.

                Bringing in specific technologies was an intentional subterfuge in the first place, as different companies tried (and succeeded) in getting exceptions placed into law. We need to do away with all of that nonsense.

                reply to this | link to this | view in chronology ]

        • icon
          James Burkhardt (profile), 28 Apr 2015 @ 11:14am

          Re: Re: Re:

          But then you still have open ended 'principles' instead of clear, delineated exemptions. And that leaves the very uncertainty in civil society that OP is telling us is the problem.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Apr 2015 @ 10:24am

      Re:

      Do you like our current, unpredictable system?

      No.

      I should think that spelling out the exceptions and exemptions is better

      Agreed -- assuming those exceptions are broader and more permissive than what is currently permitted by case-law and the four-factor test, and moves the line to the far side of the gray area.

      Let's start with:

      - All educational use is fair, no questions asked, with no limitations
      - All personal use for things like backups, format-shifting, and enhanced accessibility is fair, regardless of the circumvention of DRM or other technological restrictions
      - All use for the purpose of review, criticism, analysis, reporting and opinion is fair, with no limitation on amount of work quoted except in the case a bad faith attempt to mask pure piracy, which must be proven by the rightsholder
      - All forms of remix, collage, sampling, and other repurposing are presumed transformative and fair, with the onus on the rightsholder to prove that they are derivative
      - All photography, video or recording of copyrighted works that are displayed on or visible/audible from public space is fair
      - The commercial nature of a use is irrelevant to a fair use determination
      - Any use that can be demonstrated within reasonable parameters to have no direct effect on the market for the original work is automatically fair

      Now we're "growing up"

      reply to this | link to this | view in chronology ]

      • icon
        LAB (profile), 28 Apr 2015 @ 10:48am

        Re: Re:

        "The commercial nature of a use is irrelevant to a fair use determination."

        That is one the most important elements. I am not sure I follow. if someone is making money off of another's creation is that not of significance?

        reply to this | link to this | view in chronology ]

        • icon
          Leigh Beadon (profile), 28 Apr 2015 @ 11:32am

          Re: Re: Re:

          if someone is making money off of another's creation is that not of significance?

          No. Why should it be?

          If what they are doing is preventing the original creator from making money, that is of significance. But why should the mere fact that they are making money themselves matter, unless the original creator just doesn't like seeing anyone else succeed? Sounds petty and childish to me.

          reply to this | link to this | view in chronology ]

          • icon
            John Fenderson (profile), 28 Apr 2015 @ 11:49am

            Re: Re: Re: Re:

            Sorry, Leigh, I managed to make a comment that is essentially identical to yours. Oh, for a delete button. :)

            reply to this | link to this | view in chronology ]

          • icon
            LAB (profile), 28 Apr 2015 @ 8:41pm

            Re: Re: Re: Re:

            The Fair use test includes an evaluation of whether the original creator's economic efforts are being stymied and perhaps I should have been more clear.
            I think many ignore the literal meaning of copyright is the "right" to "copy." The control of derivative works etc. Whether there is a philosophical disagreement with the enumerated rights given is personal but as the statute is written, if a creator doesn't want their art used by someone or for something they are intrinsically opposed, regardless if they are economically harmed is their right. I think a perfect example, the photographer who is against discrimination based on sexual orientation and their photo being is used in a political ad by a candidate opposing gay marriage. If fair use was only an analysis of whether the photographer was being prevented from making money, this outcome could happen all the time with no recourse for the photographer. Thankfully, this is not the case.

            reply to this | link to this | view in chronology ]

            • identicon
              cpt kangarooski, 28 Apr 2015 @ 9:38pm

              Re: Re: Re: Re: Re:

              I think a perfect example, the photographer who is against discrimination based on sexual orientation and their photo being is used in a political ad by a candidate opposing gay marriage.

