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February 03, 2006

How Far Does “Fair Use” Go

Can file swappers legally download content they already own?

 

 

Howard Stern, Sirius, and would you believe the FCC are now going after folks pirating his shows by swapping files on the internet and even hijacking unused radio bandwidth in New York City to broadcast his show for free. Of course, I can agree with and see why the FCC and the Sirius legal department would see the need to get involved, but I sense a touch of irony here.

 

Curiously, one website illegally offering Stern took the step of stating that the copied shows were only intended for paid subscribers to Sirius, who were licensed to listen to Stern. The site’s failure though, among other things, was that there was no way in which to verify who was really downloading and listening to the material.

 

I’m not quite sure why anyone would choose, frankly, to pay for Howard Stern’s show to listen to it legally, let alone listen illegally for free. Howard should pay his listeners to do him the service. While I don’t condone pirating, I do find the whole thing terribly ironic that the same guy who championed the anarchist is suddenly feeling a change of heart now that he is the one who is being negatively affected by his ideas. This to me is the classic example of the self-centered school house bully, and I think in some sense he’s only reaping what he’s sown.

 

But it brings up a whole interesting discussion much more interesting than Howard Stern: What about the fair-use copying of music or other media among users who already possess a legal licensed copy in some form or fashion.

 

Take for example, if I owned a legal recording of “You Ain’t Nothin’ But a Hound Dog” by Elvis Presley on vinyl. It's been accepted that for me to copy that record onto CD, tape or mp3 for my own personal use in the United States, it is perfectly acceptable under the concept of fair use.

 

In other words, I’ve already paid for the privilege of owning a copy of that song, and it doesn't matter by what means I choose to hear it.

 

So if it's acceptable for me to copy a song I've already paid for to CD, tape or mp3, why would it suddenly be unacceptable under fair use for me to have a friend, who also owns the same song make that transfer for me. Now to extend this a bit farther: If a friend, why not a stranger, say, over a file sharing service. Again, I've already paid for the song, but since someone else who may be more technically inclined has already ripped it to mp3, saving me the hassle, I'll use their copy instead of figuring out how to do it myself, provided there’s means to verify or at least reasonably and non-anonymously assert ownership. Same song, same version, same artist.

 

This is the question, I think, that RIAA, and other intellectual property absolutists need to address and one I think raises further questions as to whether it is fair or just for anyone to consider legislation to blindly punish everyone who shares or downloads music from sharers under any circumstance. That said, perhaps someone who’s creative out there can come up with a way for users to verify that they have the right to download a given media file, thus creating an environment that does not financially harm the copyright holder. I bet that someone stands to make a mint. They might even be able to find a way to charge a fee for the labor of ripping – as many brick and mortar businesses do to transfer video or audio to new formats for you.

 

But can we expect the recording and entertainment industries to address the issue fairly? If prior performance is any indicator, probably not. The Supreme Court found in 1984 that the copyright holders of certain television programs had overstepped their bounds in suing Sony for its production of the video tape recorder. The copyright holders attempted to squelch fair use and were willing to cut off their own nose to spite their face to do it in that had they won, VTR production and use would have been severely limited. This would have negatively affected the growth of the television viewing audience the copyright holders had a vested financial stake in increasing. And certainly, 22 years of hindsight upholds this fact.

 

In citing a lower court decision as part of the basis for its own, the Supreme Court reiterated that,

 

…[N]oncommercial home use recording of material broadcast over the public airwaves was a fair use of copyrighted works and did not constitute copyright infringement. It emphasized the fact that the material was broadcast free to the public at large, the noncommercial character of the use, and the private character of the activity conducted entirely within the home. Moreover, the court found that the purpose of this use served the public interest in increasing access to television programming, an interest that "is consistent with the First Amendment policy of providing the fullest possible access to information through the public airwaves. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102." Id., at 454. [n8] Even when an entire copyrighted work was recorded, [p*426] the District Court regarded the copying as fair use "because there is no accompanying reduction in the market for ‘plaintiff’s original work.‘”

 

Since the viewer watching programming on public airwaves is granted, in effect, a license to view the programming (though actually, the viewer has the right to view any unencrypted programming broadcast in such a fashion), it has been largely understood to follow that it is not dissimilar to the person who has been granted a license to view or listen to recorded material by the lawful purchase at some point or time of the material in one medium or another. It seems the two are similar and therefore one could be substituted for the other, and have.

 

But probably the matter of legitimate file-sharing is also a bit akin to the issue still raging in many corners as to whether the 2001 Digital Millennium Copyright Act went too far in prohibiting under any circumstance the decrypting of encrypted material whose copyrights have expired or whose currently copyrighted works also contain non-copyrighted material, effectively nullifying the portion of Article I Section 8 of the constitution dealing with patent expiration: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…” But that act (the sweetheart of the entertainment industry) is also seen by many as infringing on fair use.

 

If the file-swapping issue were to be compared to another hot-button issue – the banning of abortion – I think fair use could reasonably be seen (in certain key functional aspects) as the rape or incest exception argument. That’s to say, while a party seeking to ban a certain behavior is right in doing so – presently 99.3% of the time, a reasonable and well-crafted prohibition will also include an exception for instances falling under certain narrowly tailored circumstances. Failure to do so might turn honest and faithful customers into bitter, battle-weary pirates in the eyes of the law – something not good at all for the bottom line or our Constitution.

 

Presently, just like many in the television industry in the 1970’s, the recording industry et al is still on the war path and doesn’t seem to be as much interested in its long-term bottom line as it is in control, and that probably is in no small part thanks to the legal departments of that industry trying to find any way to justify a gluttonous existence.

 

Posted by Martin at February 3, 2006 08:26 AM

Comments

Posted by: beautifulatrocities at February 3, 2006 11:55 PM

Posted by: Martin at February 4, 2006 01:42 PM