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What is Fair Use in the Digital Age?
Posted by
Zonk
on Wed Jan 16, 2008 06:29 PM
from the fair's-fair dept.
from the fair's-fair dept.
Hugh Pickens writes "General counsel for NBC Rick Cotton and Tim Wu, professor at Columbia Law school, continue their debate about copyright issues and technology on Saul Hansell's blog at the New York Times discussing Fair Use of commercial music and video as the raw materials for new creations. Cotton says that content protection on the broadband internet is really not a debate about fair use The fact that users can 'take three or four movies and splice together their favorite action scenes and post them online does not mean that these uses are fair. There needs to be something more — something that truly injects some degree of original contribution from the maker other than just the assembly of unchanged copies of different copyrighted works.' Wu's position is that 'it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use. This simple concept would bring much clarity to the problems of secondary authorship on the web.' This is a continuation of the previous discussion on copy protection."
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Is Copy Protection Needed or Futile? 392 comments
Hugh Pickens writes "Columnist Saul Hansell is hosting a debate about copyright issues and technology on his blog at the New York Times . On one side Rick Cotton, the general counsel of NBC Universal, says that anyone who is intellectually honest must 'acknowledge, confront and speak to the tidal wave of unlawful, wholesale reproduction and distribution of copyrighted content that is currently occurring in the digital world' and that we should be 'identify workable, flexible and effective approaches that reduce piracy without being intrusive and that fully respect other interests such as privacy and fair use.' Tim Wu, a professor at Columbia Law School, responds that 'locks will be broken, and so a business model that depends on locking is very vulnerable' adding that locks may form a part of certain successful business models but 'too much reliance on locking can seriously backfire.' Wu and Cotton will respond to each other and to comments by readers today." As for the man on the street, Panaqqa wrote us with word that the Question Copyright site has posted an interesting video of ordinary people explaining why they think copyright exists. It's pretty clear that most people don't understand it at all.
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Fair use is very simple (Score:5, Insightful)
Re:Fair use is very simple (Score:5, Insightful)
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The majority of the anime mashup music videos are crap and don't really "inject original contribution" but there are some that are quite well done. [youtube.com] The problem with having a requirement of "something that truly injects some degree of original contribution" is that what qualifies is entirely subjective. What is a subtle but relevant addition to some kid making a video might just be worthless crap to a sixty year old judge. Artistic tastes ar
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What about things INTENDED to be part of something (Score:5, Insightful)
Same for stock photography and stock video providers -- their GOAL is to provide raw material as input into a larger work. They spend a lot of time and money shooting and editing stock. If you claim any use of their work is fair use (it's always incorporated into a larger whole, and often transformed along the way) then stock photographers and videographers can't get paid (all use is fair use--why pay for it) and might just stop producing stock material. It's a huge benefit to illustrators and designers to have stock photography and video available. (As an aside, some stock photographers create really good work [photographersdirect.com])
How does he address the fact that some people design work with the hopes of being paid by producers who will assemble it into a larger whole, and that producers are glad to have designer's work available?
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Re:Fair use is very simple (Score:5, Informative)
First-sale is really quite natural. Copyrights are placed on a non-scarce resource to make them scarce. It would be absolutely ludicrous to purchase a shovel and not be able to sell it for whatever someone else is willing to pay for it. If copyright wants to push IP to equal footing (no pun intended) of shovels then you should be able to sell your iTune or CD for whatever anyone is willing to pay.
The illusion that you can't/shouldn't/must not resell it is Big Media (TM) overencroaching on your rights. Fair use is but only one victim of DRM and first-sale is another.
I could make a similar argument against software that can be licensed only once (Steam [wikipedia.org]: I'm looking at you!). MS products are another example of this.
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Also please n.b. that with the exception of downloaded music, ordinary consumers don't license music at all. The stupid software industry has just managed to screw up how people think of their rights in connection with works and the scope of protection the works enjoy.
I'm not confused but the headline is! (Score:5, Interesting)
Unfortunately, the sheep are easily swayed over time (the frog/boiling water deal I suppose). I'm not fooled and hopefully they won't be able to fool intelligent judges either. They might buy over Congress but someone needs to put their foot down and stick up for us.
I'm tired of stories like this
Not just the RIAA (Score:4, Insightful)
I agree though that the digital age really makes no difference. The real change has been a shift is society's values. Me, me, me!
