What is Fair Use in the Digital Age? 199
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."
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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The MPAA and RIAA have twisted what copyrights were designed to do into some title of every last nano second of every thing.
Like the above poster said, "If you make money on it, it's not fair use, if you don't, it is.
Cheers
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.
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It won't be popular here, but it's a perfectly reasonable position for the owner of a work to take that they are selling you the right to play their music, off of the CD, for your personal use only. It may not be a workable position in the ethos of today's market, but it's a position consistent with the rest of property and
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making a film and selling it without paying for the soundtrack is compeltely different.
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
Are reasonable blanket statements really so hard? (Score:2)
As always, you can't make a blanket statement as to what is or isn't a fair use.
I'm not so sure. The copyright bargain is pretty simple in principle, and it's also pretty simple in principle to establish what (ethically speaking) we might regard as fair use.
For example, I might make a blanket statement that an individual who has a legitimately obtained copy of a work should be free to use that work however they see fit in private for their own benefit, regardless of any literal copying or transformative editing involved.
I might also make a blanket statement that it is reasonable
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.
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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Let us also remember that the Government cannot grant us Rights. All of us have Righ
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I won't comment on the legal portion of your post, since I'm not well-informed in that area. This part, however, I must take issue with. The government can indeed grant rights - e.g., copyright! What you're talking about are natural rights (or "certain inalienable rights").
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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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Just because something works as an affirmative defense in court does not mean that it is not a Right.
I have the Right to defend myself.
And I have the Right to fair use of copyrighted works.
You should also note that lawyers in this day and age are allowed to plead in the alternative. This means that a lawyer could argue both that his client didn't commit the crime, and that his client should be acquitted because he was acting in self defense. Whether or not
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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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It's clear that you and I have very different opinions on the proper role of government.
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Some have argued otherwise for the United States, in that the second amendment provides for a militia counter to the govenrment, but I would argue that any rebellion is by definition an illegitimate use of force.
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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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There's no such thing, and there never can be. Society is nothing more than a mirror of the individuals within it. A government cannot survive without the population supporting it.
I'm not going to go into the founding documents of the United States, because they're not really relevant to this issue. But my opinion is (and always has been) that they're essentially rubbish in all
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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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By change, I meant that what we would traditionally consider fair use should probably be expanded. That's not really changing the doctrine itself, just our understanding of what falls into the category, I suppose.
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We really don't traditionally consider anything to be a fair use. Each specific use -- not type of use, but each specific _act_ -- is considered on its own merits. There have been parodies and satires that were not fair uses, quoting in news reporting that was unfair, etc.
If you want to make certain classes of use non infringing, you want statutory exceptions. You don't want to screw around with fair use.
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I said this: http://slashdot.org/comments.pl?sid=419084&cid=22072294 [slashdot.org] in another thread, towards the end I say something like "when something is ruled fair use it's still infringing because it's an affirmative defense, but it's unpunishable". But, from one of your posts in this thread I think you said when something is judged fair use that it's actually found non infringing. Is this as in totally legit, not just infringing-but-ok? I'd appreciate if it you could set me straight on that post so I'
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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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Back in the day, I worked for a "big video store" (putting myself through school) - this was strictly VHS days. For most movies, think hard... ever notice they hit the rental shelves before you could buy it at Target or Wal-Mart? That's because of the "exorbitant amount for their films" (and $100 is about right). This is how the studios ensured they made a good chunk of cash off of VHS even though there was a lot of rental (and never mind that eventually the big rental hou
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Actually, I read a few years back (back in the days of VHS!) that rental stores pay an exorbitant amount for their films, around the realms of $100 or so.
This is correct. When movies were new releases, they were quite expensive.
That gives them the licence to rent the films out, something forbidden for regular licensees
Not true. You could buy a movie and rent it out to whomever you wished, for whatever price you wished. You require no special license to lend your property, a legitimate copy of a movie, to someone else, profit being the motive or not.
(or so the FBI warning tells me).
Where does the FBI warning say anything about loaning out individual legitimate copies of a movie? Read it again. Special licenses are required for things like public performance.
No citation, and things may well have changed. Anyone have new info?
Nothing new, but
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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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Huh? Copyright does no such thing - copyright defines the rights of the copyhol
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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
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(IANAL, but I think that's enough to CYA
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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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Just because you do it for profit, or it affects the economic value of the work used doesn't mean it isn't fair use. You need to look at the totality of the circumstances. The current test does a decent job of this.
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I probably wasn't quite clear enough
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If something is wrong to do for free, it's wrong to do for profit as well.
Additionally, "fair use" is moronic. What I own is mine, and what you owe is yours. What I do with what I own, so long as it doesn't affect anyone, is no business of anyone. It is not the governments' job to guarantee a market for a business by outlawing normal use (ie copying and resale) of certain pieces of personal property.
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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
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My own view (feel free to take it or leave it) is that making a copy for yourself is *comparitively* victimless. Trying to make a buck from it suddenly gives more credence to the 'lost sales' mantra frequently trotted out. Car analogy - I walk down the street & find a magic box that creates perfect copies, and use it to make a new Ford, which I take. Wasn't planning on buying one, but take the copy as no one loses their Ford as a re
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But if you download a movie without paying for admission, or rental, aren't you profiting from it?
