Listen very carefully to the copyright statement in this clip. Thinking about discussing last weekend’s game with family and friends? The NFL clearly states that viewers cannot talk about the game to anyone without permission
Insane statements like this, and others, are the target of a FTC complaint by the Computer & Communications Industry Association, a group backed by Microsoft, Google, Yahoo, Oracle and a range of other leading tech firms (full list here). The complaint argues that statements made by groups such as the NFL are illegal and deceptive, as ultimately viewers have rights under the US Constitution by way of Fair Use.
The CCIA isn’t stopping at a FTC complaint alone: they want your support in backing consumer rights to fair use. A new site, Defend Fair Use, has been launched and comes complete with copyright abuse examples and a petition that can be signed in support on the CCIA’s case before the FTC.
For those not familiar with the term, Fair Use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders*, or in laymen’s terms it allows anyone to use a clip, extract, or part thereof of copyrighted material in our own works, for example quoting a book in a blog post, displaying a snippet of a presidential debate in a video etc. The concept of Fair Use is based on free speech rights provided by the First Amendment to the United States Constitution. The Commonwealth equivalent of Fair Use is Fair Dealing.
There are any number of causes floating around the tech industry. The more left wing inclined may support movements including Creative Commons; many of these movements tend to be anti-copyright. The fight for Fair Use is not one that is anti-copyright; fair use does not disown copyright nor seek to overthrow it and replace it with some sort of Utopian socialist vision of a free for all where content creators would no longer be able to own their works. Fair Use is about allowing, as the name suggests, fair use of copyrighted materials in a free and open society, be that by the press or by content creators such as bloggers and others. It’s a noble cause, if only because the alternative is absurd. Would we want to live in a society where you would need permission to discuss a football game due to copyright restrictions?
Those interested in signing the petition can do so here.
(in part via Ars)
A noble cause… Uhm, ok…
So would you be so “noble” to let me use your car whenever I want it ?
Or, talking in terms of intellectual property – if you spent nights and days programming a software, would you be so “noble” to allow anyone to use it without paying a penny?
This is a serious question, Duncan.
BTW, you should stop spoiling this great blog with your political views and get back to what it’s all about. Tech News.
“Would we want to live in a society where you would need permission to discuss a football game due to copyright restrictions?”
lol. I’m sure there is a terror alert reason for the restrictions. I believe we might be on alert orange right now or something. Or maybe…just maybe….what is really behind it all is good old fashion greed.
Good post.
There is also a possibility that the legal departments of these companies are being ultra conservative in not leaving any opportunity open in case there is litigation and someone brings up a technicality loopehole as a defense.
Freeform5
Fair use affects every single blog and blogger out there. If fair use didn’t exist I couldn’t quote a major news story in a post because it would be subject to a strict form of copyright that was owned by the source.
Fair use doesn’t allow me to use your car, but it would allow me to take a picture of it if it was parked in a public street. If you think I’m arguing some sort of hippy utopian ideal that I should be be able to use your car at will you should read the post again, I’m clearly not, and I think as a cause that this goes well and truly beyond politics.
FreeForm
How is the blog getting spoiled? Isn’t it about how tech companies are responding to this issue?
“Insane statements like this, and others, are the target of a FTC complaint by the Computer & Communications Industry Association, a group backed by Microsoft, Google, Yahoo, Oracle and a range of other leading tech firms ”
And to your response about letting someone use it without paying a penny. Actually….i think a lot of people would. Maybe a whole revolution might start from it. An “open” kind of scene. We could even call it “open source”. Cause you know “source” is the code and “open” is letting people use it without paying a penny.
Damn. Thanks for reminding me that the Chicago Bears lost the Superbowl.
Tony
did you get permission from the NFL to say that?
Hi Duncan,
It used to be prohibited the use for commercial purposes. But, under these conditions, look at the legal problems of the music industry. We could share music files without no commercial benefit to any part involved with P2P tools. And it was difficult to rule against that.
Although I see and agree to your point, we must admit that it is difficult to make a clear statement of prohibition with Internet in the middle.
This bring us back to the discussion of the Google ads on Youtube. I can see people presenting legal suits to Google for making money out our videos or moving our videos to a commercial free space.
Mario Ruiz
@ http://www.oursheet.com
Well I’m glad copyright laws are slightly more relaxed where I live (Netherlands). Although I feel the whole copyright law needs a major rework. A century old idea of copyright does seem to miss it’s mark in a time where information can be seperated from it’s media and duplicated to near infinity.
