Fair use vs. unfair use

Fair use vs. unfair use

Summary: I couldn't agree more with John Carroll's sentiments regarding the use of DRM to protect the intellectual property of the individual. After all, that was the original intent of copyright law -- to protect authors and to make it economically feasible for publishers to publish an author's works.

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TOPICS: Legal
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I couldn't agree more with John Carroll's sentiments regarding the use of DRM to protect the intellectual property of the individual. After all, that was the original intent of copyright law -- to protect authors and to make it economically feasible for publishers to publish an author's works. In recent years, that part of U.S. Copyright law which defines "fair use" has been used as justification for all sorts of unethical, if not downright illegal, copying of intellectual property. We seem to have forgotten why and how the "fair use" laws came into being.

With the invention of xerography (commonly known as photocopying), it became practical for the individual to quickly copy any printed material without losing information to the copying process. Though not economically feasible to copy large works using this technology, it was sufficiently economical for many to copy only those portions of a work that they needed -- leading to a potential loss of revenue for publishers. The "fair use" terms were written into copyright law in order to "decriminalize" what was, by that time, a widely adopted practice for gaining personal access to information. By the 1970s, the invention and wide use of BetaMax and VHS led the courts to extend "fair use" to allow "time shifting" of copyrighted material widely available over the airwaves -- which were placed in the public domain by Congress in 1934. However, as with xerography, the copy was of lower quality than the original and thus was easily distinguishable from the original. This kept illegal copying (essentially, copying for a profit) below the threshold necessary to threaten the economic interests of the parties involved (authors, publishers, and users).

The DCMA (and with it DRM) is perceived by most users today as a way to protect corporate interests -- not those of the authors of the intellectual property. The low cost of blank media as compared to the high cost of copyrighted materials exacerbates the perception that the only ones profiting from the protection of intellectual property rights are corporate interests.

Using widely available technology, it is now possible to make perfect digital copies of copyrighted material. These copies are indistinguishable from the originals. Coupled with the perception that some nameless, faceless, corporation is ripping them off, many turn to peer-to-peer networks for convenient access to these copies rather than visiting their local retailer. The operators of those peer-to-peer networks have just as much of an ethical (and now legal) obligation to protect the intellectual property rights of authors as do the publishers who still represent the bulk of the authors publishing today.

My objection to the DMCA (and DRM in general) is my perception that publishers, given the opportunity, will limit the choices of those with legally obtained intellectual property. I do not want to be told that I cannot put my ebooks, music or videos (which I bought and paid for) on my PC or my iPod -- or in any other form convenient for my use or my family's use.

I suspect that many share that view and, for that reason alone, many will turn to technology developed by the unscrupulous in order to free themselves from contrived schemes intended to thwart the pirate-for-profit but have the opposite effect -- of turning otherwise honest users into "pirates" themselves. Often, the users of these peer-to-peer networks may not even realize that the tools made available to them for free are allowing them to do something illegal -- and punishable by fines or jail time!

This decision by the Supreme Court places the responsibility for the use of peer-to-peer networks squarely on the shoulders of the providers of those networks -- where it belongs! No provider can control how their services are being used all of the time but this decision places them on notice that if they have a reasonable expectation that their network is being used for illegal purposes, they have an obligation to take action to prevent those illegal acts -- or face prosecution or litigation for damages.

As for the DMCA -- and DRM in general -- corporate interests can go a long way to changing the perceptions of many by changing their attitudes. Rather than trying to thwart the very digital technology they have come to rely on for their livelihood, and inconveniencing their legitimate customers in the process, the RIAA, the MPAA, and other holders and publishers of intellectual property should be leveraging this technology to make these materials more widely available at attractive prices so that piracy is no longer an attractive option to the casual user. iTunes and eReader.com are just two excellent examples but they are only the beginning.

Topic: Legal

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  • Fair use and perfect copies

    You might want to check into the history of the Fair Use Doctrine. In a way you're right that it stems from the ability to make "perfect digital copies," but the "perfect digital copies" in question have been possible since the invention of writing [1].

    The Fair Use Doctrine was common law before the United States Supreme Court codified it in 1841 in the case of [i]Folsom v. Marsh[/i], 9 F.Cas. 342 (1841). It stems in part from the Constitutuion's First Amendment and is the judicial balance between the First Amendment's protections of free speech and press against the Copyright Clause.

