

Fair Use Is Not an Exception to Copyright, It’s Essential to Copyright - CapitalistCartr
https://www.eff.org/deeplinks/2015/01/fair-use-not-exception-copyright-its-essential-copyright

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skywhopper
The EFF brings up potential new copyright modifications to tighten down on
fair use. It's important to remember that in 1998, the US Congress extended
copyright protection retroactively for 20 years, putting off new additions to
the public domain until 2019. So all of us who care about copyright ought to
be ready for a new copyright extension act coming in 2017 or 2018, to extend
things even further. That will be the optimal time for the industry to push
for another DMCA-style law that will complicate our lives even further and
push more power into the hands of media conglomerates and out of our control.
Be prepared.

~~~
api
Those extensions are known as the "Mickey Mouse protection act," since more or
less their sole purpose is to ensure that Mickey never enters the public
domain.

~~~
spacemanmatt
...inasmuch as Mickey is a proxy for Disney's (some others, but mostly
Disney's) mindshare which copyright protections are about to expire. I really
wish the original copyright law stipulated that for a given work, controlling
law is what's on the books at the time it was printed.

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baldfat
Former Academic System's Librarian here. "Fair Use" when I was a librarian
meant absolutely nothing. Librarians were the biggest defenders of copyright
and would scold and threaten anyone that they felt was on the borderline of
fair use. REASON? The fair use clause is horribly written and is legally
provides zero protection from libraries or schools from litigation as told to
us by lawyers.

So don't touch and don't get near anything that looks beyond showing a video
in the classroom. Then a school was sued for students watching legal videos in
"public areas" AKA lobbies and even outside on their laptops. This was when
buy these viewing licenses to cover yourself for classrooms that show video
content started.

~~~
6stringmerc
It's too bad librians couldn't muster the mettle to pull a DMCA type of user-
based accountability. I'm serious about this, as Fair Use does have
significant implications when performed in an institutional setting, but by
the use of individuals, it becomes much more easy to circumnavigate. One of
the greatest misconceptions is the extent to which Fair Use applies - showing
an entire video? That's not Fair Use except perhaps in a Film Studies class by
a vetted Professor. Showing a snippet of a video as a point within a broader
presentation or lesson? That's the goal of Fair Use.

Showing videos as a general rule is a Performance Right issue, not Fair Use.
The DMVs in my part of the world routinely broke the law by showing Disney VHS
tapes in the lobby. I'm talking for years, not just an isolated incident.
That's not a Fair Use issue in the least, and lawyers, with respect to the
law, could reasonably pursue compensation.

Are you familiar with "independent coffee shops" coming under fire from ASCAP
for hosting open mic nights and/or playing AM/FM/XM/Internet Radio without
paying official dues? The poor widdle coffee shop owners claimed it was
extortion, or they tried to muddy the water with some kind of Fair Use claim,
but they didn't have a case and I have to admit that ASCAP was abiding by
their legal rights. Now, coffee shops are more diligent in telling people to
play originals, not cover songs.

Overall, my point is that Fair Use is so utterly abused as an argument by
people who don't understand Copyright, Performance, and other nuances of
(wholly butchered / Disney-lobbied) legal channels that it genuinely hurts
those who understand the concept. I routinely have to counter the argument
that Weird Al is an example of Fair Use (as a general principle of using other
people's music) because it's a very specific issue that he is legally allowed
to do - Parody. Showing Bambi or non-Public Domain documentaries in the lobby
of your library isn't Parody, nor should it be argued that way. Besides, if
librarians can't find enough Public Domain content or educate students enough
to assist them researching a project, then the job is effectively wasted
space, and should be tossed out of conversation with respect to utility and
necessity.

~~~
baldfat
Radio is a public broadcast and people get sued for tuning in. Like the NFL
Super Bowl party limitation and screen size of the past. These rules drive me
nuts and should be reviewed in my opinion.

So your recommendation to all the street performers? If open mics are
"stealing" from the artist then street performers are at a whole new level. We
will have no art or performance in our society if we continue these down these
roads of copy right and performance.

Only one's that can do anything reflecting to society will be satire and that
is only because of the Supreme Court.

~~~
6stringmerc
IIRC Satire isn't legally protected, just Parody. There's a distinct
difference. I think Hustler was a Parody ruling.

What you're failing to recognize is that the coffee shop owners are, for lack
of a better term, profiting from the music being played in their
establishment. In a more direct case I can speak to, I frequently purchase
beer from the places where I've played open mics. They directly profit from
hosting the event, and feel that they should be exempt from paying the
compositing artist association dues...why?

Now, for street performers, they are providing a service akin to radio,
insofar that they are publicising a song, not charging a cover, and further
advancing the arts and society's respect for them (putting aside the quality
of the performer). That's why my local city has ordinances actively supporting
busking - provided no solicitation for compensation is put forward - because
it makes life better. In turn, performers are allowed to have a tip jar or
accept compensation as they are benefitting society and the arts through the
"practice and performance of their craft" as the ordinance describes it.

