Copyright Talk

Oddly, there hasn’t been a lot. Not yet, anyway. A number of outlets are reporting the story now, and a number of blogs have mentioned it, but without a whole lot of opinion. So I went to the Hollywood Reporter, which I figured was as good a place as there could be to find strong reactions. And there it was.

NBC Universal is quoted as saying the complaints by the Computer and Communications Industry Association, (CCIA) which is a coalition of a number of companies including Google, Microsoft, and Yahoo, are nothing more than a publicity stunt fueled by frivolous complaints. NBCU goes on to criticize the companies for taking this tactic rather than working together with the media companies to combat what NBCU sees as the monumental threat of piracy.

The Wall Street Journal Online is reporting today that a complaint is about to be filed with the FCC asking that copyright warnings placed on rental movies, sports broadcasts, and other media be required to give full disclosure of all the exceptions to copyright that may apply. Or something like that. The argument by Google and others is basically that the typical warning given - that no copy or use of the material may be made without prior written permission - is misleading because it doesn’t mention that a “fair use” doesn’t need any permission.

According to the Journal, a suggestion is made that warnings be required to include the phrase “except as permitted under Section 107 or 108 of the United States Copyright Act.” Now color me cynical, but if Google believes the average person reading the current warnings won’t know that there may be more to the story, then why do they think people will be able to make heads or tails of the reference to the copyright code? It’s true that the phrase above does at least give the impression that sometimes you can make a copy, but my guess is that hardly anyone will actually look up the sections, if they can even figure how to do so. Furthermore, the exceptions listed in those sections have been interpreted and clarified by numerous court cases. Should the warning also list the landmark fair use court cases?

The greater question for me is whether these companies actually have an obligation to include a statement that their copyright does have statutory exceptions. The question has applications in other areas, too. For instance, when a property owner posts a “No Trespassing” sign, do they have an obligation to define “trespass?”

I think the warnings that merely say no use or copy can be made without prior written permission are in fact misleading, because that’s simply not true. But I would hate to see regulated warnings, especially ones that don’t clarify the situation at all. If I were writing a warning, I would say “This material is protected by United States Copyright Law, and may not be copied, rebroadcast, publicly shown or otherwise reproduced except as allowed by law or express permission of this company. ”