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