A Copyfighter’s Musings

As Matt considers a response to this, I just want to note a few more things.

1.  I think Matt’s right that, in the end, this discussion exemplifies how confusing copyright law can get.  The Napster ruling held, “Napster users who download files containing copyrighted music violate plaintiffs’ reproduction rights.”  Well, what if I download a song from a website that misrepresents its legality – am I still infringing? Potentially. Again, I think a court would look carefully at the nature of the service; it’s pretty clear that most P2P users do not think they are downloading from authorized sources.  If a website were pretending to be the equivalent of PressPlay, a court would probably look more favorably on the downloader.

2.  My discussion of redistributing the fake “American Life” made me think about the importance of CC licensing.  Right now, if you create a song, and you want it to be redistributed for free, it’s not enough to put it up for free on your website.  Putting it up for free on your website seems to scream “some rights reserved,” but it’s not enough.  Because downloaders only have rights to their one copy, you’ve got to aver that they can produce and redistribute other copies.  (This assumes that what I said about the fake “American Life” is correct.)

3.  It’s worth repeating that you currently have no “right” to copy.  If you have a fair use defense for your particular use, that’s not the first thing a judge will rule on. First, they’ll see if there’s evidence of direct infringement (making a copy), and then look at the defenses (the copy was a personal backup).  In the eyes of the law, you are an infringer first, a fair user second.

Maybe that distinction is meaningless because, ultimately, what the judge looks at first doesn’t matter – what matters is whether you’re found to have been infringing.  But, as a way of thinking about how copyright law relates to consumers, I think this point really exemplifies where we’re at right now. The law assumes individuals are at fault. It starts from a position of consumer liability and goes from there.

Passing the Lofgren/Boucher bills wouldn’t solve all of our problems. You can’t protect all fair uses because fair use is spontaneous and evolving (no one could have imagined the uses of the VCR _before_ it was created).  But, we can protect some. And, more importantly, we can get something in the law that recognizes, affirmatively, that consumers matter too.

Filed by Derek Slater at 12:25 pm under General news
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