MESSAGE
| DATE | 2002-10-01 |
| FROM | Ruben I Safir
|
| SUBJECT | Subject: [hangout] Fair Use and Property Rights in the digital age
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There are just a couple of mistatements made by Alex that an unsuspecting individual might be left with a misconception about. So I felt, in lew of Peter's earlier request to get some specific citings, that these misconceptions needed to be covered for the good of the reader who might become confused about current law, and copyright, and digital rights.
First, let me say that we need to break this issue into thre categories of topics which often get mixed together, further creating confussion for computer users, and people in general in regards to public policy and current legal standards.
First, Copyright Common Law is based on the US Constitution, and prior to this, Brittish CommonLaw based on the Queen Annes Statute. The force of these legal priniciples determine the greatest number of court cases. Congress, in construction of Copyright Law, has always had to deal with these common law atributes to copyright in their entirely since they by and large are rulings which determine the legality of Copyright assertions and their negitive impact on Constitional Rights under US Law.
Therefore, Congress could never just sweep away past court rulings based on Constitutional guarantees, and in fact would need to define room for fair use or the law wouldn't stand Judicial review.
In this regard, we should also note that legally, the "Fair Use" Doctrin, in the strict legal sense, is only a defense in court against Copyright infraction cases. It's has not previously been considered an inalienable right any more that Copyright itself is. The current legal doctrin is, therefore, that fair use is an exception to copyright.
Secondly, there is statutory copyright, which is the section 107 under the code, plus other regulations such as the DMCA. The statute under 107, in regards to fair use is puposefully ambigious, and was ment to be so.
Quoting http://www.umi.com/hp/Support/DExplorer/copyrght/Part2.html
"If copyright were merely a set of rights belonging exclusively to authors, we would have to seek permission for every use. Instead, the law also grants a right of "fair use" to the public. Fair use is both a privilege and source of confusion. Disagreements about fair use are commonplace, and no one has a definitive, legally binding "answer." Congress deliberately created an ambiguous fair-use statute that gives no exact parameters-fair use depends on the circumstances of each case.
The law offers four factors to evaluate and to balance: (1) the purpose of the use, including a non-profit educational purpose; (2) the nature of the copyrighted work; (3) the amount of the copying; and (4) the effect of the copying on the potential market for, or value of, the original work.[4] In applying these factors, most of us generally would agree that most short quotations from published works in a scholarly dissertation are fair use. Reproducing the full text of an article or other work-even in a scholarly publication-may not be "fair." These examples are relatively easy to grasp, but difficult questions surround more complex cases-the longer quotations, or the uses of distinctive materials, such as standardized survey instruments, questionnaires, videotapes, or computer software.[5]"
At no time has fair use, which predates section 107 by about 2 centuries, been restricted to the letter of section 107. Alex claimed this to be the case. This is completely untrue. The courts have repeatedly run roughshod over section 107 in regards to both fair use exemptions and copyright restrictions. This has only added to the confussion of the fair use doctrine. For examples of areas which the courts have ruled in favor of fair use outside the scope of section 107, see Meeropol v. Nizer, 560 F.2d 1061 (2d Cir. 1977), cert. denied, 434 U.S. 1013 (1978); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966), cert. denied,, 385 U.S. 1009 (1967),
In fact, in the famous JD Salinger case, the opinion of the court included this little gem of an opinion, which deals with 1st ammendment rights in regards to copyright. In of itself, current 'fair use' doctrine does NOT take into account the Billof Right guarantees. But when it is considered, we get opinions such as this:
http://www.cjr.org/year/94/1/fair.asp
"Interestingly, one of the loudest calls for legal challenges to the status quo has come from one of its architects.
Judge Jon O. Newman, who sits on the federal U.S. Court of Appeals for the Second Circuit, wrote the court's Salinger
decision but took a different tack a couple of years later in a law review article on the subject.
Newman called on publishers and their attorneys to "avoid the dangers of unwarranted self-censorship" by
taking an aggressive stand in cases alleging copyright infringement. "Publishers," he urged, "should be willing
in selective instances to dig in their heels and litigate." "
Also what is interesting in this review is that evidently, the 'Fair Use Doctrune" in so ingrained in the legal system, that even articles NOT UNDER COPYRIGHT, never published and owned lock stock and barrel by the auther, can fall under fair use.
In regard to any clarity at all to the question of copying through the issue of "Fair Use", the doctrine is a complete mess. Or as Peter Jaszi, law professor at American University and an adviser on copyright issues to the Library of Congress said, "No one is entirely sure," if anyone can copy anything. But one thig is certain, the courts have never felt bound to Section 107, accept as a guild line, and the Sony Betamax case clearly demonstrates that courts give rights to users to make personal copies other than 'exclussive rights of the copyright owner'. And they do this on the highest level of Judicial review. Congressman Frank Berman clearly stated at the HR 5511 hearings that nobody would suggest that anyone couldn't make a copy for someone and give it to them. He swore that nobody is saying that. And he is for breaking into individual' computers to protect copyrighted works.