    [1] We love our electronic toys so much that we tend to forget that language is basically digital, and that the ability to make error-free copies has been with us for a [b]long[/b] time. Compare the Dead Sea Scrolls with a modern Torah, for instance. Will your CD-Rs still be that good 2000 years from now?
    Yagotta B. Kidding
    • But...

      ...the effort involved in producting "perfect" copies was, until the advent of the digital era, prohibitive. Just like the Internet and P2P are requiring content providers to re-think their business models, so must the age of perfect digital copies require that copyright law be revisited. It's funny how the same people who say that content providers must change with the times are still applying old technology to the "fair use" doctrine. Why shouldn't "fair use" be required to change with the times as well?

      Carl Rapson
      rapson
      • Changing with the times

        Your argument, if I understand it, is that the cost of publication has come down and therefore copyright law must be made more stringent to deter the greater numbers of potential infringers who would in earlier times have been deterred by the cost of copying.

        If that's not right, rewind and we can avoid driving this thread too deep.

        Assuming so:

        Copyright is in theory a social compromise between freedom of speech (where there would be [b]no[/b] restrictions) and the need to incent authors to write. The ideal compromise would be that which prouduces the most value in new public-domain works: neither so strict that nothing of value enters the public domain [1][2] nor so loose that authors and publishers see no benefit in new works at all.

        What has happened, then, is that the cost of publication has come down. This has resulted in an increase in profits for authors and publishers thanks to reduced costs. It has also increased non-profit publication, both legal and illegal.

        The question is, has it increased illegal publication to the extent of disincenting legal publication? More to the point, has it reduced [b]net[/b] legal publication [3]? I think you'd have a hard time making that case but by all means give it a shot.

        Within the above problem, you have the additional one of singling out those copies that fall under fair use. IMHO they are vanishingly small in number; almost all infringing copying is flagrantly illegal and makes no pretense of fair use. Thus, I heartily disagree that the Doctrine of Fair Use is out of date even on economic grounds.

        On civil-liberties grounds I disagree even more; the pillars of fair use are grounded in fundamental Constitutional principles and those must be approached very cautiously indeed.

        [1] 95-year-old newspapers are the only ones entering the public domain now. Arguably the public is not enriched measurably.
        [2] Copyright to some degree acts against creativity, in that new works are based on older ones. Jazz is a great example, or if you prefer consider how many of Disney's cartoon features are based on public-domain works.
        [3] For the views of real-live authors and publishers, you should familiarized yourself with Eric Flint and Jim Baen at http://www.webscription.net -- they write and publish (respectively) books in both paper and electronic form, with no restrictions on the copying of the electronic books. They swear that they have cold, hard numbers showing that [i]giving away[/i] electronic copies actually results in increased sales of dead-tree books. For them it's not theoretical, it's what puts food on the table and keeps the business running.
        Yagotta B. Kidding
        • Not quite

          "Your argument, if I understand it, is that the cost of publication has come down and therefore copyright law must be made more stringent to deter the greater numbers of potential infringers who would in earlier times have been deterred by the cost of copying."

          No, that's not my point. My point is much simpler - just as the concept of IP "ownership" and copyright must be revisited because of technological advances, so must other aspects of IP, including fair use. I'm not advocating the overthrow of fair use by any means. But to say that content providers and copyright owners must change and adapt, while consumers of IP are allowed to continue applying the same old (outdated?) laws, is neither fair nor constructive.

          Carl Rapson
          rapson
          • Re: Not quite

            [i]But to say that content providers and copyright owners must change and adapt, while consumers of IP are allowed to continue applying the same old (outdated?) laws, is neither fair nor constructive.[/i]

            Content providers must change and adapt not because someone says so, but because their markets dictate it.

            And I do have to object to the notion that the content industry is being treated unfairly. Two recent laws, the CTEA and the DMCA, have tipped the copyright balance ever more in the indusrty's favor. The CTEA, particularly, is an outright windfall.

            Ask yourself, what did Congress give the public in return for taking away the public domain for 20 years? Do you think the CTEA was fair? I'd really like to know.


            .
            none none
      • Re: But...

        [i]Just like the Internet and P2P are requiring content providers to re-think their business models, so must the age of perfect digital copies require that copyright law be revisited.[/i]

        I couldn't agree more. Publishing is so cheap these days, anyone can do it. How much incentive really is needed? Can anyone point to a study that shows the last copyright extension (or any of them, for that matter) has led to more works in the public domain?


        [i] Why shouldn't "fair use" be required to change with the times as well?[/i]

        Everything you wrote in your original post is stupidly, from the point of view of public policy, and conveniently, from the point of view of corporate profits, copyrighted.