Yeesh @ Freeforms! It could be that you didn’t like how Duncan worded it, but I think his point was that whatever your political leanings, if you’re blogging we’re all one big brotherhood when it comes to fair use.
As for the writing style, if TechCrunch could turn into one big “left vs. right” debate, sure, it would marginalize the tech content, but I suspect traffic (and commenting) would increase, not decrease.
Mario #8: I am not sure I understand the point of you bringing up audio/video. If it’s a 30 second audio clip from 4 minute song, it’s fair use. If it’s 3:30 of a 4 minute song…maybe it isn’t fair use, but who the heck wants 3:30 seconds of a 4 minute song instead of the whole song? The video clip in this post? Fair use! The whole Superbowl, or even every play of the game with all the parts between plays cut out: not fair use.
Sure, it’s possible to post the whole Superbowl in 1 minute clips or whatever, but only a dope would watch the whole game that way.
Of course I agree that people will make the whole Superbowl video available via the Internet, but when you consider that it was something that aired freely on broadcast TV and that everyone with a DVR or Media center could record, save and watch for their own use forever, and when you consider that the day will come when almost everyone has a DVR, what will be the value of freely aired broadcast content?
It will take time, and a lot of kicking and screaming by the NFL, but ultimately the NFL will read the tea leaves and just publish the content themselves and sell the advertising for it. It will free up time to focus on selling jerseys (insane profit margins) and prosecuting people who are selling unlicensed knockoffs.
“…this copyright telecast may not be reproduced, copied, spoken or thought of in any way without the expressed written permission of…..”
Funny. I would suggest to the dying Big Media that they say things like “thank yous” and give credit to all the great times they have had, instead of wasting their last dying breaths on this kind of FUD.
I expect the RIAA. MPAA and Steve Ballmer to adopt a similar tone as their relevancy washes away. “…you may not hum this song in the shower until you have paid your yearly RIAA song license…”
Duncan:
I think your first paragraph is an overreading of the NFL’s statement. The statement allows for the ‘private use of our audience’ where the ‘audience’ is presumably any of us regular people watching the game and where ‘private use’ would surely mean you can discuss it and show recordings of it to friends and family.
Beyond that ‘friends and family’ usage, however, they are trying to set groundrules that aren’t a whole lot different from the kinds of groundrules other copyright owners seek: ‘any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited’.
While the NFL has been tenacious about copyrights and this statement comes across as a bit strict, in my reading, this statement of itself does not exclude or preclude Fair Use law which is well established and codified over decades in numerous laws and cases. I don’t think they are writing law here, but rather citing policy. As policy, this seems aggressive, but ultimately fair enough, although I suppose they could add ‘except as permitted by Fair Use doctrine’.
Stepping up a level, I do agree that many big content owners are using aggressive language in an attempt to dampen rampant copyright infringement. I can’t say as I blame them, they’ve got a very serious problem.
At a psychological/PR level, these tactics are something to worry about and there seems a good case to be made for getting them to chill. It’s not right for them to mischaracterize the law.
And to the extent that these well capitalized firms go out and actually sue people who are acting within the bounds of Fair Use, then that’s a problem.
But in terms of underlying law, I think it unlikely that actual restraints on legitimate Fair Use are coming anytime soon. To date, Congress et al have barely acted to help copyright owners against blantant infringement. It would be hard for me to believe that all of a sudden they will not only enforce existing law, but also actually impose significant new limitations on Fair Use itself.
@FreeForm
Is there anything more tiresome than people who persist in comparing copyrights to physical property like cars and real estate? Come on – any 10-year old can see that when you take part of someone’s car you’re depriving them of the use of it, while if you copy part of someone’s song the original owner still has their entire work. Really, this whole “intellectual property” metaphor is pretty misleading and unhelpful. You want to talk about creator’s rights, you should talk about the right to be compensated for their work, and leave the property talk back in the 1990’s law classrooms where it belongs.
Anyhow, bravo to the CCIA for standing up for the importance of fair use.
In some ways, Defend Fair Use doesn’t go far enough. The tagline “stand up for your right to use the content you pay for,” is an understatement. It’s not payment, but the first amendment, that gives you the right of fair use. For example, if you borrow a book from the library or from a friend, you are free to quote from it.
I just posted this and some other comments at my blog, but I’m not sure whether TC pingbacks are working – my week-old ping of a previous post by Duncan never did show up.