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Maybe. It's certainly transformative. Some mash-ups may use only portions of the works in question, further bolstering their position. As always, you can't make a blanket statement as to what is or isn't a fair use. Each specific case must be considered in light of its own circum
Re:I'm not confused but the headline is! (Score:4, Insightful)
Books begat films, character merchandising, giant fan guides, remix videos, fan art and other
forms of secondary authorship that simply didn't exist 100 years ago.
100 years ago we didn't have Disney fucking with Copyright then (the Mickey Mouse and Sonny Bono Protection Acts [wikipedia.org] only came about in 1976!) So for us to even bring that shit up in this modern discussion is nothing short of ridiculous.
Let's face the facts here... Copyright has been extended to an unreasonable point so that nothing will ever enter the Public Domain so if anything is different in the "Digital Age" it's the fact that we're more fucked than ever before.
Boo.
Parent
Someone didn't read the article... (Score:3, Interesting)
Someone didn't read the article :-) To quote Rick Cotton (the bad guy):
First of all, as Mr. Cotton duly notes, and as we often hear here on /., there is no such thing as a fa
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Self defense is a Right, and so is fair use. I'm not sure where this fallacy originated, but it is ridiculous. Actually, I know where it originated. It originated with the RIAA.
So why are
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Re:Someone didn't read the article... (Score:4, Insightful)
Sorry to reply again, but this [eff.org] might be of interest:
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If you plead self-defense, you are pleading that you DID murder the person, but you shouldn't be punished for it because there were exonerating circumstances (namely that person was a threat to your own safety).
Fair use is similar. You argue that you DID copy the material without the owner's permission, but that there are exonerating circumstances that make it acceptable.
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Now, as to the legal concept of being allowed to plead in the alternative, you'll never see me doing that. It's a disgusting practice that I have never yet seen an honorable purpose for.
Then again, I have a problem with plea bargaining in general, too, and only 2% of cases reach trial. So obviously my views are not well supprted in the judicial community.
Ironically, I was reading the origins of the adver [oup.com]
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Kentucky's constitution states: "All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety, happiness and the protection of property. For the advancement of these ends, they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in su
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First, fair use is simply the principle that where an otherwise-infringing act is nevertheless fair, and in line with the overall goals of copyright, it is not infringing. I cannot imagine for the life of me what we would need to change about that.
Second, fair use has never been "hashed out." It's an amazingly vague bit of law and it evolves all the time in response to new developments in society.
If you think that there should be some other exceptions to copyright (such as a blanket pers
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No citation, and things may well have changed. Anyone have new info?
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That's also the reason Blockbuster did that "no late fees, you bought it" crap recently, it was cheaper than sending people to collections.
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Re:I'm not confused but the headline is! (Score:5, Insightful)
From the article:While his point is that fair use is more of a privilege than a right, I think there's a much different interpretation of what he's saying that is important to consider.
He's absolutely correct that fair use isn't a right, it's an exception. But it's an exception to the rights of the copyright holder. And this distinction is important because it underscores how entertainment companies misrepresent copyright. Rather than copyright defining the few excepted uses allowed to people/entities who don't hold the copyright, it actually defines the few rights granted exclusively to the copyright holder.
And this is an important observation about the intent of copyright. Namely, that anything not explicitly granted to the copyright holder is permissible rather than forbidden. The big content producers would like copyright to be a limited set of things that we (those not producing the content) are allowed to do with their content, which they believe they own. But when defending our rights, it's important to remember that copyright is actually a limited set of things that we're not allowed to do and that content cannot be owned, only protected. And this is the principle that should be applied whenever something falls outside of what is explicitly stated in the Copyright Act...that everything not covered is allowed rather than forbidden.
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Even more important to note is that there are no rights, only privileges. Guantanamo Bay proves this: in the view of the US Government, even the protections of the Constitution are there only insofar as the President feels like extending them. More broadly, if 'self defense' is a defense, or capital punishment is permitted, then there is clearly no inalienable right to life, even in legal fiction. (Outside of legal fiction, of course, you've always been able to smash someone over the head with a rock.)
My p
Fair use (Score:3, Insightful)
It's a yin and yang - downloading or fiddling around with videos or music may cost some sales, but it can also generate new fans, who will purchase when they otherwise wouldn't. So what if splicing 3 or 4 clips together doesn't have much artistic merit? That's a purely subjective call, and in this age, it seems that computer software is the popular artistic tool of choice.