        Without fair use it would have been infringement for me to quote you above absent your permission.

        Secondly, fair use isn't a right - it's a defense. You still can sue me for infringement. You won't win, but you can do it. Or maybe you will win, and copyright law is adjusted to new technologies.

        On the other hand, it's possible that what the article's author claims is abuse of fair use becomes legitimate fair use because of a lawsuit. Like time shifting. Fair use is the safety valve that lets copyright adjust to new technologies and new claims by stakeholders in copyright - including the public.

        Without fair use there wouldn't have been a Betamax case. With DRM there likely won't be another.


        .
        none none
    • A technical point ...

      Your example in [1] makes my point about making "perfect copies".

      A copy of the Torah, as found in any bookstore today is not word-for-word identical to the Dead Sea Scrolls. I believe the Dead Sea scrolls were written in Aramaic but, even if they were written in Hebrew, like all modern languages, Hebrew has changed dramatically over the last twenty centuries.

      The fact that the Dead Sea scrolls are not word-for-word copies of other ancient texts further reinforces the point.
      M Wagner
      • Copy exact

        [i]I believe the Dead Sea scrolls were written in Aramaic but, even if they were written in Hebrew, like all modern languages, Hebrew has changed dramatically over the last twenty centuries.[/i]

        The Torah portions in the DSS are in Hebrew, and are not identical to the Masoretic text. They are, however, remarkably close to the Masoretic text in most portions and like other non-Masoretic texts in the rest. It's not too great a stretch to lay the differences to editorial decisions rather than scribal error.

        In any case, would you bet on your DVDs being as close after two thousand years?
        Yagotta B. Kidding
  • Driving customers to crime

    Good job of pointing out the major flaw in the DRM schemes of
    most content providers--they do nothing to slow down the
    serious pirate, but they tremendously inconvenience the paying
    customer. Clearly, the main goal of this DRM is not to thwart
    piracy, but instead is meant to get the customer to have to
    purchase multiple copies of the same content. Here's a good
    article outlining the reasoning behind DRM:

    http://www.corante.com/copyfight/archives/003559.html
    tic swayback
  • Misreading the Supreme Court decision.

    Your discussion includes a number of errors, with the most egregious being the assertion that the Supreme Court placed responsibility for illegal file sharing on software providers.

    First, though, your definition of illegal copying is too limited:

    This kept illegal copying (essentially, copying for a profit) below the threshold necessary to threaten the economic interests of the parties involved (authors, publishers, and users).

    Yes, the Supreme Court was particularly harsh on Grokster because they are making a profit from the illegally copied material. A not-for-profit piece of software could also be used for illegal purposes, but the Court seemed more exercized by the fact that money was being made.

    The erroneous view of the Court decision appears most clearly here:

    The operators of those peer-to-peer networks have just as much of an ethical (and now legal) obligation to protect the intellectual property rights of authors as do the publishers who still represent the bulk of the authors publishing today.

    Nope.
    The Court said that the proven intent to encourage infringement was an illegal act. Had Grokster et al been more pious in disavowing infringement, with the stated intent that their software should never be used for that purpose, the companies would not have been accused.

    The absence of any effort to prevent infringement within the software was cited only as one more piece of evidence of intent.

    The concurring opinions did get into dangerous territory, talking about what percentage of infringing use was an ipso facto indication of intent. But the Court specifically witheld judgement.

    All that you can say about the decision is that a company which states its intent to profit from infringement is in trouble.


    You say that the responsibility should be placed on the software providers:

    This decision by the Supreme Court places the responsibility for the use of peer-to-peer networks squarely on the shoulders of the providers of those networks ? where it belongs!

    This is not a factual error, but I disagree with the assertion. Technological innovators should not have to worry about the misuse of their product. The Court was very rightfully concerned that placing a responsibility like this on a fledgling company would be damaging.

    In addition, the individual's freedom of action should not be restricted only because of what an individual might do with that freedom. If the attempt to prevent an illegal act could in any way prevent perfectly legal actions, then the law or regulation is imbalanced.
    Think of it in terms of the expression about ... a few rotten apples...


    But we do agree on this statement:

    Rather than trying to thwart the very digital technology they have come to rely on for their livelihood, and inconveniencing their legitimate customers in the process, the RIAA, the MPAA, and other holders and publishers of intellectual property should be leveraging this technology to make these materials more widely available at attractive prices so that piracy is no longer an attractive option to the casual user.

    That can happen.

