Legal Fixation

CCIA and fair use redux

Over at CNet today we find a piece restating the CCIA's stance on the copyright warnings attached to DVDs, sport broadcasts, and so on. I covered this ground at length previously, but it's worth a brief review.

The author, Maura Corbett, is a partner at D.C. public relations firm Qorvis, and a spokesperson for Digital Freedom. In the course of arguing that copyright warnings are "at best misleading, and, at worst, flat-out wrong," Ms. Corbett provides this example:

"Warnings attached to movies, sports broadcasts and other media often provide wildly misleading information about consumer rights under copyright law. For example, warnings on many Universal DVDs state, in part, that 'any unauthorized exhibition, distribution or copying of this film or any part thereof (including soundtrack) is an infringement of the relevant copyright and will subject the infringer to severe civil and criminal penalties.' This statement is simply untrue--the federal copyright statutes specifically allow unauthorized reproduction for criticism, commentary and other purposes."

With all due respect to Ms. Corbett, she's overstating the case. It's important to remember that fair use is an affirmative defense to infringement. An affirmative defense is raised by the defendant in response to the plaintiff's infringement complaint. As Professor Patry puts it, "the defendant says, 'yes I copied, but I get off the hook because my use is transformative, etc.'" Successful application of a fair use defense does not negate the fact that the defendant copied without authorization, nor does it negate the fact that unauthorized copying is, barring the defense (fair use or otherwise), infringement. The hook exists regardless.

As an (admittedly imperfect) analogy, consider speeding. I expect there are many circumstances where a court might find the accused speeder had a valid defense to the charge of speeding -- rushing a pregnant wife to the hospital, let's say. For that matter, a jurisdiction might even include language in the relevant statute specifying the affirmative defenses to a charge of speeding (though I'm not aware of any offhand, hence the imperfection). With that in mind, if I say "exceeding the speed limit is a violation of traffic laws", am I being wildly misleading or flat-out wrong? Certainly not. The existence of such defenses does nothing to change the fact that speeding is a violation of the law. We don't expect speed limit signs to include a laundry list of all possible circumstances in which the law might not be enforced (and if we did, I don't think even the new Clearview font would be helpful), and we shouldn't expect the same from copyright warnings.

I'm open to the CCIA's arguments here. Copyright warnings can certainly be more aggressive than necessary. This isn't a surprise given the general stance of content owners and creators these days. I also understand that the CCIA has attorneys who are going to parse the life out of words like "any" and "will". But let's not mislead the consuming public, who are after all the people the CCIA are trying to protect. Speeding is against the law, unless it's not, and unauthorized use of copyrighted content is infringement, unless it's not.

Copyright warnings tell the consumer "here's the hook, it's very sharp". They shouldn't have to tell the consumer what to do if he bites.

posted by Matthew Saunders @ 1:25 PM