              That could happen now. Let's say that the politician shows one of the photographer's photos celebrating same sex marriage, in order to attack it during the commercial. Purpose of the use is non commercial, for political purposes (might be seen as leaning just on the side of fair use); Nature of the work is creative; Amount and substantiality is great, though probably not too much detail is making it through in the ad (see e.g. Perfect 10); Effect on the market is likely nil. I could see a court finding the actual criticism of a work of art within a political ad, for campaign purposes (as opposed to mere background music, or something) to be fair use.

              Also, derivative works didn't appear until the mid 19th century, while copyright dates to the early 18th, so perhaps the literal meaning isn't what you think it is. In fact, the literal meaning certainly isn't what you think it is: It means the right to a manuscript (from which type would be set for printing). That is, the 'copy' in 'copyright' is a noun, not a verb. The OED is a valuable resource if you're interested in this sort of thing.

              reply to this | link to this | view in chronology ]

              • icon
                LAB (profile), 29 Apr 2015 @ 5:10pm

                Re: Re: Re: Re: Re: Re:

                I chose photograph specifically for the lack of transformative element. Generally, use of a photo is exactly as the photo was taken. I don't believe a court likely taking a photo and placing it within another photo or ad transformative. Courts have noted taking a photo and placing within a book as transformative. Bill Graham Archives v. Dorling Kindersley, Ltd.But I think this would be different. In any event, we can agree to disagree. I think Perfect 10 a bit different because it could be argued a thumbnail pic has less resolution and is "kinda" transformative, where as,in my example and yours, the photo would be unadulterated.

                reply to this | link to this | view in chronology ]

                • icon
                  Leigh Beadon (profile), 30 Apr 2015 @ 8:10am

                  Re: Re: Re: Re: Re: Re: Re:

                  The point Cpt. was making is not that the photo would likely find such a use fair in those circumstances -- simply that it's absolutely possible and, if they did, the photographer's moral objections to the politician would not be relevant.

                  You've proposed that a creator's ability to make moral decisions about who can use their work is one of the reasons that copyright is important. We are pushing back on that, because the truth is that copyright makes no actual room for such concerns. The ability to use copyright in that way is a side effect -- it's neither the purpose of the law nor the ideal outcome of the law.

                  If you truly believe that situations like this are the ones that make creator control worthwhile, then what you truly believe in are moral rights, not economic copyrights.

                  reply to this | link to this | view in chronology ]

            • icon
              John Fenderson (profile), 29 Apr 2015 @ 7:53am

              Re: Re: Re: Re: Re:

              "if a creator doesn't want their art used by someone or for something they are intrinsically opposed, regardless if they are economically harmed is their right."

              I strenuously disagree with this. One of the few good things about modern US copyright law is that "moral" rights aren't a part of it.

              reply to this | link to this | view in chronology ]

            • icon
              Leigh Beadon (profile), 29 Apr 2015 @ 8:58am

              Re: Re: Re: Re: Re:

              I must say, I completely disagree as well.

              I do not believe in "moral rights" for creators. And the US copyright system mostly excludes them as well, preferring to focus solely on the economic aspect, even though that makes America's adherence to the Berne Convention questionable -- which I approve of.

              I just do not see what purpose it serves for society to give people the right to control use of their work, via copyright, but on moral grounds. How is that a good thing for anyone? For every photographer trying to block an anti-gay-marriage politician from using their work, there's also a politician trying to block a watchdog group from using footage of their stump speeches to highlight their self-contradictions, and a corporation trying to block the exposure of its bad business practices and toxic culture. See, that knife cuts in a lot of directions, and most of them aint so nice.

