[PLUG-TALK] Revolution OS, Napster, and Fair Use (part 2)

Jeme A Brelin jeme at brelin.net
Wed Mar 20 12:52:22 UTC 2002


On Wed, 20 Mar 2002, Dylan Reinhardt wrote:
> OK... so the big issue: is all non-commercial copying covered under
> Fair Use?  Reading the Fair Use section of the CFR, it is apparent
> that Fair Use is determined by four criteria:
> 
> 1. The nature of the usage (for profit or non-profit)
> 2. The nature of the work (whatever that means)

The nature of the work has something to do with allowing flexibility in
the case of parody and public information.

> 3. The amount of work used (percentage copied)
> 4. The financial impact copying has on the value of the original
>
> These are my summations, the actual wording is here:
> http://www4.law.cornell.edu/uscode/17/107.html

You're confusing the codified Fair Use doctrine with common law fair use.  
This is what's called a "balancing test" where the interpretation of the
law is done in a way that attempts to balance freedom and security,
fairness and the status quo.  These "tests" are used by judges to sort of
quantify something that is otherwise subjective.  It's kind of a sham
because any one facet of the test can be deemed to overpower the others
subjectively at the court's whim.

> Deriving no commercial gain from making the copy is a clear
> requirement.

That's not how the test works.  You don't have to meet four
requirements... not at all.  Each element is considered on its own.  For
example, the work of sample-based artists is itself both commercial and
copyrightable without consideration of the copyright holder of the sampled
work.  Not-for-profit status is not a requirement, it is merely one
measure of fair use.

> But is that, alone, sufficient to satisfy Fair Use?  You appear to
> believe it is and I think it's clear that it isn't... so here we go.

Non-commercial copying and sharing between individuals is always
non-infringing.  The 9th circuit backs me up on that much.

However, I go further and say that all non-commercial copying and
distribution is legal.  Of course, I'm also going to be the first to say
that every revision of the Copyright Act since about 1840 is
unconstitutional.

> Let's take the hypothetical example of a small, independent film
> company that makes a stirring documentary about geek ethnography.  
> Let's further stipulate that the film doesn't suck: geeks want to see
> it and a small, premium cable channel specializing in indie films
> wants to show it.  With me so far?
> 
> What financial value does this film have?  To its makers, it has a
> value roughly equal to the number of tickets they might sell to it
> plus rebroadcast fees minus distribution costs.  To the small cable
> channel that buys the right to broadcast it, the movie has two kinds
> of financial value: it may serve as an incentive for non-subscribing
> geeks to become subscribers. It may also help retain existing geek
> customers who were about to cancel their subsciption and roll that
> dough into the new Star Trek Channel.  The theaters who book this film
> also have expectations of benefitting from showing it.

OK.  I don't see the relevance of this, but fine.  I would say that the
value is solely the value of the film to the owners of the film and the
value to the cable channel (and Sundance is a joint venture between Viacom
and Vivendi/Seagrams... hardly a small anything in the corporate world) is
just part of the value to the owner of the film via licensing
opportunities.

> So the film has financial value to several parties, some of whom are
> actually responsible for the film's existence.

No, the film has financial value to the owner.  Others might use the film
for financial gain, but the value of the film is what the owner can get
for its use.

> Making unlicensed copies causes harm to those expectations, and thus
> to the real value of the film.

I don't think you can make a statement like this out of hand.

Do you have any evidence at all that non-commercial copying amongst
individuals impacts the commercial value of a work?  While this was always
put forward by the copyright industry as common sense, the numbers that
have been collected relating to this point actually DISPROVE that theory.  
Napster's traffic summaries combined with Soundscan CD sales data showed
that the music most transfered via Napster corresponded roughly with the
best selling artists of the day and sales of new works by those artists
actually EXCEEDED industry expectation despite common sharing via Napster.

You WANT to say that non-commercial copying and distribution between
individuals impacts the value of a work, but there's no evidence
supporting that.

> Copies of this film are also likely to comprise 100% of the original
> material.

Yup.

> If one were simply distributing 10-minute "teasers" for the film, you
> could easily make the case that such copying actually *increases* the
> value of the film itself...

I think the numbers show that distributing THE WHOLE WORK increases the
value of the film itself.

Ever watched a movie you own on video on cable?  I know I have.  And in
the days of audio cassette dominance, oftentimes I'd go out and buy a tape
that someone had copied for me earlier.

Heck, look at every commercial artist that actively supports tape trading
and circulation of copies among fans.  There would have been no demand for
Mystery Science Theater 3000 at all if not for the circulating tapes (each
with the demand in the closing credits "Keep the tapes circulating!").  
Phish, The Grateful Dead... are these artists' profits DAMAGED or IMPROVED
by ceaseless non-commercial trading?

No one has ever successfully shown that non-commercial distribution by
individuals has damaged the value of their work.

> or in any case, certainly doesn't diminish it.  But distributing
> copies of a film in its entirety gives away what would otherwise be
> for sale.

Again, your claim that this damages value is unsubstantiated.

> Which brings us back to test #1: the nonprofit, educational,
> scholarship, or research value of making the copy.  Here, things get a
> bit murky.  It's clear that when a school makes a copy for classroom
> use, that's education.
>  But is "education" so broad a concept that simple *curiosity*
> qualifies?

Yes.

> I'd really like to see what's in the film, but does that automatically
> qualify my desire as scholarship?

Why not?

> If I'm curious what you have stored on your hard drive, should I just
> hack into your computer and make myself a copy of your work?

If educational use was considered a valid exception to private property,
yes... but it's not.

> I'm certain it would be educational.  Remember, *unpublished* works
> are covered by the same standards as published ones.

One of the many failings of the Copyright Act of 1976 and the Berne
Convention... but it's not the copyright that makes your cracking my
system illegal.  Let's not confuse the issues.

> I would argue that watching a movie to see what's in it is the kind of
> activity that would normally be associated with the movie's commercial
> release.

Well, that's the problem, isn't it?  It is not in the public interest to
prevent the spread of information and yet the law, whose purpose is to
protect the public interest, does just that.

The fair use doctrine is an attempt to retain public rights to simple
activities like sharing information and educating one another.

Here's where I'd usually go into my spiel on the TRUE INTENT of copyright
(which has nothing to do with profit... and certainly doesn't cover music
or entertainment), but I'll save that until you ask to hear it so as not
to muddy this argument.

> As such, it's tough to make the case that viewing it in a theater is
> commerce, but viewing an unauthorized copy is education.  

Viewing in a theater is education, too... but it's commercial education.

There's no dichotomy there.  It can be both.

> Particularly given the fact, in this case, that the filmmakers are
> making copies of their film available for sale in VHS and DVD formats
> (http://www.revolution-os.com/page1.html).

I don't see how this matters at all.  As the copyright holders, they have
the exclusive right to make the work available commercially.  This is the
only right we, as individuals, give up in order to get the work into the
public domain at the end of a limited period of time.

J.
-- 
   -----------------
     Jeme A Brelin
    jeme at brelin.net
   -----------------
 [cc] counter-copyright
 http://www.openlaw.org





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