FTC should investigate misrepresentations of copyright notices

Today, a number of public interest and consumer groups wrote a letter in support of a complaint CCIA filed with the FTC. In CCIA's complaint, it argues that those in the copyright industry "materially misrepresent U.S. copyright law" which confuses consumers. We've all seen these bogus notices at the beginning of cassettes and DVDs:

All material is protected by copyright laws of the United States and all countries throughout the world. All rights reserved. Any unauthorized exhibition, distribution, or copying of this film or any part thereof (including soundtrack) is an infringement of the relevant copyright and will subject the infringer to severe civil and criminal penalties.

at the beginning of your favorite televised sporting event:

This copyrighted telecast is presented by authority of X. It may not be reproduced or retransmitted in any form, and the accounts and descriptions of this game may not be disseminated, without express written consent.

or even in your favorite book:

No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher.

In the case of the DVD, it's a blatant misstatement of federal law. There are plenty of "unauthorized" uses of a copyrighted work that are promoted under copyright law, including making copies for purposes of criticism, comment, news reporting, education, etc., under fair use, and expressly under other parts of the law, like Sect. 110(1) for use in classroom settings.

While the other two statements may not specifically cite law, they're false statements that mislead consumers into thinking they have limited rights. To talk about last night's baseball game on a blog or around the water cooler requires the MLB's written consent? These industries are making up rights they do not have and then, in the name of copyright, telling consumers that they must abide by their trumped-up rules or face becoming a felon. After repeating them so often, consumers may know these crazy statements better than "Take me out to the Ball Game," and worse, even believe them.

This mentality not only impacts consumers, but it also creates a climate that chills innovation. Developers rely on fair use to create the new, outside-the-box features that give consumers more flexibility with the content they've legally obtained. Fair use plays a key role in creation of new services and products and the thought that innovators would need authorization from the content owner would likely stifle that new idea.

It's high-time that the FTC looked into these gross misstatements of law and misleading trade practices of these industries. It's also about time that these industries corrected their claims to let consumers know they have rights. It's not that difficult, look how one publisher did it:

Permission to copy material exceeding fair use, 17 U.S.C. ß 107, may be licensed for a fee.

Our letter along with EDUCAUSE, The Electronic Frontier Foundation, FreeCulture.org, Knowledge Ecology International, SPARC, and U.S. Public Interest Research Group, can be downloaded here or read below. If you want to read more about CCIA's complaint and stay up to date on this issue, check out Defend Fair Use.org.

August 3, 2007

The Honorable Deborah Platt Majoras
Chairman
Federal Trade Commission
600 Pennsylvania Avenue, NW
Washington, DC 20580

Re: Misrepresentation of Consumer Fair Use and Related Rights

Dear Chairman Majoras:

The undersigned organizations submit this letter to strongly support the request for investigation and complaint for injunctive relief filed by the Computer & Communications Industry Association (CCIA) in the above-referenced matter. We are a broad coalition of consumer rights and public interest organizations that represent citizens and groups that are materially harmed by the ongoing misstatements of the law made by the parties named in the CCIA complaint.

The CCIA argues that copyright notices that "materially misrepresent U.S. copyright law" confuse consumers. We agree. As the CCIA points out and as the Supreme Court has recognized, copyright law has "built-in First Amendment accommodations." The copyright notices at issue in the CCIA's complaint uniformly fail to make reference to these First Amendment protections. By systematically and materially misrepresenting copyright law, some content owners have unjustly and unfairly chilled free speech.

The purpose of copyright law is to promote creativity by providing incentives for creators, not to allow certain parties to control cultural discourse. By misstating the law, some parties are seeking, not to safeguard their rights, but to invent rights they do not have. By constant and conspicuous repetition, misleading copyright notices have led to a general and widespread misunderstanding of the scope and nature of copyright protection.

The FTC should not allow these unfair and deceptive trade practices to continue. We urge the FTC to grant CCIA's request for relief.

Respectfully submitted,
EDUCAUSE
The Electronic Frontier Foundation
FreeCulture.org
Knowledge Ecology International
Public Knowledge
The Scholarly Publishing and Academic Resources Coalition
U.S. Public Interest Research Group

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