Congress Must Make Clear Copyright Laws 179
WSJdpatton writes "WSJ's Walt Mossberg takes a look at what's wrong with the DMCA and DRM given the recent lawsuit brought against Google's YouTube by media giant Viacom — 'Under fair use, as most nonlawyers have understood it, you could quote this sentence in another publication without permission, though you'd need the permission of the newspaper to reprint the entire column or a large part of it. A two-minute portion of a 30-minute TV show seems like the same thing to me. But why should I have to guess about that? What consumers need is real clarity on the whole issue of what is or isn't permissible use of the digital content they have legally obtained. And that can come only from Congress. Congress is the real villain here, for having failed to pass a modern copyright law that protects average consumers, not just big content companies.'"
A non-lawyer indeed (Score:5, Informative)
I'm afraid that our friend over at WSJ misunderstands the law a bit. The length or exact portion of the copyrighted material does not matter. In fact, the key issues that a judge looks at is if the use is necessary to the contested work, and if the contested work shows enough original thought to be considered a separate entity. Direct copying of even a small snippet is very much illegal if there is no larger work around it.
For example, if I had only quoted that paragraph above and smacked the "submit" button, I'd be guilty of copyright infringement. I'd also be looked upon as a tool by the Slashdot community as a whole. But by including this commentary about the quoted work, I'm creating a greater work that requires the fair use of someone else's work. And Slashdotters get to decide whether I'm a tool or not based on the opinions I state in the larger work rather than some silly action.
It's the same for videos. Taking a 2 minute clip and copying it verbatim is pretty much copyright infringement. Using that same clip for purposes of video or text commentary, on the other hand, would be perfectly acceptable "fair use". Similarly, creating a fan trailer, a movie review video, or generally commenting on the state of whatever would also allow you to make fair use of the video clip.
However, one does need to keep in mind that a judge will consider whether the entire clip is necessary or not. If you put up the entire interview of Bill Gates on the Daily Show just to comment on how funny the cat's name portion was, you're still guilty of copyright infringement. A judge would be likely to find that you were using simplistic commentary to try and cover over your infringement, and that showing only the part dealing with the cat incident would have been sufficient to make your point.
Now, with that out of the way, I'd like to point out that the DMCA is actually a positive in this situation. (I know, I know. How could I defend Slashdot's favorite whipping boy?) The Safe Harbor and common-carrier provisions of the law ensure that sites like Youtube can exist. Without those provisions, Viacom would have a much stronger case against Youtube.
Standard Disclaimer: I am not a lawyer, only an individual with an interest in the law.
Re:What about "entire works" or entire "mini-works (Score:3, Informative)
Apply common sense. Is it necessary for you to show the entire ad? If it is, then you're probably in the clear. Obviously it's a case by case situation, but genericly, you'd be in the clear.
We already have a very good, precise law (Score:3, Informative)
Re:A non-lawyer indeed (Score:5, Informative)
Adding value to the original work will help on a fair use claim, but it's not essential. Heck, in the Sony Betamax decision (1984), the Supreme Court thought that time-shifting--copying an entire show--was a fair use. You're sure not adding anything there. But, a magazine's articles that included excerpts of a book by Gerald Ford about the Nixon Presidency was not a fair use.
Re:My content, my rules (Score:5, Informative)
Compare to a natural right; you cannot sell or purchase the right to free speech. Similarly, the government cannot take it away because it does not grant it.
The Constituion is pretty clear. It grants the Congress the ability to create copyright. Congress grants you that privilege, in exchange for it being public sometime later.
Re:Riddle me this... (Score:5, Informative)
Now, to answer your question. (To the best of my ability.) And that answer is in the form of a question, "Why did she pick the NFL Legal clip in specific?"
If you consider that question in detail, it should become obvious that the Legal clip shouldn't be copyrightable material. After all, it's a statement of fact. Why can't we share statements of fact? The answer is that we can freely share statements of fact. Copyrights are only provided for creative works. An impassioned speech given on the events of the Revolutionary War would be considered a creative work that derives from factual events. So it's copyrightable, though anyone is free to relate those facts in their own words. On the other hand, a statement of fact document in a legal case is pure fact, and is not a copyrightable work. (Not that such a limitation has stopped lawyers from trying to claim it's creative.)
So looked at as a whole, Ms. Seltzer's act was a very calculated maneuver intended to expose the problems with Viacom's position while simultaneuosly ensuring minimal legal liability. That's why she's the law professor, and I'm just a guy on Slashdot.