Duncan,
You make a solid point here. People fail to realize that there is an enormous difference between intellectual property and freedom of speech (etc). The NFL is not the CIA – we can and SHOULD be able to discuss it freely – publicly or not. It is just information, not technology or art or anything that should be “copyright-able.”
thanks duncan. speak on, and louder too. more people need to be aware of how this affects their daily lives.
props.
Where do you put the concept of fair use in iTunes or 9thX (which allows to sell and resell digital contents)?
I totally disagree with the action of the NFL, because obviously pro-copyright fighters look like idiots now!but thanks anyway for bringing the matter up!
Copyright was enacted to encourage a public culture, not stifle one. Writers in the East found that their works were being taken out West, published under a different name and sold. In court, a Western “cousin” would swear he’d seen this guy writing the book for years. Consequently, Eastern authors were simply passing their new work around among a small circle of friends rather than publish them. This alarmed Congress enough that it devised a way to establish authorship — send two copies to Washington before publishing. It was intended to protect creators from others’ claims to have created their work.
I think the NFL is a member of the executive branch and may invoke executive privilege. The NFL is also a member of the legislative branch as it can cast tie breaking votes so it can’t be subpoenaed.
Did you get the permission of the NFL to post that clip?
“The more left wing inclined may support movements including Creative Commons; many of these movements tend to be anti-copyright.”
The Creative Commons is not against copyright as a concept, but is more against copyright as currently enacted in the laws of the US and EU. The Creative Commons seeks more limited and flexible copyrights–not the elimination of copyright altogether (unless an author would expressly choose to waive such rights on their works).
In the US, the Constitution grants Congress the power to enact copyright laws that last for “limited times.” However, through corporate and other political pressures, those limited times have been increased from 14 (extendable to 28) years at the time of the country’s founding to today where it’s the shortest of 120 years after creation or 95 years after last publication. However, it should be noted, that Congress could further extend these periods at a later time by enacting another law.
Note: Your characterization of the Creative Commons as “left wing” is a bit of stretch. Creative Commons is very much anti-status quo and in favor of individual liberty to produce and copyright works (as the author sees fit) and liberty to make use of copyrighted works when under copyright (through fair use) and post-copyright, when the works fall into the public domain.
Being anti-copyright is libertarian, not socialist.
Socialist would be, like, granting artists monopolies over all copies of information because they couldn’t compete in a free market for copies of information. Trivially, each copy of some information is a different physical thing, and different physical property. But to “help the starving artists” (talk about socialism!), physical property rights are trashed!
@ John #12 – great analysis
Duncan – you are obviously not a lawyer. No where in the NFL’s statement does it limit a fan from talking about a game.
Please Please, I am begging you — stick to writing about Tech Gossip. That is what Techcrunch does best
I wonder about copyrights…I don’t think that it is about being socialist or not…it is about allowing creation to spread and be respected… And copyrights are not all about money…As for fair use, I do agree with John at post number 12, there will be new limitations to Fair Use…
Surely the answer is not a petition but to just take them at their value. Actually ring up the NFL every time you want to mention a game, describe a play or mention it to your friends….
I think Duncan thinks everything ever created from someone’s intellect is not intellectual property and fair game for open use. Songwriters, artists, publishers, movie makers create a product for profit. If you take their product and use it for anything other than for your personal use, ie: making a profit from their work, you have become a thief. There is a notable difference between intellect and intellectual property, which derives from one’s intellect. I don’t see a lot of intellect here, nor do I see a property worth stealing. I am amazed at the movement today whereby people think they can just take what they want because they have the tools to do it. Many works evolve into the public domain , which is he way it should be. I have the right to purchase a song, a book, or a movie. However that only gives me ownerhship of the method of purchase. I may own the physical CD or book and have it in my home, however, I only have fair use of it’s contents, not ownership. If one carries this too far, no one can develope pen source software and sell it to anyone. C’mon folks.get a frickin clue.
I don’t get why people feel the need to bash Duncan or any of the people who write on this blog ? if you don’t like what is being said LEAVE …
I hope the NFL pushes this as far as it can, as hard as it can.
We need to have a goddamn ruling on this for once and for all.
Either we will be able to think about the world around us and talk about it or we won’t.
Let’s have a goddamn war and find out who the winner is and who the loser is.
Athenerve
Probably for the same reason you chose to post your thoughts. Ya know, freedom to think and form an opinion. Or is that just for you? if you don’t like it, perhaps you should leave.
