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Achtung!

So it’s a nice quiet Friday night, and you’ve got a couple of DVDs from Netflix. The popcorn’s made, the lights are low; you snuggle up on the couch, and hit play on the remote. All’s well and right in the world.

Then the first thing that pops up on the screen is a LOUD yellow and red and black WARNING that seems to be from the freakin’ FBI that if you COPY any PART of the MOVIE YOU WILL GO TO JAIL and PAY $250,000 in FINES. You hear a siren outside in the distance and wonder if G-men are going to come crashing through your window right now, like the DeNiro pirate plumber in Brazil. Honey, is the front door locked?

Then, of course, is the ubiquitous announcement at the end of every football game. I think the test of a true football fan from a dilletante is that the real fan can recite this from memory:

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 consent is prohibited.

Recently a trade group of information companies (including Google, Microsoft and Yahoo) filed a complaint with the Federal Trade Commission seeking to get rid of these and similar warnings. And it’s about time. These warnings misstate the law and do a huge disservice to society. The warnings, in short, are lies. They are intimidating, scary and just plain wrong. Sure, we can laugh at them, but how about our kids, getting a heavy dose of totalitatian bullying as a prelude to Shrek or My Secret Garden?

What these warnings do is blow off the First Amendment of the Constitution and the doctrine of fair use of copyrighted works. No one owns absolute ownership to any film, book, or TV show, period. That ownership is tempered by the public’s right to reuse those works for things like commentary and criticism, news reporting, and research. You can use parts of an existing work for a new work if the new work is transformative, if it stands alone as a work of expression, and doesn’t steal the market position of the original.

Yeah it’s sticky, and yeah, there’s a gray area you could drive a truck through. But that’s what the law really is. The NFL, along with Major League Baseball, the major movie studios, and book publishers who all so stridently tell you that you can’t, under any circumstances, copy their works, are simply blowing smoke.

The Library Copyright Alliance sent the FTC a letter in support of the complaint, stating that copyright warnings contained in books were likewise misleading, and in stark contrast to the notices that libraries are required, by law, to post near photocopy machines. The Alliance told the FTC “[p]atrons are confused by the clear contradiction between this copyright warning, which states that certain copying is permitted, and the warnings contained in some books, which state that no copying is permitted without the copyright owner’s express permission.” After a discussion of various types of educational fair uses of copyrighted materials, the Alliance concluded “[t]he fair use analysis is complex enough without the obfuscation caused by intimidating, inaccurate copyright warnings.”

I’ve said it before but it bears repeating: Don’t mess with librarians.

California law professor Wendy Seltzer had some fun recently by posting the NFL’s warning from the broadcast of the SuperBowl on YouTube. Not any of the game, mind you, just the warning. Predictably, the NFL sent YouTube a “take-down” notice that Seltzer’s post was infringing, and the warning was removed. After some wailing and gnashing of teeth, it was put back up, and remains there today.

The complaint seeks an injunction that will bar these onerous warnings in the future, for the FTC to investigate how these warnings came to be in the first place, new remedial warnings that explain the law as it really is, for Big Media to fund an educational campaign that accurately describes the law, and even a ban on those click-through “terms of use” licenses we often encounter on media sites on the Internet where we inadvertently sign away our free speech and fair-use rights.

The FTC has yet to act on the complaint. You can bet the sports leagues, studios, publishers, and networks will fight this with everything they’ve got, as part of their well-funded agenda to lock up the rights to their stuff far in excess of what copyright law, or common sense, or your freedom, would allow.

It’s gonna be a fun one, that’s for sure.

—Paul Rapp


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