~~~
spacemanmatt
Satire is a defense to defamation, which was what Falwell sued over, and
Edward Norton, playing Larry Flint's attorney, did such a swell job of
depicting in the movie, People vs. Larry Flint.

~~~
6stringmerc
Ah! Nice to have that input. I'm with you in spirit, for sure. That stated, I
think we are both on-track with some of the difficulties relating to Speech
vs. Fair Use. Freedom of Speech seems to be the tenent by which Flint won
against the Defamation charge. However, in Fair Use, where Parody has very
clear protections, it seems Satire is not as supported as grounds for Fair
Use. The Wikipedia citation regarding Campbell notes that Satire may be
protected, but yet again, we run into erratic outcomes on the subject. Phew!!

~~~
baldfat
From the American Bar Association:

The Satire/Parody Distinction in Copyright and Trademark Law— Can Satire Ever
Be a Fair Use?

Supreme Court also ruled that Satire/Parody is Fair use protected due to their
verdict in Campbell v. AcuffRose Music, Inc

[https://apps.americanbar.org/litigation/committees/intellect...](https://apps.americanbar.org/litigation/committees/intellectual/roundtables/0506_outline.pdf)

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unreal37
I support the EFF and the protection of fair use, but I don't think this
article is well written enough to make a good case for it. It makes some
coherent points near the end of the article, but the beginning is just a
jumble of statements that introduce a fair amount of confusion.

For instance: "New technologies and services depend on the creation of
multiple copies as a matter of course. At the same time, copyright terms cover
works many decades old and copyrighted software appears in more and more
devices."

That's just a mess of an argument. What does it even mean? "Copyrighted
software appears in more and more devices." Hasn't every electronic device
ever invented (from the Sony Walkman days, to VCRs, to every flat screen
television on the planet) contained copyrighted software? How is that "more
and more"? I don't get the argument here.

~~~
6stringmerc
I agree; I was hoping for a more cogent explanation, but the whole time-
shifting concept with respect to Fair Use is...weird? It's more of a "Terms of
Service" type of issue, from my perspective, in that paying for the service
should carry with it certain reasonable rights. It's not exactly a
"transformative" notion from my perspective, but honestly, the courts have
been so all over the map of reasoning that it takes me a while to figure out
the logic. Sometimes, when I do figure it out, I get really, really mad with
flashbacks to the crux of the Napster case which ruled "A home computer is not
an audio device and therefore person-to-person sharing of audio copies as Fair
Use does not apply" (paraphrased) and is so utterly shitty and wrong it has
led us down the DRM wormhole.

At least Eminem successfully sued for his 50% cut. For those unfamiliar, the
jist of the story is Eminem's label told users they were 'leasing' a song,
which entailed a 50% royalty rate to Eminem, but they accounted each lease as
a 'sale' and paid him closer to 20%...which was in violation of his contract.
He sued, he won, and it's a thorn in the industry's side to this day. I blame
the greed of "having our cake and eating it too" and the outcome pleased me on
both fronts as an artist and paying consumer.

~~~
jahewson
Time-shifting is not a "Terms of Service" issue, because fair use is a right
under copyright law and signing a license cannot take that away from you.

Also, I think you misread the article: Time-Shifting was never ruled to be
transformative. It was ruled to be fair use by the Supreme Court because it is
for private use and does not affect the market for the original work.

~~~
6stringmerc
Ah, indeed I conflated the "transformative" part from the book scanning, which
makes them searchable. That's definitely a value-addition of the process, to
me. Oh well, I'll leave the comment as it stands, flawed as it may be.

As far as signing a ToS / license, yeah you're right in principle, but I have
no doubt that right will, as it was in this case, be under heavy legal
artillery for the foreseeable future. Even the NFL hasn't bothered to change
their tune with their "...is prohibited" disclaimer, which is fundamentally
unenforceable. Maybe if that kind of dishonest truth stretching were an
actionable offense, the stakes would be a little higher and cases more
interesting.

~~~
jahewson
Yes, misleading copyright notices are real a problem as they cause many people
to think that they will violate the license by exercising their fair use
rights. Fixing the language might help - but I'd like to see fair use more
clearly defined, so that consumers can easily check if their activity is
legal, regardless of the license.

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graeme
Does anyone know a good lawyer for fair use issues? I've got a project that
I'm fairly certain falls on the fair use side of the line, but it's important
enough that I'd like a lawyer's opinion.

~~~
jahewson
Lawyers are very good at identifying threats, but they will never offer you
much assurance about an issue as subjective as fair use. There's always some
speculative danger they can see that's technically, though maybe not
realistically, justified.

What you can do is ask a lawyer if your idea is obviously _not_ fair use and
you'll get a straight answer. But you're not going to find someone who is
going to say to you "yes, this is fine" because the law covering fair use is
so vague. Laywers need to protect themselves when giving legal advice.

I'd recommend reading up on fair use and using your own brain. Case law is
especially useful, i.e. many fair use cases regarding software have been to
the supreme court - if you find a ruling covering something similar to your
project then that is a good sign - Wikipedia and Google News are your friends.

~~~
rhino369
>I'd recommend reading up on fair use and using your own brain. Case law is
especially useful, i.e. many fair use cases regarding software have been to
the supreme court - if you find a ruling covering something similar to your
project then that is a good sign - Wikipedia and Google News are your friends.

I wouldn't do this for myself and I am lawyer capable of doing this sort of
work for someone else.

You bias your own research when you are too close to the matter.

If you want a good rule of thumb for commercial fair use: Don't use
copyrighted material at all unless you are doing a clear parody.