“So would you be so “noble” to let me use your car whenever I want it ?”
- FreeForm5
That’s the most absurd attempt at a parallel I’ve seen in a while. The point of fair use is more akin to “Since I drive my car in the public streets as do you, you have the right to talk about my car.” There is no implication that you, as an individual declaring fair use, can create your own football match using the NFL logo, NFL team names, or their stadiums etc. Only if that were the premise behind free use, would FreeForm5 be marginally correct.
Think before you write bubba.
omg, do you listen ? How long have you watched football ?
Go away and quit trying to generate traffic to your web site.
The reason why the NFL is successful is because it vehemently defends and protects it’s brand and to keep things brief, the “brand” includes the content.
Now what you should do is listen very carefully to that copyright statement [if you watch football, you should probably have it memorized] and you will realize that it’s very explicit but you must be an idiot to think that is on a individual level.
Hockey is gay and mindless, basketball is boring and the field is too short. Baseball is supremely boring and a waste of a good day [also way too many games], and lastly SOCCER should be outlawed in this country.
FOOTBALL IS KING.
http://www.techcrunch.com – please note on this day, that the following site made a quixotic and hubris laden post about how the NFL copyright statement can be interpreted to mean that you, the individual, cannot discuss or rebroadcast the game, provide still photos, videos, etc.
WOW, obviously your IQ is nested right around
I think people should definitely sign the petition.
HOWEVER!!!! In the mean time, what we ALL need to do is to follow the rules the NFL has set up TO THE LETTER.
Meaning….
EVERYONE needs to send the NFL a request to “describe” the game to a friend. Then send them another one asking for permission to describe the game to another friend. And so on and so on. Assuming that you need permission for each seperate act. Then we should write in to ask if we can gain permission for a group of two friends, i.e. “Dear NFL, I have a question about your permission. May I obtain permission to describe the game last night to two friends or maybe three? Or do I need seperate permission for each individual?”
That’s not to mention asking permission for different games. Just think about it. If I ask for permission to describe just three games to three different friends, that’s 9 requests that the NFL will need to process. EACH WEEK! This year’s season could be extremely long for the admin people at the NFL (National (dog)Fighting League).
The absolute best explication of Fair Use was created by a Bucknell Prof. entirely using Disney images and sound. (You probably know that Disney is known as possibly THE single most aggressive organization in the world when it comes to copyright).
Will the tag show up in this post? If it doesn’t, use the Google: “fair use faden” will do it.
http://www.yout...h?v=4bK8AZSYtPU
Talk about a straw man. To read that disclaimer as suggesting you can’t discuss the broadcast is a ridiculous reach. It suggests nothing of the sort, but you give yourself a jumping-off point for your fair use diatribe.
Silly.
Just an aside, the U.S. Constitution explicitly authorizes patents, copyrights, and trademarks in order “to promote progress”, not to provide infinite revenue streams for companies or authors. The misnomer “Intellectual Property” was coined later to try to mis-appropriate the reverence that he have built up for physical property over millenia of social evolution for this concept of limited, government-granted monopolies. I think people would avoid silly analogies to cars and so forth if we called patents, trademarks, and copyrights what they really are – “Intellectual Monopolies”.
I’m not saying we don’t need them, I do think these government-granted Intellectual Monopolies do serve a purpose, but they should be viewed as a necessary evil that restricts our freedom – sort of like eminent domain – and should not masquerade as some fundamental core tenet of a free society like property.
That said, the NFL announcement can say whatever it wants at the beginning of their program – “You must mail us $1000 if you watch this program” – but since you don’t agree to the terms, the material is governed by existing copyright law, not by their silly introductory statement.
People shouldn’t even watch football. I’m always aghast at the millions of men who watch these spandex clad people who pass balls between their legs. It seems so…GAY.
To Dominic aka dumbinic -
Like this is constructive – “BTW, you should stop spoiling this great blog with your political views and get back to what it’s all about. Tech News.”
@ the nerve
Does your mommy know you’re an idiot and keep bad company?
Probably the best libertarian arguments against intellectual property have been made or summarized by the lawyer and libertarian theorist Stephan Kinsella. A good place to start is his Sep., 2000 article “In Defense of Napster” http://www.lewr.../kinsella2.html
Doug Lay states the core of the argument fairly well in an earlier comment: “Is there anything more tiresome than people who persist in comparing copyrights to physical property like cars and real estate? Come on – any 10-year old can see that when you take part of someone’s car you’re depriving them of the use of it, while if you copy part of someone’s song the original owner still has their entire work. Really, this whole “intellectual property” metaphor is pretty misleading and unhelpful.”