    As with software itself, free can be beaten by a good product that does what the user wants in a friendly, convenient manner.

    As soon as the content providers develop a reasonable plan for internet distribution, the piracy problem, which is not costing them profits, will begin to diminsh until it becomes negligible.

    Without a critical mass of reliable providers, the pirate networks will become unuseable.
    Anton Philidor
  • what??

    The purpose of copyright is to protect authors?

    Fair use doctrine is a result of xerography?

    The Grokster decision puts responsibility for infringement on the vendors??


    It's like every assertion in this article is factually wrong. Amazing.
    none none
  • Original intent of copright law

    The original intent of copyright law wasn't only to protect authors and publishers. An important part of the balance was the public's interest as well. Constitutional basis:

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
    -U.S. CONST., art. I, ? 8, cl. 8.

    The means of this promotion was the protection of those works.
    cjovalle
  • How Wrong? THIS WRONG!

    Your argument is completely 'base-over-apex'.

    Copyright assumes that artists require a monopoly on the use of their work in order to be incentivised to do what they would do anyway, and to reap a suitable reward for their efforts.

    This philosophy goes on to say that the reward society at large gets for the very high price (think: legal and regulatory costs) of recognising and policing these monopolies is public access to new art - enriching lives.

    It is from this conflict between monopoly rights and an immediate need to see a public good that we get the doctrine of 'fair use'.

    Copyright, in particular, has never protected the people it was meant to protect - directly. Most artists have even been disadvantaged. This is due, since the invention of the printing press, to the ever-rising costs associated with promotion and distribution of books, pictures, films, music, etc.. The high price of, say, pressing a vinyl disc and distributing it to music stores + promoting the new artist through papers, magazines, and radio meant that an artist was effectively prohibited from self-publication.

    Politicians also had another agenda. If anyone could print anything (i.e. as printers simply set themselves up as freelance publishers) then anyone could print anything about anyone or any thing. While this is close to the democratic ideal, try keeping your cool after being slandered in print, or openly abused in a publicly hung picture...

    Enter Copyright, and the Publisher.

    A publisher does two jobs:
    - Takes risks on new artists. Using their big financial resources they promote artists. Most bomb. But, those who succeed make big profits - thus covering publishers' losses, and some...

    - As a recognized institution with the new right of imprimatur (license to print) the publisher becomes a legal entity that is easy to track down (and sue, or control through pressurisation and influence, or directly politically control - though this last one is very unusual as it isn't really needed).

    Unintended consequences.

    - Publishers grow big and act as big businesses. By definition this means they:
    - - Seek political influence in order to increase their rights (and thus profits)
    - - Act is filters on new artists, initially to maximize profits
    - - Later they also filter out, or control the output of, 'politically sensitive' artists
    - - Build 'libraries' of copyright material wich increases pressure on them to seek stronger copyright
    - - Longer, stronger, copyrights inhibit derivative art and restrict public access
    - - Become political institutions with major political influence
    - - Give us artists like Bryan Adams (!)
    - - Give us monotonous art (Bryan Adams on every radio channel for 15 minutes...)
    - - Continually fight to restrict, or eliminate, fair use (and thus increase profits and influence while restricting public access)

    - Without imprimatur, and without access to financial resources, only a tiny minority of artists ever make themselves heard. Those that do will make a mountain of money. (Hush money?)
    - - Successful artists hand over their copyrights (or trade a share) thus losing some artistic freedom
    - - Some artists are effectively prohibited from publishing, particularly as Big Media begins to own both the means of production (artists, publishing and 'printing') AND the means of distribution (Radio Stations, TV stations, theatres, cinemas, galleries, newspapers, etc.)

    - What is meant by 'public good' becomes skewed to fit the publishers' agenda.

    - Etc. etc. etc...

    The Internet and the PC have offered us the chance to revise this philosophy and get back some of our democratic and free speech rights.

    John Carroll writes:
    Distribution costs, however, are still a large barrier to entry. It costs money to stamp CDs and ship them to distributors. Digital distribution over the Internet could theoretically change all that, provided the problem of "trading" in pirated music can be solved. The only way to solve it, in my opinion, is through the use of strong Digital Rights Management (DRM) technology, and that will only work if certain elements in society don't convince governments to prevent them from doing that.

    Plain wrong. The only way to fix this is to recognize that we want a democratic society and that the Net gives artists the opportunity to make money by promotion-through-free-distribution [i.e. some works for free (using the Net, recordable CDs & DVDs and open file formats) and charging for commissions, and special showings (or concerts)]. That will only work if we strike down DRM and copyright and certain elements in society don't convince governments that Big Media need even greater monopoly powers.