No. "Profit" in the legal sense is about material gain. Avoiding costs is not a material gain. If it was, General Motors could claim billions in "profits" by avoiding regulatory fines by not selling cars that violate federal safety regulations. e.g. "We had profits of $27 billion this year by not building and selling 100,000 cardboard Chevy Suburbans!" Sounds ridiculous, right?
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No. "Profit" in the legal sense is about material gain. Avoiding costs is not a material gain. If it was, General Motors could claim billions in "profits" by avoiding regulatory fines by not selling cars that violate federal safety regulations. e.g. "We had profits of $27 billion this year by not building and selling 100,000 cardboard Chevy Suburbans!" Sounds ridiculous, right?
Well. I'd argue that you materially gain - by gaining material. It's not about avoiding costs, it's about actually obtaining something without paying for it. Following your logic, I could steal someone's car and claim that I was "avoiding the cost" of buying one.
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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.
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That said, if nobody owns it, you can't break copyright law because no one owns it.
Copyright black hole is an illusion.
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(interesting punctuation idea...)
One problem with "if the company is gone, you can copy it" is if someone else buys the company from the original owners. Thus, even though there is nobody to sue you now, doesn't mean that there will never be anybody that could sue you.
(My business law knowledge is almost nil, so it should be easy to correct me here)
Certainly, once a company is gone, their works should be in public domain.
Very real... (Score:2)
If Valve went away, who is going to let me download the Steam games I've purchased, but not installed? Who's going to unlock those games?
There have been games which have pretty much completely disappeared, due to their own copy protection not being cracked while the company was still around, and requiring obsolete hardware/software (a real, physical floppy drive, the original floppy, and DOS) in order to run. Even if they are legally public
"adding value" is nebulous because value is (Score:2)
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Your view isn't just overly narrow (in fact it is also broader in some places than what is currently allowed), but is instead completely unrelated to what fair use currently is.
There is no master list of fair and unfair uses. All the law says is that fair uses are lawful, and that a court can look at various circumstances regardi
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All the law says is that fair uses are lawful
Unfortunately, as I'm sure you're aware, that isn't quite true in many places today.
The law in many places now says that a fair use does not infringe copyright, which isn't the same thing if other laws are also relevant.
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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.
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We could say the same re-releases of the same movie on a new format by corporations. The truth is, copyrights and "intellectual property" is a bunch of bullshit and needs to be strictly regulated.
Real property was designed to solve problems of distrbution, scarcity, and living together in peace. Intellectual property is dangerous because in order to protect it, invasion of privacy, civil liberties and curtailment of freedom is necessary to 'ma
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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No.
If [commercial software company] takes the source code from a GPL licensed project, adds a few lines of their own, can they call it "added value" and sell it under a (closed source) commercial license ?
Nope, can't do that either.
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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.
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Which also contradicts his position that the debate about "content protection" is not a debate about fair use. If I can't even watch a DVD I bought without cracking the DRM, that would suggest that you cannot imply anything about fair use from the ability to copy and manipulate data. Therefore, anything which restricts my ability to copy and manipulate data may also be restricting my fair u
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)
value (Score:2)
I don't think that defining a subjective term by the use of another subjective term clarifies anything.
This is, and will remain, a thorny issues because, whetever the long-term interests of both parties and their understanding thereof, the short-term interests collide. Given the prevalence of piracy, I'm not sure even a crystal clear definition will solve the problem.
It seems to me that the definition of
Phantom Edit? (Score:2)
Favorite Action Scenes (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 fair use logic, I cannot use, it is illegal ... (Score:2)
for as long as I want, wherever I want, in any personal (not public) way that I
want, on any type of my personal products/media I want.
At any point, I attempt to use any IPR protected product for (non educational)
personal real/virtual value gain (bar, theater
the owner and/or accept binding arbitration as too the appropriate compensations
percentage value of the IPR product added to my innovative, cre
NBC lawyers' definition of Fair Use (Score:2)
Hmm (Score:2)
Just putting myself on the other side. If I'd created a film, recorded an album etc - I'd want to sell it and make a bit of cash back (if only to cover my costs). If somebody downloaded it I'd be a bit pissed off. If I saw it sat on YouTube with google making money off the adverts around it, I'd be really pissed off.
On the flip side I hate the DRM laden 'legit' digital media and I'd have no objectio
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.
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An "information wants to be free" is somehow more sane or logical than "you need to pay us when you hear that song."?
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An "information wants to be free" is somehow more sane or logical than "you need to pay us when you hear that song."?
What is this "Information Wants To Be Free" bullshit anyways?
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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Bias? Simple! (Score:2)
Certainly more than it ever was historically...
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wget -r http://minicity.com -O
or a loop:
while [1]; do
wget http://http://slashdotcity.myminicity.com/ -O
done
and get many people to do that.
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The composite work is legal if, and only if, the copyright holders of each component specifically allow you to use it in this way. A technique that has been used to great effect to enable people like RedHat etc. to put together a large collection of components and release a composite work commonly called a 'Linux distribution'. Because that is how the copyright holders of the original co