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March 2, 2005
Media Profs on Grokster: Don't Forget Fair Use
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Siva Vaidhyanathan and his fellow media studies' professors have filed their brief in the Grokster case [PDF]. They argue that the Betamax rule has protected more than the freedom to create new copying technologies. It has also protected the activities that these technologies allow -- namely, the fair use of copyrighted materials.
Excerpt:
[Both the Supreme Court and Congress] acknowledge that teaching and research often require the unauthorized copying, distribution, re-fashioning, and performance of copyrighted works without permission from the copyright holder, and thus have cleared a space within the strictures of copyright law to allow for such publicly beneficial uses. The foundation of that space is "fair use," which, though an affirmative defense to the accusation of infringement, has granted educators a certain measure of comfort that they would not be sued by copyright holders for infringement. However, the penumbra of perceived "users" rights' that emanate from Sec. 107 of the Copyright Act has proven inadequate to protect many important acts central to teaching and research. ...Peer-to-peer technology is not functionally distinct from other, more familiar, less demonized methods of resolving communicative processes such as sending e-mail, creating hyperlinks, and employing search engines such as Google.com. All of these functions potentially (and commonly) infringe the copyrights of others. ....[We] wish to encourage the Court to consider that Sony did more than legalize home taping and "time shifting." It democratized participation in the project of recording the collective memory of this dynamic nation.
I'm delighted to see this beautiful articulation of why keeping copyright law and policy balanced is so important to our culture. But from Siva I expected no less.
Comments (2)
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1. Rik Lambers on March 2, 2005 10:52 AM writes...
Eben Moglen has filed his brief on behalf of the Free Software Foundation and New Yorkers for Fair Use. A PDF is available through his blog.
Permalink to Comment2. Neo on March 2, 2005 12:00 PM writes...
Of course, betamax or no betamax, fair use (and limits on copyright terms) are effectively moot due to the combination of DRM and the DMCA. The DMCA must be destroyed, and fair use as a defense must become available to people of limited means. Making a judgment against the plaintiff in an infringement suit on the grounds that the defendants' use was fair reverse the statutory damages so the plaintiffs have to pay what they'd have gotten had the judgment gone the other way would be a start. It would deter frivolous claims and filing crapshoot suits -- just the likelihood of the use being found to be fair would take the wind out of a big IP lawyer's sails. Blatant for-profit pirates and bootleggers would still be safe game to go after, but suing students whose parody videos use clips from your film would be a bad idea. Of course, you might think students wouldn't have much money to try defending with, but if the use looked fair they would have no trouble finding a lawyer willing to take their side and pay their side's expenses in return for a cut of the money if their side wins. Such lawyers would spring up like mushrooms smelling profit in the wind, given the amount of dubious and frivolous copyright lawsuit threats tossed about these days and the (hypothetical) potential of the damages being reversed if the suit is found meritless, and the copyright holder is found to have known it was meritless.
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