Protect Your Fair-Use Rights

jrguthrie writes "There is a great site for helping two bills through the legislative process, protectfairuse.org. The site makes it simple to E-Mail and/or snail-mail your Representatives and Senators. The bills are designed to close the gaping holes in the DMCA that allow the RIAA and MPAA to use the DMCA as a government bail-out. Please check it out and post your thoughts."

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[DarkKnightRadick]

I'm signing up now. This would DEFINITLY be one of those "Really Good Things"(TM)

Not fair use

[Henry V .009]

The term "fair use" is often misapplied on slashdot. Fair use applies to quotations of works for certain purposes.

The rights that the DMCA takes away are different. The DMCA enshrines into law any control mechanism placed into a digital work. That control mechanism might limit playback in different places around the world. It might limit the number of times a work can be viewed. It might limit viewings to only one machine. If an author of a book requested that a person had to stand on his head while reading that author's intellectual 'property,' (legally purchesed at a book store) he would be laughed at. Moreover the author would have no legal means to enforce the request. On the other hand, if that author creates some equivalent digital requirement (protection) for his work, the DMCA is there to enforce it.

The DMCA was a massive switch in legal viewpoint. Pre-DMCA, an author had limited rights over his work. Mainly he controlled when and who could copy it. Post-DMCA, the term 'intellectual property' has been taken literally, and digital copyright holders are treated as owners of their information--whether or not they have sold you a copy. This is a massive sea-change, and one that is not at all beneficial to society.

Re:Not fair use

[Dachannien]

What a lot of slashdotters want to defend is not just the explicitly-outlined concept of "fair use", but the Supreme Court-outlined concept of time-shifting and space-shifting for private use which also falls under the "fair use" provision.

I'd also like to point out the following quote (Majority opinion in Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984)):

"The Court of Appeals' holding that respondents are entitled to enjoin the distribution of VTR's, to collect royalties on the sale of such equipment, or to obtain other relief, if affirmed, would enlarge the scope of respondents' statutory monopolies to encompass control over an article of commerce that is not the subject of copyright protection. Such an expansion of the copyright privilege is beyond the limits of the grants authorized by Congress."

It appears to me that the DMCA goes against already-established legal precedent in terms of Constitutional interpretation. It's a shame that we even need new legislation to protect these rights, but it's going to have to be grassroots efforts like this which end up making things change for the better.

(Insert standard IANAL disclaimer here)

Re:Not fair use

[Anonymous Coward]

I don't want to go off on a rant here, but saying the DMCA is a switch in legal viewpoint is like saying Christianity is about the idea that it isn't nice to nail people to trees.

I agree, 100% - but the point can be stated a lot stronger. The switch wasn't just in viewpoint. It was a paradigm shift in the entire model of copyright, from one of incentive to control.

Up until 1998, even the most conservative, pro-copyright summation of what copyright was all about came down to one question: when the currency is rights in one's work, how much do we have to pay artists to make them create their works and contribute to the public domain?

That's the incentive model, which arguably dated back to the Statute of Anne. And it lasted until the DMCA - the Statute of Valenti.

With the DMCA and the Copyright Term Extension Act (Mickey Mouse Protection Act), it became about control. The content people - MPAA, RIAA, and the other Horsemen of the Infocolypse conjured up the fallacy that an endless linear curve characterized the relationship between incentives and production.

They hijacked the incentive model to produce - for example - the myth that if 50 years' incentive produced x works, 70 years would produce x + y works, and 100 years would produce x + y + z works, and so on. By that logic, only an infinity of years would maximize the amount artists create. Which of course, is crap, because what you're really saying is that it is only in a regime where you have the least access to expression that you will have the most access to expression.

I'll pause while we all think about that one.

Now, that's an argument about extension, but the same applies to control of use under the DMCA. Anti-circumvention is the same thing. If copyright owners can make you buy two copies, (say, one and a backup) when you would normally buy one, then they sell more, and have more incentive to create. Or so the theory would go.

The DMCA increased control about as much as pro-IP lobbyists thought they could before anyone noticed.

Give authors the right to prevent critical reviews, for example, and you are increasing control. Because you're increasing control, you should have an incremental increase in the number of works in the public domain (or at least, the Area Formerly Known As the Public Domain).

Strikes a balance? Yeah - I guess - between taking advantage of public apathy and provoking total public outrage. Guess they struck a balance there. But balance or not, at the end of the day, the DMCA is a control-oriented creature, whereas copyight and fair use doctrines are incentive-oriented creatures.

Sorry about that. So who are these protectfairuse.org people anyway?

Re:Not fair use

[Henry V .009]

Strikes a balance? Yeah - I guess - between taking advantage of public apathy and provoking total public outrage. Guess they struck a balance there.

Now, that statement was just wonderful.

Re:Not fair use

[Twirlip of the Mists]

I agree with everything you said-- surprisingly, because we've had some pretty exciting arguments in the past-- except for one tiny thing. Your post kinda made it sound like the DMCA embodied a sudden shift in the way people think about these things. I don't think that's true. I think it's been, in fact, a very gradual change over the course of about a century. It really got started when radio became widespread, and the idea of "broadcasting" became known. It was immediately recognized that broadcasting is different from copying, but that the two share certain important characteristics. In general, the copyright holder gets to decide whether a work can be broadcast or not, and under what circumstance.