              Copyright tends to work best when there such restrictions are impossible. For example, look at the compulsory license system for cover songs: a rightsholder can't stop you from covering their song as long as you pay the fixed prescribed royalty rate. It doesn't matter if they hate your style of music or think you are butchering it -- they get no say in the matter. That permissiveness has given us a rich history of genre-bending covers and reimaginings, and it's easy to find death metal bands covering golden oldies and crooners oldie-fying death metal songs. Our musical culture has, without a doubt, benefited hugely from this open exchange of songs between musicians. Would we be better off if musicians had the right to say "I don't want that band covering my song, but I'll let this one do it"?

              reply to this | link to this | view in chronology ]

            • icon
              Leigh Beadon (profile), 29 Apr 2015 @ 9:20am

              Re: Re: Re: Re: Re:

              Another important question to consider: can moral rights be transferrable? In most countries that have strong moral rights, they are not — nor are they alienable or waiveable. Because if this truly is a moral issue, would it make any sense for a creator to be able to sell the right to make moral decisions about their work to another party? If that's possible, then clearly it's not a moral issue at all — it's just another artificial means of control to be bartered for its economic value.

              But on the other hand, if moral rights aren't transferrable, then it reduces the value of your economic rights, and creates a lot of messy situations. I am going to be far, far less interested in purchasing a license to one of your photos -- or purchasing the rights to one of your photos entirely -- if I know that you, forever, will retain the right to interfere with my use of it. Generally this includes your right to demand attribution, and to prevent me from damaging the "integrity" of the work by modifying it, plus anything else where you can make the argument that my use is damaging your relationship to the work as its creator.

              Put simply: screw that.

              reply to this | link to this | view in chronology ]

              • icon
                LAB (profile), 29 Apr 2015 @ 4:59pm

                Re: Re: Re: Re: Re: Re:

                I chose a photograph specifically because the photographer is the rights holder and the photo was used without permission and there would be no transformative element. Moral rights do not figure into the equation because the politician did not license the use. I am not fond of moral rights and was not trying to imply after a sale the creator has any say in what is done with the creation. Interesting you brought up compulsory licensing because the license is contingent in not changing the song. So the compulsory license almost gives a moral bend because you don't have to get permission from the author but you can't really change it, in fact, in a way, controlling the song.

                reply to this | link to this | view in chronology ]

                • icon
                  Leigh Beadon (profile), 30 Apr 2015 @ 8:05am

                  Re: Re: Re: Re: Re: Re: Re:

                  No, but you're arguing that it's right and good for creators to make decisions about how to license their work based on their moral feelings about the use. Yes, that's possible under the current law — but I also think it's a bad thing, and essentially a misuse of copyright which is not supposed to be about moral concerns but about economics.

                  As for the compulsory licensing, yes, it prevents you from changing the song -- and that is a huge flaw in the system. It would work even better if people were able to get compulsory licenses for derivative works, alterations, remixes and everything else.

                  reply to this | link to this | view in chronology ]

                • icon
                  Leigh Beadon (profile), 30 Apr 2015 @ 8:12am

                  Re: Re: Re: Re: Re: Re: Re:

                  I am not fond of moral rights

                  But your initial argument here is that protecting the moral rights of creators -- such as not wanting a politician they disagree with to use their work -- is a key reason that we need copyright.

                  How can you say that, and then say you are not fond of moral rights? Do you mean that you don't think we should actually have a law to protect the thing you think is important, as long as creators are able to misuse another law to similar effect?

                  reply to this | link to this | view in chronology ]

        • icon
          John Fenderson (profile), 28 Apr 2015 @ 11:48am

          Re: Re: Re:

          "if someone is making money off of another's creation is that not of significance?"

          It is of no significance at all. Or shouldn't be.

          Now, if someone is interfering with the copyright holder's ability to make money off their creation, that's a different thing entirely.

          reply to this | link to this | view in chronology ]

          • identicon
            Pragmatic, 29 Apr 2015 @ 5:48am

            Re: Re: Re: Re:

            The trouble is, they see it as exactly the same thing, since the other person might be more successful at it. The smart thing to do would be to work with the other person to leverage his popularity. That way you make money off the guy who's making money off your creation.

            reply to this | link to this | view in chronology ]

            • icon
              John Fenderson (profile), 29 Apr 2015 @ 7:54am

              Re: Re: Re: Re: Re:

              "they see it as exactly the same thing, since the other person might be more successful at it."

