Copyright Talk

There’s a saying among lawyers that bad facts make bad law. The point of the saying is that courts and juries really do try to be fair and just most of the time, and sometimes the facts of a case are just so bad that the court will try to make sure justice is done no matter how much the law has to be “twisted’ to get it done. But then you’re stuck with that twisted law the next time around.

I worry that the corporate copyright crusade will wind up causing some bad law. What is percieved as greedy overreaching by enormously wealthy corporate giants in trying to shut down copyright infringements may eventually cause the loss of some rights under copyright law. And that would be a shame.

I was reminded of this reading a story from Ireland about an attempt to collect royalties from nursery schools for showing movies owned by Disney and other big Hollywood studios. The story is here. The schools - called “playschools” in Ireland - were offered a single fee blanket license for each year, which would cover unlimited movie showings. This is the same type of license ASCAP and BMI grant to bars and restaurants for the use of recorded music in their establishments.

Legally, there is little question that showing studio movies in the schools is a public performance, and nearly all videos and DVD’s sold expressly say that the purchaser of the video or DVD does not have permission to use it for a public showing. The problem is, most people commonly believe that schools are, or should be, exceptions, and that showing the movie without charging money is, or should be, an exception. Even though neither of those things is true, people often operate on those incorrect assumptions, and there is a collective feeling of being “picked on” when someone like Disney comes knocking and tells you that you can’t do what you want with your property, even though you feel like you’re not hurting Disney in any way at all.

In the days before video cassettes, the problem rarely existed, because the cost of purchasing films was prohibitive for most individuals or schools. So if you wanted to show a Hollywood movie at a school, you rented it from a service, and the rental included the permission and royalty payment to actually show it in the school. So while schools that show movies had always paid the royalty prior to video cassettes, they didn’t really know it. So when videos, and now DVD’s, came out, it felt like they were just being cruelly picked on for showing the video that they had lawfuly paid for.

It’s difficult for most people to truly grasp the concept of owning an object while not owning the right to do anything you want to with it. Especially when it seems so difficult to try and do what you’re told you should do - have you ever tried to figure who to call at Disney to ask if you can show your copy of Lion King in your kindergarten classroom?

If the tide of public opinion continues to view lawful activities as overreaching intrusions, I fear we may begin to make bad law.