Wednesday, September 29

For your discussion — A call for further protection and clarification of fair use rights!

From: U.S. Copyright Office - Fair Use
"The distinction between 'fair use' and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: 'quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.'

Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of 'fair use' would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered 'fair' nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney."
The above is all the protection, direction, and definition the U.S. copyright law provides its citizens on fair use. Even if this may have been adequet in the physical world in the online world everything is a copy and when faced with such simple everyday issues as how to properly and legally quote a song for the pupose of discussion the only practical right that can be derived from U.S. Copyright Office is your right to "consult an attorney".

I needn't point out that "consulting an attorney" is still no guarentee of your rights, is a might bit expensive, and slightly impracticle to do on a daily basis. Consulting an attorney should only be a requirement as a last resort of the law. The general dependancy of fair use on lawyers alone makes fair use protections anavailable and inadequete to 99.99% of all citizens and in 99.99% of all cases?

The founding fathers of United States and framers of the constitution would be appauled at the abuse and mockery with which corporations, special interest money, and congress have made of copyright law and with it individual rights, freedom of speach and our freedom of public assembly.

I would bet my last dollar that in their revolutionary hearts our founding fathers would be proud of the spirit of the people and the lengths to which the people have gone thus far to maintain their rights. So why then has nothing been done to correct this vast inadequecy in the law, and why is our Congress in fact spending it's time debatinging acts like the Induce Act to give a tiny minority of copyright holding coporations more opportunities to litigate at the cost of individual freedoms?

If new laws are needed to protect
the greater good,
the vitality of American culture,
the rights of the individual,
and the free market system
then new laws are needed to protect and further establish FAIR USE rights.

We do not need laws that might further stifle innovation and freedom to protect the special interests of a tiny faction of corporations whom peddle artifacts of popular culture such as those represented by the RIAA and MPAA lobbiests. We need fair use rights and we need them now!

The debates in congress are clearly and completely askew. The congressional debate is focused purely on protecting special interests which are very much in the minority and whom have lobbied heavily to tilt the ear of and the debate of congressmen in their favor. If we need new laws then we certainly do not need new laws to protect the outdated and inflexible business plans of large incumbent corporations that peddle only a tiny fraction of the most popular of cultural artificats such as those represented by the RIAA and MPAA. To let the debate be dictated by such a tiny faction of only the most comercial peddlers of culture means we all lose.

I have watched congressional debates on the Induce Act, P2P, and other issues of the day, and I am appauled by the lack of representation by the average american citizen and the dominance of the debate by RIAA, MPAA and P2P representatives. If I were to have a voice as indeed I should as an US citizen I would say simply this.
Get over yourselves MPAA and RIAA lobiests,

Your interests do not in any way represent the interests of the majority of U.S. citizens. The fact that your business models are no longer relevant is NOT the problem of the government. Your business models and indeed your entitlement to sell music or movies on little plastic disks for large profit margins or any profit margin is not a guarenteed right. If you cannot find some other way to conduct your business that is suitable to the people and profitable then in fact you should be questioning your own right to exist because in fact you have no god given or constitutionally protected right to exist. On the other hand people do have rights and you are trampling on them through widespread threat of litigation.

The problem that has driven the masses to and created innovation in closed systems and marketplaces like P2P is the lack of legal protections from litigation. Lack of protections, lack of foreclosure of protections, and lack of human accessibility to these legal protections have created the FUD (Fear, Uncertainty and Doubt) over fair use that you have preyed upon. It has put the fear of litigation into the minds of the average citizen which has driven the debate of popular culture off the open internet and into darkent systems such as P2P. It is the fear which you continue to play upon with your litigations and your litiguous advertising campaigns that continues to fuel the marketplace and innovation for these cloak and dagger systems.

The debate should now be on how to correct the dirth of innovation, open marketplaces, and business models for intellectual property in this new frontier so we may bring american culture back out of hidding and reaffirm it's place at the center of american life, online as it has been offline. As such if any new laws should be considered and are necissary then it is time to consider further protections of the individual's right to fairly discuss, quote, debate, and parody popular culture so that the people may PARTICIPATE in the creation and dissemination of their culture.

PARTICPIATION is the hallmark of the internet and every citizen should not only "be free", but "KNOW they are free" to openly quote all media. People must be as free to express themselves in this new medium as they are free express themselves through the age old medium of writing. Quoting video or music must be as second nature as quoting from a book. People must be free to assemble publically online as they may. People must be free to speak publically online as they may. Every citizen is entitled to full knowlege and protection of their rights in the online world as they are in the off-line, without any fear of litigation.