              But surely it would be easy to show the huge logical flaw there...

              reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Apr 2015 @ 1:58am

        Re: Re:

        Ah, but that's a *fair and sensible* fair use policy.

        The maximalists don't want that, because they won't be able to bilk people with their schemes.

        I mean, sure format shifting should be allowed, especially ignoring DRM circumvention, but if we allowed it, how would the industry sell their material in those formats at inflated prices?

        What you've posted is a reasonable compromise. Unfortunately, that's why the maximalists on this site won't reply, or will disagree with it.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Apr 2015 @ 10:44am

      Re:

      Grow up

      History tells this is unlikely to occur.

      reply to this | link to this | view in chronology ]

    • identicon
      cpt kangarooski, 28 Apr 2015 @ 10:46am

      Re:

      Do you like our current, unpredictable system? I don't. I should think that spelling out the exceptions and exemptions is better. Might even lower transaction costs (for you utility lovers)

      Sounds fine to me so long as we keep the current, unpredictable system too. I can think of quite a few statutory exceptions I'd love to see.

      reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 28 Apr 2015 @ 11:10am

      Re:

      On the contrary, his point is that it shouldn't be four open-ended factors like we have. Do you like our current, unpredictable system? I don't. I should think that spelling out the exceptions and exemptions is better. Might even lower transaction costs (for you utility lovers). Regardless, I think it's ridiculous to claim that he's vying for "out and out censorship." Grow up.


      not sure why examptions is now listed as 'exemptions and expemptions'. but thats beside the point.

      Funny you should mention spelling out exemptions. We tried that one in the copyright act. Several of those exemptions are regularly challenged (such as the educational exemption). A good example is the first sale doctrine:

      § 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord
      This is the basis of the first sale doctrine. And yet, repeatedly Companies find legal theories to get around "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." This section of law is pretty long. But it took repeated testing by the courts to determine what this section means. Meaning this exception would be just as 'unpredictable' in a civil law society.

      The style of fair use suggested for TPP (according to the documents in question) is not the open ended four factor test, but the highly restrictive, problematic 3 step Burne Convention test whose only use is to limit when fair use can be applied. Its not open ended, and it spells out the basic litmus for exemptions, while leaving the actual expemptions and their implementations up the the signatory countries. So tell me again how we are pushing for the treaty to include an open ended four factor test.

      reply to this | link to this | view in chronology ]

    • icon
      Coyne Tibbets (profile), 28 Apr 2015 @ 9:25pm

      Re:

      I should think that spelling out the exceptions and exemptions is better.


      It depends on how those exemptions are spelled out. In actual practice, in this country right now, the exceptions aren't in the law, but the courts have a reasonably clear set of principles to apply.

      What concerns me about Manne's exceptions, more properly the exceptions being created by big content, is that the exceptions will be preclusive. Such as, in geometry: Anything square is exempt but never anything rectangular (squares are rectangles, so the exemption for squares is meaningless in this construction).

      E.g., pretend rules that rule against everything and pretend exceptions that except nothing.

      I don't see the argument as one between big content, trying to protect their interests in content, and everyone else trying to protect their interest in free speech.

      It looks more to me like big content is trying to establish rules that will make it the official only source for content; that will bar all competitive content sources. Elimination of competition is nothing new, and big companies of any flavor hate it (whatever they might say in Congress about free markets).

      reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 28 Apr 2015 @ 10:27am

    Promoting

    If you're promoting Fair Use without Censorship, you're promoting out and out Democracy.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Apr 2015 @ 2:41pm

    Thousands, maybe millions of videos were taken down from YouTube to censor critics.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Shop Now: I Invented Email
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.