Copyright common sense

Regular readers know that I’m generally pro-IP and pro-IP business models. Properly structured, intellectual property rights reward innovation and creativity, giving us more and better.

However, I’m cheering a victory tonight against the overstretch of the “copyright cartel” (as their opponents demonize them). The case involves a YouTube video and a lawsuit filed by Universal Music against YouTube here.

Here’s tonight’s SF Chronicle update of the AP story:

(08-20) 19:58 PDT San Jose -- In a victory for small-time music copiers over the entertainment industry, a federal judge ruled today that copyright-holders can't order one of their songs removed from the Web without first checking to see if the excerpt was so small and innocuous that it was legal.

The ruling by U.S. District Judge Jeremy Fogel of San Jose was the first in the nation to require the owner of the rights to a creative work to consider whether an on-line copy was a "fair use" - a small or insignificant replication that couldn't have affected the market for the original - before ordering the Web host to take it down.

A 1998 federal law authorized copyright-holders to issue takedown orders whenever they see an unauthorized version of their work on the Internet, without having to sue and prove a case of infringement. Some advocates of Internet users' rights - including the Electronic Frontier Foundation, which represented the individual user in this case - contend the procedure has been abused.

The principle of fair use is that society benefits by allowing certain exceptions to an absolute copyright control, allowing both small amounts (such as my story quote above) and for specific purposes (such as for commentary, research or scholarship). Playing 15 seconds of a song in a documentary about the music scene is different than putting an MP3 file on Gnutella.

The law is also quite clear that “fair use” has limits. In the case of Gerry Ford’s memoirs, The Nation published only 300 words from an illicit copy of the book, but it was enough to kill a deal the publisher had to serialize a larger excerpt in Time. The Supreme Court ruled that even this brief excerpt violated fair use because of the impact on the publisher’s business.

Thus, today’s ruling is no guarantee of victory for the defendant, a mom who used 29 seconds of a Prince song in a YouTube video of her toddler. That is as it should be — whether some use is “fair use” is a question of fact to be decided at a trial.

But it means that the DMCA has to conform to the same principles of copyright as any other copyright law. Perhaps the record industry will now be a little more judicious (and reasonable) in challenging use of its work. Given Hollywood’s difficulty in dealing with the Brave New World, somehow I doubt it.