For these reasons our primary task must be in the further definition and clarification of "fair use" doctrine that we may enourage innovation in open-markets, in business models, in open debate in the commons. To spend congressional energies in any other matter is a perversion of the American judicial system.
Lack of protections for fair use rights have pushed the debate, the conversation and indeed the very life of popular culture off the internet as a whole. I look around the internet and I see a lack of debate, conversations, and even open public commons online because of a fear that somone might post some material which cannot be reasonably verified (even at the hest of a legal team!) to be within fair use rights. Any host or creator lives in fear that they may suddenly find themselves at great legal peril through no fault of their own except for allowing for fair and proper use. As such systems have closed their doors behind password protections and increasingly covert systems like P2P where they not only cannot be sued, but where also free-loaders can exist and where public debate and conversation cannot go.

Lack of fair use protections have black boxed american culture.

The reason for this lack of cultural debate in todays public sphere is because lack of protection for fair use has scared off the private owners of public commons. Incorporated representatives of popular culture have stymied the debates and conversations that are vital to the very health of popular culture through threat of litigation. Instead of debate and conversation taking place around artifacts of popular culture these artifacts have become inmeshed within the business models of dominate media players. Business models of players whose only interest in the common good is their ability to profit from it directly and in the immediate future. These incumbents' threats of litigation have created an internet where few cultural artifacs not central to popular culture are legally quoted and shared online.

Music, TV, and motion pictures are central to American popular culture, yet we have no clear and openly protected rights to quote them for the purpose of debate, criticism or education on the internet.

Meanwhile the widespread fear of litigation by the masses has pushed popular culture to the darknet where, through cloak and dagger P2P systems, mass society can protect itself from litigation but only at the loss of public debate and at the peril of freeloaders, theives and other members of society whose actions would not be condoned in open systems. In these closed systems citizens may find new freedoms and a greatly reduced risk of litigation but they are unable to publically debate and as a result most discussion that might enrich culture and provide a basis for innovation and evolution never happens.

If debate does occur it happens only in limited and discrete closed systems like IM, private spaces or offline where any benifits cannot be shared and contributed to in a public manner. Perhaps the fact that the debate is widespread and viscous but only in such isolated pockets is why only few such attempts (such as this article) are even made by bloggers to progress this most obstinate of debates.

Indeed we do need better protections of "Fair Use" and not further protections of those institutions who falsely claim to represent the widest spread and ever increasing demographic in America, the so called "creative class". These institutions are only peddlers of a small fraction of the most popular of American culture and as such they have no right to steer this debate and in fact have already steered it so poorly that they have foolishly entrenched themselves against P2P technologies.

Fear of litigation by them has cleared table of widespread cultural debate and innovation within this huge new frontier of OPEN internet culture. Indeed neither of these parties represents the american people but their battle has framed the debate and laws in a very twisted and negative light of protecting P2P or protecting incumbent business models. Neither of these possibly outcomes rationally support the rights of the peoples nor the spirit of the people. What is rational and what has been overlooked is protect the rights of individuals so that they may feel free to discuss and innovate ways out of the problem by establishing new business models and new marketplaces for ideas which by there very nature may prove both the P2P and incumbent parties fears irrelevant.

We need to draw popular culture out of the darkenet and back onto the open internet where debate can be had and rights and laws can be explored, advanced, debated and understood by the citizens. Where an individual citizen can know that if they post this music sample by this author for discussion on this bulletin board or blog they are legally entitled to do so without fear of litigation. Where an author of video understands the limit of his right to "quote" from a video the way an author understands his right to quote from another book because (as Lawrance Lessig constantly points out) copyright never states what you have a right to do, it only states what you cannot do.

The foreward at the end

This idea has been a long time coming. "I'm just one person" as the saying goes. "What can I do?" Well, I'm doing it one step at a time and I think to start with everyone needs to find their voice, state their best points publically, and contribute to the debate with whatever means they have. What follows is my contribution and wether this idea starts as a whisper on a blog or is shouted from mountain tops by an established journalist publication it will start and it will spread. I encourage every indivdual in the blogosphere and indeed every individual everywhere to publically speak out on what I'm about to say or what they have to say on the issue either by posting to their own blog or speaking on their discussion boards. I encourage you to encourage others and I invite you if you like to to simply link to this post or if you so believe in what I'm about to say here to copy and past it or remix it to your liking for this is what ideas are for. Without further adeu, my manifesto.

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