Will Rodger is tech policy old school. I remember way back in '97 or so when I would fly out to DC and sit down with Will, the tech policy journalist, to spin yarns about TechNet -- then, the new kid on the block. Will was one of the few DC reporters at the time who actually understood technology and could work his way around a Netscape browser with ease.
After covering many industry fights at a reporter, Will has been directly involved in his fair share of skirmishes since joining the The Computer & Communications Industry Association (CCIA). And, as director of public policy for the group, he has an interesting new battle on his hands that goes directly at some big players.
that it has filed a Federal Trade Commission complaint on behalf of consumers against Major League Baseball, the National Football League, NBC/Universal and several other corporations. CCIA alleges that the named corporations have misled consumers for years, often misrepresenting their rights through deceptive and threatening statements.
Y'know, statements like this:
Here's how the New York Times covered the CCIA's move.
We thought it as good of time as any to drop 3Qs on Will about the Defend Fair Use campaign... (the Qs and responses after the jump...)
1) How do you respond to folks like NBCU who say "At a period of such incredible technological development, CCIA could be a serious and constructive participant to assist those efforts and to reduce the tidal wave of wholesale, illegal distribution of copyrighted content. Instead, it apparently prefers to irresponsibly waste taxpayer dollars by filing a frivolous complaint for the sake of little more than publicity?”
Our complaint aims to do one thing only: assure that copyright holders do not mislead customers into thinking that they have no rights beyond those the rightsholders deign to grant them. When consumers spend their own money on copyrighted materials, they also pay for certain rights guaranteed them by statute and case law, things called Fair Use. Those rights involve -- by definition -- things that consumers can do without asking permission of the copyright holder. We think it would be helpful to everyone if all content holders admitted that Fair Use exists rather than claiming more than they have rights to.
You might think that publishers and folks like NBC Universal were trying to describe copyright law when they wrote these notices. These notices do not do that. They ignore fair use in its entirety Now, I’m sure that the attorneys at NBC Universal and CCIA disagree on where Fair Use starts and ends, but everyone agrees that there is such a thing as Fair Use and that content owners are not the sole arbiters of it. So – if these notices do not describe Fair Use, why do they appear at all?
Frivolous is not the word I would use to describe our complaint. I’m fairly certain it isn’t the one that famed jurist Richard Posner would use, either. Posner suggests that people who do what we object to might well lose their copyright entirely were he deciding such a case. Below is what he has to say about copyright notices like the ones we cite in our complaint:
“The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright's breadth. Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS film recording. The notice will almost always state that no part of the work can be reproduced without the publisher's (or movie studio's) permission. This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn't know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit...
...“What to do about such abuses of copyright? One possibility, which I raised hypothetically in my opinion in WIREdata, pp. 11-12, is to deem copyright overclaiming a form of copyright misuse, which could result in forfeiture of the copyright. For a fuller discussion, see the very interesting paper by Kathryn Judge, not available online but obtainable by emailing her.” (from a 8/04 entry on the Lessig Blog)
2) Have you received any feedback from sources at the FTC yet on the filing and how do you predict the process will play out with the commission?
The FTC is one very tight-lipped place: Their specialty is law enforcement, after all. We raised the complaint with some very highly placed officials there before we ever filed. None of them called it “frivolous,” and all of them encouraged us to file so that they could weigh the merits.. I won’t make any predictions, but the Commission has repeatedly penalized companies that stretched the truth far less than these content companies have. The brevity of statements from the other side, we think, shows that we’ve hit a serious nerve.
3) What do you think this effort means in terms of the tech industry playing offense on copyright issues inside-the-beltway?
We’ve let the other side play bumpersticker slogan for too long. Let’s just say we’re sharpening our putty knives and looking for a few more vehicles to scrape clean.
Thanks for the quick response at the end of a busy week, Will. (BTW, nothing gets our engines going like a putty knife fight.)
Two more anecdotes on the issue before we leave you for the weekend. One guy actually wrote into Major League Baseball to get permission to watch a taped game at his house party. The MLB response that really says it all:
In response to your written request, dated September 9, 2005, we gladly grant you permission to use the tape of the 1995 Seattle Mariners Game 5 win over the New York Yankees at your house party.
Footage Licensing Coordinator
Major League Baseball Productions
And, apparently, in an attempt to show her students how the NFL's copyright warning goes overboard, a respected professor posted it to YouTube. Like Bill Romanowski on a bender, the NFL shot through the gap and sent a DMCA takedown notice to YouTube requesting that the copyright warning be removed. (Though, not surprisingly, the CCIA managed to find a NFL example on YouTube and posted it to the campaign site under their "Abuse of the Week" section.)