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> yourself or with no intention of profiting from it, but bad if you attempt to sell it,
> whether through burnt DVDs in the market or using clips from films/pictures/music to bring
> people to your revenue generating website, and so on.
And this pretty much used to be the police attitude to copying CD's - arrest the guys selling out the back of a van but leave joe public alone. This was a larg
Answer.. (Score:2)
So I guess fair use re-defined for today would be asking yourself the question "Could you get into a lawsuit over this piece of IP?". I think that copyright is pretty difficult to judge in the first place.
For example, this comment I am writing. If someone re-posts it, should I be able to sue them for infringing my copyright for re-di
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The companies have money so they can take what they want without getting the million dollar lawsuit from Bob for taking his little music tune and putting it in their car advert. So I guess fair use re-defined for today would be asking yourself the question "Could you get into a lawsuit over this piece of IP?". I think that copyright is pretty difficult to judge in the first place. For example, this comment I am writing. If someone re-posts it, should I be able to sue them for infringing my copyright for re-distributing my work. I gave you permission to read it only! When does a few lines of text become big enough to be said "Ok taking all this would be copyright infringement"? There is also a personal gripe I have which is the copyright blackhole. A game I really liked went bankrupt and all the code went down the copyright drain. No one owns it, but it is illegal to re-license, re-distribute, whatever because I am not the author. The author can't legally give it to me either because although he has the source, he doesn't own the IP to source, no one does.
Infringement or reference?
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There should be some sort of IP "salvage rights" or preferably lapse into the public domain. Since the IP is no longer owned, it makes sense that anyone should be able to use and re-use it at will.
"adding value" is nebulous because value is (Score:2)
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Fair use is ..... (Score:2)
"work that adds to the value of the original" (Score:3, Interesting)
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Exactly.
1) Sometimes "removing" content is adding value! (i.e. Star Wars 1 fan edits with less Jar-Jar)
2) What determines "value"? Value is _arbitrary_ between people.
By His Own Example (Score:2)
fair use is for the people (Score:2)
There is no need what so ever to clarify 'fair use' any further than it already written in law, especially not when the 'clarification' proposed is clearly only to reduce the rights of the very people they were introduced to protect.
AMV = Perfect examples of fair use (Score:3, Insightful)
And last, but not least, AMV Hell 3: The Motion Picture [youtube.com] and AMV Hell 4: The last one [youtube.com]. Some of the clips there got me laughing for hours.
What would be of Entertainment and creativity online if all the music and anime producers sued the AMV makers for copyright infringement?
Here's Where Cotton is Right, Wu Wrong (Score:2)
Beyond that, Cotton is mostly wrong.
Wu's "added value" position is wrong. Who is to determine if value has been added or eliminated? For that matter, what is "value"? If I copy a po
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If the courts can do that, how, then, can they decide how to apportion the revenue from the altered copy?
My fundamental problem with the notion of added value is that it is an "in the eye of the beholder", "he says, she says", kind of opinion. In practical terms, no one is likely to tell a court that his altered copy removes value.
Tim Wu's position is just plain wrong. (Score:2)
> No, that is not what fair use is. Fair Use [wikipedia.org] is that exception written into copyright law since 1976 that allows people to quote and/or copy small parts of a copyrighted work without permission or payment for certain specific reasons. If he doesn't even know what the term means, why should we care wha
No problem with Fair Use or Copyright Protection (Score:2)
Clarify? (Score:3, Insightful)
And who gets to determine what "adds value"? Here's a random example I just came across today that rides the line: the full Steve Jobs Keynote vs. this 60 second recap:
http://www.youtube.com/watch?v=Yz1-cPx0cIk [youtube.com]
That can both substitute for the original, and yet I think adds value. Not just by being short and informative, but by satirizing and commenting on the effects of 89 minutes of fluff marketing. Is it fair use?
Cheers.
My deal with the RIAA/MPAA (Score:4, Interesting)
Nothing that big media produces is entirely original. Apart from the fact that they use a public domain language (English) with slang and common metaphors not written by them, they of course are inspired by earlier work. Bands like Oasis wouldn't exist without The Beatles, yet they pay them no fees. The Matrix is just an updated version of Descart's "I think therefore I am" idea.
Either they give something back or they start paying.
Re:debate bias? Bias? Here's a form of bias? (Score:3, Interesting)
The same that applied in pre-digital, digital ages:
Do not fold, spindle, or mutilate. There. Now, transferring that age to this age, add: "Don't digitize or compress; decompression not guaranteed" the membership.
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