    We're standing on the threshold of a new era. The doors of creativity will be thrown open and a profussion of artistic expression that Zero Copyright will generate will enrich our lives beyond measure. The loss of supporting the monopoly costs of Big Media will free vast intellectual, political, and financial resources better invested elsewhere. 'Fair Use' will become a none-issue as the interests of democracy and free speech will be so better served.

    I want a World where anyone can make money from distributing really innovative and entertaining art - chosen by the people. Today that means fighting to attack the unearned 'rights' of Big Media - and campaigning for the re-assessment of copyright. I'm defending the guy in his basement music studio who will make the 'niche' music I'll listen to - and collect - in the future.
    Stephen Wheeler
    • DRM Reality Check

      Eric Flint is an author who makes his entire living by publication of original copyrighted works. The difference is that John makes money by selling DRM, Eric makes money by selling books. Here's his take:

      http://www.baen.com/library/palaver.htm

      [i]Income doesn't derive from preventing theft, it comes from making sales. A certain amount of loss due to theft is simply one of the overhead costs. Obviously, taking simple measures to eliminate as much theft as possible is sensible. But at a certain point -- and much sooner than you might think -- the measures you take to prevent theft can start cutting your income.[/i]

      There's much more that's valuable, including several other essays at

      http://www.baen.com/library/palaver_index.htm
      Yagotta B. Kidding
      • Thank you

        Many thanks for this link, it is very interesting.
        Stephen Wheeler
  • DRM

    DRM is the publishers way of ripping off the consumer by offering less for more. IT's well known that in the music industry (I am in Nashville, you know) that the artist get as little ass 2 percent of the profits of their cd sales. The bulk of the profits are gobbled up by the record company. DRM of music content is actually pretty useless as a weapon against piracy simply because it doesn't take a rocket scientest to figure out that you can tape the output from a DRM protected device, and redigitize the recording.

    Remember this, it is cheaper to mass produce a CD then to make one-off copies. And writable CD will degrade and become unusable in as little as a year. Wen I buy a CD I get the music, a jewel case for the cd, a lyric sheet and media that is far more durable than one I burn myself. I can listen to the cd in my car, my home, my portable cd player or on my computer. All for about 1 or 2 dollars per song. If I tire of the musicon the CD, I can sell it, trade it, give it to Goodwill.
    When I buy a DRM-protected WMA file, for about 1 or 2 dollars per song, I get a music file, no media, that will play only on my PC and 1 registered portable device. NO media, No lyric sheet, no jewel box. Yet I pay the same or higer price.
    I am own a gemstar ebook reader. Gemstar bought the idea from a company called Nuvomedia for a handheld ebook reader. They srtipped out the ability for the end user to create the proprietary format for hte ebook editions. The readers sold for $200 and they offered subscriptions to magazines and newspapers through a dialup service and also offered a large library of novels. much of the content was bound through DRM to a specific ebook reader. The problem was that the ebook editions were priced the same as a paper edition. Furthermore most of the works in the Library were in the public domain and available from Project Gutenburg ( Project Gutenburg is an ongoing project to transcribe all public domain literary works into plain text files that are made available to the public at no charge.) Gemstar shot themselves in the foot by not offering quality content at a reasonable price. Gemstar dropped suppot for the EEbook readers entirely. Fortunately, my ebook is an older model. It can use non-DRM protected files. I have been using an open source program to format e-texts from Project Gutenburg to use on my ebook reader.
    The point is that Gemstar was greedy. It cost them next to nothing to make the content available. People would not mind paying 25 cents for an ebook edition of 'Julius Ceasar', but would just as well own a print version is they have to pay $6 for it. DRM and the DMCA are by and for the benefit of the publishing industry. When you watch a dvd, read the copyright notice at the end. When yo listen to a CD, look at the copyright notice on the CD or on the lyric sheet. Is the disk copyrighted to the artists or to the publisher. You may be suprised by how many of the copyrights are held by the publishers.
    NiklausPfirsig
  • the problem

    John Carroll said, "I want a world where people can make money from distributing a "mere" 5,000 records a year."

    Yes, but the problem is that big media is lobbying congress to set up the laws and technology so that this will be impossible. They want to arrange things so that you can't make any money unless you are a huge record company.

    If you don't believe me, look at what they did with Webcasting.
    Eduardo_z