Patrick Ross Spreading FUD on Copyright

by Paul William Tenny

For those who aren't aware, the Computer and Communications Industry Association petitioned the Federal Trade Commission to look into what they believe are deceptive statements made during or after televised sporting events. We've all heard them before, and I've reprinted the one that the NFL uses which was included in the CCIA's complaint (PDF).

"This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL's consent is prohibited.

People who understand copyright law know that this statement is made for the legal benefit of the copyright owner, which they can use as evidence of willful infringement in court, a legal distinction that triggers much higher fines than normal. They also know that it's not true. Copyright law (17 U.S.C 107) has exemptions called "fair use" that allow the public to use copyrighted works without the owners permission, so long as they meet some of those exemptions. The heart of the CCIA complaint is that these legal statements go further than confusing the public - they are outright lies.
This part of the statement specifically is not true: "Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL's consent is prohibited." In reality, you can use portions of the telecast, pictures, descriptions, and accounts of the game freely and legally without their permission. It's right there in federal copyright law.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

I remember a woman whom I believe was a law professor that captured one of these statements made after an NFL game (only the copyright statement mind you, not any part of the game itself) and uploaded it to YouTube with the intent to educate people about the inaccuracies of the statement. This is precisely what fair use was intended to allow, and in a rather mind numbing instance of ignorance, the NFL sent YouTube a DMCA takedown notice claiming that the clip violated their copyright.

(That story gets worse, where because that professor was well aware that her use of the clip was legal, she filed a counter-notice which allowed the clip to go back up on YouTube. The NFL sent a second DMCA takedown which resulted in the clip being taken down a second time, and that is something the DMCA specifically does not allow. Once a DMCA has been countered, the only legal option open to the copyright holder is a lawsuit, and the DMCA specifically says this in its text. It is entirely possible and quite likely that not only was this woman well within her rights to use the clip, but that the NFL violated federal law in trying to get it taken down a second time.)

I don't know what, if any, impact the complaint by the CCIA will have, but their cause is a just one. These statements are so far beyond what is true that I believe they rise to the level of outright fraud. So this is what has been happening over the past few weeks, and fast forward to yesterday when the executive director of the Copyright Alliance, Patrick Ross, files an op-ed of sorts on C|NET.

Despite the fact that we've been reading and hearing these copyright notices for decades, in CCIA's view, Western civilization is now suddenly in jeopardy. Corbett made the same argument CCIA's president offered at the press conference announcing the FTC filing: "If we were to believe what they tell us, discussing Barry Bonds' home runs around the water cooler would put us all in jail."

Really? The last few weeks I have been completely unable to avoid hearing about Barry Bonds, whether around the proverbial water cooler, on call-in sports radio programs, in idle moments on 24-hour cable news channels, or even during local weather reports ("there's only a low chance for a rainout for tonight's game, and Bonds could have a bit of a boost--a natural one, not artificial--for that next home run with a strong 15-mile-per-hour wind from the east; we'll keep you posted, Ken"). Sometimes I wish speech about Barry Bonds could in fact, be stifled.

If you ignore Ross' pointless sarcasm which adds nothing to the debate over these deceptive practices, what you read in this passage is actually quite revealing about the issue. Scroll up and read the NFL's statement again, the part where it says that you can't copy or recount any descriptions of the game without the permission of the NFL, and that if you do, it's a de facto criminal offense. When I read that statement, the CCIA's argument even if a bit facetious is spot-on.

While the NFL won't be suing you for talking about it any time soon, that doesn't change the fact that this is precisely what they threatening to do in that statement, which I think is both wrong and unnecessary. But let's move on to the more deplorable claims in this "defense."

But let's look beyond the hyperbole. CCIA has offered no demonstration of harm caused by copyright notices; if they had any they would surely have included it in their FTC filing, but it's eerily silent on that point. So what do they really want? They say they want additional wording explaining ways copyrighted works could be used without authorization, because fair use is a "consumer right."

Fair use, as CCIA must surely know, is not a "consumer right," but rather an affirmative defense. And this is an important difference.

As I've already pointed out, fair use is in fact not a consumer right, but neither is it an affirmative defense. It is a legal right codified in the law - the right to use a portion of a copyrighted work without permission for non-commercial use. If the NFL statement wasn't worded the way it is, this wouldn't really be an issue. I don't think the CCIA or anyone else really thinks the company should be forced to tell everyone about their own fair use rights. What we're dealing with here is the additional information correcting a deceptive statement, and I think in this case, that certainly benefits the public and costs the NFL and other rights holders absolutely nothing to do it.

It is also important to understand that while the NFL and Ross throw around the word "criminal" with abandon, copyright infringement is for the most part a civil offense. This is why you get sued by the rights other, as opposed to being indicted by a district attorney, as you would be for other criminal offenses. The thought of going to jail is certainly a better deterrent than the thought of a fine that maxes out at $150,000 per infringement, but it is extremely unlikely in almost every case.

Criminal copyright infringement is mostly reserved for when people are obviously trying to profit from their willfully actions, such as recording a film in a theater with a camcorder, or running a FTP site with hundreds of movies and thousands of video games - all pirated. I am not aware of a single instance in the United States of a file sharer (for instance) being criminally indicted.

Copyright owners want to scare you into compliance with the law precisely because they have so few tools available to them in terms of eliminating infringement on a mass scale. Unfortunately, statements such as the one the NFL uses take so much liberty that they are more an act of fiction than a reflection on the law, and your rights granted by them.

So no, the world isn't in danger of ending because of these statements, but that doesn't mean they aren't a borderline lie and damaging to the public. Not only is the CCIA's complaint valid on its face, it should be acted upon by the FTC. The NFL and other sports leagues shouldn't be forced to tell people about their rights under the law because it is their personal responsibility to be educated on those matters, but they shouldn't be allowed to deceive the public either.


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