Legal Fixation

CCIA's fair use push

The blog world was all aflutter earlier this week when the Computer and Communications Industry Association - members include Microsoft and Google - announced it had filed a complaint with the FTC alleging that the NFL, MLB, Dreamworks, Harcourt and Penguin are overstating copyright law in the warning notices included in their various properties. For example, the CCIA takes exception to this language from the MLB:

"This copyrighted telecast is presented by authority of the Office of the Commissioner of Baseball. It may not be reproduced or retransmitted in any form, and the accounts and descriptions of this game may not be disseminated, without express written consent."

By contrast, the CCIA praises publisher John Wiley & Sons for its warning:

"No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Section 107 or 108 of the United States Copyright Act, without either the prior written permission of the Publisher, or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center"

Also cited positively is the warning included in Nimmer On Copyright, which includes the phrase "Permission to copy material exceeding fair use, 17 U.S.C. ß 107, may be licensed for a fee."

In short, the CCIA wants these warnings to include language that tempers the strict prohibitions on unauthorized use by the consumer, preferably by inclusion of some reference to fair use. An admirable goal, I suppose, but how much of a difference would this really make? I expect your average consumer doesn't know what Section 107 or 108 are, or where they are, and even were they to find and read the text of those sections, I imagine they won't be any better informed.

In fact, here's the copyright statement as posted on the CCIA's Defend Fair Use website:

"We recognize that copyright law guarantees that you, as a member of the public, have certain legal rights. You may copy, distribute, prepare derivative works, reproduce, introduce into an electronic retrieval system, perform, and transmit portions of this publication provided that such use constitutes "fair use" under copyright law, or is otherwise permitted by applicable law."

Permission to use our copyrighted works in a manner that exceeds fair use or other uses permitted by law may be obtained or licensed from the Computer & Communications Industry Association, 900 Seventeenth Street NW, Eleventh Floor, Washington DC, 20006."

I like it. It focuses on the positive. But what if I don't know what fair use is? I guess I follow that "fair use" link. And where does that link take me? To a plain text version of Section 107, including historical revision notes. Well heck, now it's perfectly clear!

Fair use is a complicated, fact specific matter. You can break it down into helpful categories - criticism! commentary! education! - but each requires an explanation all its own. And ultimately, it's up to the courts, not the consumer, to decide whether a use falls into one of those categories. Furthermore, as Joe Gratz notes, consumers probably glaze up when they hear or see those warnings and go ahead and do what they want to do anyway.

I would certainly agree that some of the cited warnings overstate their case. But if successful, all this effort will achieve is getting the content owners to admit fair use exists. Without more, the warning might as well say "you can't use this material without our permission, except when you can." Or better yet...

"This copyrighted telecast is presented by authority of the Office of the Commissioner of Baseball. It may not be reproduced or retransmitted in any form, and the accounts and descriptions of this game may not be disseminated, without express written consent, unless such reproduction, retransmission or dissemination is a fair use. We can't define fair use for you here because this warning would then take longer than the game, which already takes long enough thank you very much. Go read Section 107 of the Copyright Act, it explains it all... go ahead, we'll wait... Got it? Okay, so that's what you can do without our permission. Good luck!"

See also Patrick Ross' comments at IPcentral.

posted by Matthew Saunders @ 9:34 AM