Think of it this way. If television station KBBL buys a copy of "Pokemon: The First Movie," are they allowed to broadcast that movie over the air? No, despite the fact that they own a legally purchased copy of the movie. If KBBL wants to broadcast that movie, they have to go to the copyright holder (or, more accurately, an agent thereof) and secure a license to do so. That license-- sometimes called a "clearance"-- will say something like, "KBBL can show 'Pokemon: The First Movie' up to three times during calendar year 2003, but only on Saturday afternoons between 1 and 4 PM." As long as KBBL follows those rules, they're okay. But if they show the movie a fourth time, on a Tuesday at 9 AM, they're in big trouble, and will probably have to pay a substantial penalty to the licensor.

So the idea that copyright holders get to determine more than simply who does and who does not get to copy their works has been around for nearly 100 years.

I'm not disagreeing with your main point at all; I'm just saying that the idea embodied and protected by the DMCA is not a new one at all, and its adoption by authors and legislators alike was not sudden.

Re:Not fair use

[Henry V .009]

Well, that would make sense except that it doesn't. A broadcast is an act of copying...Thousands of televisions across the nation get a duplicate of the one show. Therefore I fail to see how your example supports your statement: "So the idea that copyright holders get to determine more than simply who does and who does not get to copy their works has been around for nearly 100 years."

Re:Not fair use

[Twirlip of the Mists]

A broadcast is an act of copying...Thousands of televisions across the nation get a duplicate of the one show.

Broadcasting isn't copying. It's public performance. Broadcasting can result in copies being made today, what with VCRs and all, but back in the early days of television that wasn't true. There was no such thing as home recording equipment, so broadcasting and copying had nothing at all to do with each other. They don't really have anything to do with each other today, either, except to the extent that broadcasting and copying intersect when it comes to home recording.

So yeah. The idea that copyright holders get to determine more than simply who does and who does not get to copy their works has been around for nearly 100 years.

good, & "government bail-out"?

[MacAndrew]

Sites like this are an excellent idea. Most of use don't want to hunt the web for addresses only to get the wrong ones. I promise to follow through on this.

I'm interested in the "bail-out" comment -- do many agree with that? Maybe I misunderstand. If blocking piracy is thought a bail-out, I disagree, it's just enforcement of existing copyright law. If killing fair use is a bail-out, I don't see how that could be true because the money involved must be small. Killing fair use make the product less attractive, reducing sales; yet some people might buy extra copies (one on CD, the other MPEG or something), increasing sales; won't these two tend to cancel out?

Ideally (for me anyway) we would kill piracy and preserve fair use, and that's the message I will communicate to my representative. The DMCA's flaw in this regard is its clumsy attempt to preserve fair use. According to the statute's own language it does not alter fair use, but of course in practice it does, and perhaps also free speech. Whether piracy and fair use can be simultaneously addressed, well that's a whole 'nuther problem discussed at length elsewhere here. :) For now the DMCA needs to be substantially flushed and rewritten (no one's going to repeal it).

Damn the "Fair Uses"

[DarkVein]

Fair use is soemthing else. The DMCA enshrines digital media that abolishes all unregulated use. The MPAA/RIAA want to do this because the technology allows it. What they want to do is impossible to do with traditional media.

The entire picture is distorted by the prevalence of this "us vs them" battle. These laws dictate proper use of any creative work. The DMCA itself dictates the proper use of any digital distribution, creative or not. The RIAA/MPAA make up a very, very, small portion of the subject being regulated.

Lessig's presentation [randomfoo.net]. (mirror [shackspace.com])

On the "Us Vs Them" front, the RIAA/MPAA want to monopolize the American source of Culture. This is a very lucrative proposition. The RIAA/MPAA demonstrate a flagrant irresponsibility as steward of the culture they currently control, and they want to own more. They do this by bleeding off the Unregulated areas of Copyright. The goal is to abolish The Commons, so that you must buy your heritage from Universal Music Group, et al.

Re:Damn the "Fair Uses"

[gmhowell]

On the "Us Vs Them" front, the RIAA/MPAA want to monopolize the American source of Culture.

How long until some European or some domestic snob comes along and says something to the effect of 'USians [sic] have no culture'?

Re:Damn the "Fair Uses"

[EzInKy]

USians

Or "WEans" * [textcontrol.com]

*"THE WEANS", by Robert Nathan
published by Random House, January, 1960, the Dodgers were a warring tribe
that migrated from the east coast to the west coast, probably because of
better hunting or simply because they were chased westward by a superior
tribe called Yankees, there was also a tribe of Giants in the same area, but
little is know about that tribe today... or, an elevator was used for
religious and spiritual ceremonies since the word elevator has something to
do with elevation and spirits.

Re:Damn the "Fair Uses"

[Alsee]

The MPAA/RIAA want to do this because the technology allows it.

Actually technology allows them to TRY. Except that every attempt has failed, and every attempt WILL fail.

Their own techs are telling them this, but they refuse to accept it. I really wish they'd realize it and stop trying to pass horrid laws and stop making it miserable for legitimate use.

I'd really love to find out who came up with the [sarcasm] BRILLIANT idea to "plug the analog hole". I'd like to see him wake up and find a 6 foot pile of dog poop on his front porch.

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