That leads us to third Area concerning Copyright and Fair Use, which is policy and legistlative agenda. This question, as well as NON FAIR USE questions in regard to copyright is where we mostly get into disagreements. What ever fair use is or isn't, there is no denying any longer that the questions of copyright control has now forced itself directly onto the 4th, 5th and 1st ammendments in a fashion can no longer be denied.
While we can get into a theoretcial question in regard to copying copyrighted works, no one ever claimed that anyone can enter your home and steal your blank tapes, plain paper and pens. This would be considered a clear violation of individuals private property and is beyond the scope, in all court cases, or copyright. Furthermore, the supposition on the part of Alex that libraries are legal only because they have fair use exemptions under 107 is laughable, except that I think he's serious. Libraries are protected under freedom to assemble, freedom of speach, state's rights, and private property. Congress would not be able to create or pass any laws which would make libraries illegal, any more than they can pass a law making public education illegal, or radio stations illegal, or museums. Libraries are just legal, period, under the 1st ammendment, and the right to assemble. They are also the supposed benficor of the Copyright law whose main purpsoe is to fill libraries with published works. Congress could not pass any law which would end libraries, let alone privately held archives. But just for fun see this:
Quality King
Distributors, Inc. v. L'Anza Research Int'l, Inc., no. 96-1470 (Mar. 8,
1998). (c) The Court rejects L'anza's argument that Sect. 602(a), and
particularly its exceptions, are superfluous if limited by the
first sale doctrine. The short answer is that this argument does
not adequately explain why the words "under [Sect.] 106" appear
in Sect. 602(a). Moreover, there are several flaws in L'anza's
reasoning that, because Sect. 602(b) already prohibits the
importation of unauthorized or "piratical" copies, Sect. 602(a)
must cover nonpiratical ("lawfully made") copies sold by the
copyright owner.
Gee - once it's sold, you mean it's sold?
And therefore you can lend it to somebody else....
The third problem is that we discuss Fair Use very loosly and forget we are discussing legistlative policy and our agenda.
Yes - it's pretty clear that the Supreme Court has approved Video Tapes for Time Shifting. But Time Shifting is not mentioned in Section 107. It completely comes out common law and is extrapulated by two factors which have nothing to do with 'Fair Use' as defined under Section 107. It comes from the basic prinicple of American Law, etched into the Constitution, that ALL WORKS are owned by the public and ALL COPYRIGHT ISSUES are subjected to the basic principles of our Bill of Rights. And this is where the battle is. We can talk about Copyright Law all we want, and the Bern Convention and the WIPO agreement, but they can not be exchanged for the soverveirng law of the US Constition and the Bill of Rights.
Both Congress and the Courts make very short work of the entire Copyright Statute when it chooes to because it is LIMTED, not by fair use, but by Constitutional Constraints.
Hence, in the Texico Case, The case turned, not because a single researcher made some peronal copies, but the case was turned because damn copies weren't guininely personal, but was for the profit motiviation of the Company, which they made a lot of money on, as the facts disclosed. By emphasising the commercial nature of the copying for the persuit of business, a very rich one at that, it reckonizes that a Average Joe, for his own personel education, knowledge, what have you, could have made that copy without violation, NO PROBLEM.
NY Fair Use's position is not that Fair Use, as an exception to
copyright, is the legal basis for copying in the home and sharing
of files, which despite 107 is widely accepted in the courts ie: The
Texico Case, and in Congress: IE: Comments at the DMCA hearings
and at the HR 5211 Hearings, with the betamax case, etc etc etc
But what we're saying is that legally today these rights are
exclussively, more exclussively that even Copyright, retained by the
public through it's rights under the 5th and 4th Ammendments. It
can be NO OTHER WAY. Furthermore, NY Fair Use's position is that the
change in techology today is such that issues which were not in focus
in regard to copyright and the publics right to private property, are in
clear focus today. We would need to suspend the Constitution, strip
everyone of their legal right to private ownership of information media,
and prevent their freedom of speach to boot, in order to enforce
Copyright Law under 107 strictly on the digital plane.
In addition, even if we agreed that exclussive Monopoly was the Alex
Pilotsoft version, one not supported by the courts as demonstrated
above, you would still have the overwhelming problem of DUE PROCESS,
WARANTS and the prinicple of Innocent Until Proven Guilty. Therefore, we
proposed a Fair Use Bill to protect the public from a digital tyrany
worthy of George Orwell. We want a Bill which shifts the burden of proof
squarely on the copyright holder to prove that a violation is not ONLY not a
proivsion under fair use and Section 107, but that it also doesn't
infringe on the property rights of the individual citizen. In this regard
individuals are given a clear protection under the law. they have ownership
of property, even copies of copyrighted works, which they can share with
others in the course of their normal, non-commercial activities.
And finally, we want to clearify the 'fair use' law to legistlatively change
it from an exception to copyright, to what it truely is under common law
and common SENSE.
We want the law changed so that Fair Use is derived from the Bill of Rights,
and for Congress to say clearly that Copyright is an exception to Fair Use.
This is, after all, what the public MEANS when it says 'Fair Use'. This
was even what Congressman Weiner ment when he was talking to me about
fair use, and he isn't even aware that Alex, Hillary Rosen and Jack Valenti
use this term to mean something completely different...more in line with
section 107 (and 108 btw).
Ruben
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Fair Use -
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