Precisely. The reason that intellectual property laws are so arbitrary (14 year copyrights? Why not 1,000 years? Why not 1 year?) is that IP is artificial and incompatible with good old traditional physical property rights. Does the NFL own the part of my brain that remembers the game? Does it own my mouth if I talk about the game?
IP problems (including the endless patent litigation, etc.) are not going to go away, they are just going to get worse because IP cannot be reconciled with our property rights in our bodies and our justly acquired physical property.
As I understand it, fair use doesn’t cover digital media. The Digital Millenium Copyright act rewrote all the rules. Welcome to bizarro world.
Copyright protects authorship; the authorship involved here is the commentary and the video production, not the events being reported. Copyright is simply irrelevant to discussing the game itself. Fair use could be involved if you are quoting the reportage.
The posted article’s use of the video clip is itself an example of fair use.
As for the term of copyrights, two constitutional provisions are significant: first, the provision authorizing copyrights requires their term to be limited; second, after the fact legislation is prohibited. Between them, these prohibit congress from extending the term of existing copyrights. That is, they cannot change the limit retroactively nor can they provide an additional term (since the term would not then be limited).
There’s a conflict of interests which has become evident when the world entered the postindustrial era. Copyrighted works in most popular formats such as music and video have PUBLIC nature yet they are owned by PRIVATE entities.
This worked in the pre-digital age when private copyright holders could effectively combat “piracy” at the industrial level. People didn’t have means to copy vinyl records (although my parents – I’m Russian – remember times when people in the Soviet Union somehow copied popular Western records as those were not available from the audio stores). At that time piracy at the personal level didn’t exist for technical reasons.
Later when compact cassettes were introduced to the market it started spreading as it became possible to record a radio broadcast where your favorite track was playing or make a copy for your friend or two. During these periods companies combated mainly illegal factories and illegal use in the commercial context.
When we entered the Information age their strategy became meaningless as the means of information reproduction have changed totally. They don’t know how to fight local networks, P2P networks, Web 2.0 websites. Yes, they can fine Napster, sue a random user of a P2P network but that’s not a capital punishment to those who infringe their copyright.
The truth is out there and I strongly believe that sooner or later, they’ll have to face the harsh reality and put their concepts upside-down. One of Google’s early business ideas was to sell premium access to search results but they learnt from Go2.com and changed the concept. What’s their business? Search, email? No, advertising. Everything else is a way to sell it. Media publishers whose content is most infringed should learn from that and give birth to new innovative concepts of making their content public.
For example, everyone should be able to share a game of baseball under a condition that advertising will not be cut out and you won’t be able to skip it. Also, there should be a way for content creators and copyright holders to know that it’s been played and created some value for their advertisers. Ideally, an advertiser should be able to change ads shown to reflect their current advertisers and make ads more relevant.
In other words, big stupid guys should reinvent their industry and replace cause with effect and vice versa. The first who does it will make a home run. They should OFFER their content to distributors and PAY them some of proceeds from advertising. They should chase distributors and beg them to promote their content. A technology should be built around it. Note that this system would benefit end users as they would not have to pay directly (they’d pay through that portion of price that’s formed by advertising costs). Also, it will benefit the makers of content that’s highly requested by the masses. Those who can read needs of their customers will succeed most.
That would totally change things and put an end to copyright hysteria that’s causing so much grief to everyone including copyright holders.
I’m all for ‘fair use’, but the term seems to enter a gray area when you talk about using a clip on a blog. This blog, for example, has about ten sponsored ads on the side of the page. So now, you’re using someone else’s copyrighted material for your own profit. Slippery slope here..
Comment by Robert H. Goretsky of Hoboken, NJ
According to the 1976 Copyright Act, everything that is published is implicitly copyrighted. At some fine level of granularity, everything is plagiarized. The real question is whether the work is unique enough to be recognized as belonging to a single source. Otherwise, someone would have copyrighted the alphabet. As for fair use and the risks, the true determinant is whether the claim can and will be enforced. It is a civil issue, and Uncle Sam will not go after infringement if you file a complaint. They will only help enforce a judgment if the copyright holder wins in court. So, only copy things from those who are too weak/poor/incapable to sue you. Big corporations do it with impunity, why not you too?