Computer Companies Complain About Copyright Warnings

By John Eggerton -- Broadcasting & Cable, 8/1/2007 6:50:00 AM

Computer companies are taking aim at TV and DVD copyright warnings, saying some warnings mislead consumers and thus are an "unfair and deceptive practices."

 Computer companies including Micosoft, Google and Yahoo, have filed a complaint with the Federal Trade Commission against Major League Baseball, the National Football League, NBC/Universal, DreamWorks, Harcourt Inc. ( a divsion of Reed Elsevier, which owns B&C) and Penguin Group alleging they had misled consumers about their legal rights over content.

 “Every one of us has seen or heard that copyright warning at the beginning of a sports game, DVD or book,” said Ed Black, CCIA President and CEO, planned to say in announcing the complaint at a press conference at the National Press Club. “These corporations use these warnings not to educate their consumers, but to intimidate them.”  

 The complaint was filed by the Computer & Communication Industry Association Wednesday, a group formed by the computer firms to push back against copyright protection efforts by the studios they feel are misleading and do not fairly represent the fair use rights to copyrighted material. NCB Universal has been arguably the most aggressive, and certainly the most vocal, in its defense of copyrighted works in a digital age in which such works can be easily distributed over computer networks.

 The complaint alleges "a nationwide pattern of unfair and deceptive trade practices by misrepresenting consumer rights under copyright law.”

 "In some cases, copyright holders threaten criminal and civil penalties against consumers who choose to exercise Constitutionally guaranteed rights. These false representations violate the letter and spirit of the Federal Trade Commission Act’s prohibition against unfair or deceptive practices in commerce."

 Edward J. Black, president of the Computer & Communication Industry Association, said the warnings discourage fair use rights and mislead "millions of consumers." Copyright law is intended to encourage unauthorized uses, he said, such as criticism, commentary, and news reporting. "But if the deceptive practices go unchecked." he said, "they will forego those  [fair uses] out of confusion and fear."

 The argument is that the warnings misrepresent the law, suggesting that any re-use is criminal, when in fact, it is not.

 According to Black, they want the FTC to investigate, order them to stop the practice, come up with a plan of action to prevent repeat "abuses," air corrective advertising, and create a consumer education campaign on copyright.

They also want the copyright warnings to contain information about varoius fair uses of protected material.

Why these companies? Black said CCIA would likely be adding to the complaint, but said these were the most egregious offenders.

"The Copyright Act grants to the NFL, as the exclusive owner of its game telecasts, a number of valuable rights," said NFL spokesman Brian McCarthy. "The NFL has and will continue to protect those rights, and related intellectual property rights that stem from its games, in several ways. We believe that the notice that has been used by the NFL for many years during its game telecasts is well understood by viewers to prohibit uses that would violate the Copyright Act, as opposed to private or non-commercial uses." 

 The networks and studios weighed in via the Copyright Alliance, saying they were surpised the CCIA wanted copyright owners making the calls about what is or isn't fair use, and suggesting if they were required to include fair use calls in their copyright warnings, they would likely scrap them and go right to court to deal with infringers.

“If the CCIA is concerned about fair use, this is an odd way of showing it," said Patrick Ross, executive director of the Alliance, which is the network's and studio's opposite number to CCIA. 

"They are faulting copyright owners who take the time and effort to caution users on the fact that the works are copyrighted. If CCIA were to succeed in requiring copyright owners to affirmatively delineate a fair use legal strategy with every warning – in essence act as the user’s defense attorney – wouldn’t many owners simply forego the caution and instead move straight into legal action? Apparently the CCIA wants more civil copyright infringement suits to be filed.

 “Beyond that, CCIA could actually retard fair use with this action. An advantage of fair use is that the user can decide whether their use seems to be “fair” under Sec. 107 of the Copyright Act and subsequent court actions, and if challenged he or she can defend that belief in court. CCIA, however, seems to prefer that copyright owners decide what is fair use and then inform potential users of what is in and out of bounds. 

"I suspect most individuals would prefer to make their own determinations and take their chances in court if necessary." 

Alliance members include NBC, CBS, News Corp., unions, music publishers, the National Association of Broadcasters and the veritable host of others.

Weighing in on the side of the computer companies was the Consumer Electronics Association, which has been a big backer of fair use copying, which is done with consumer electronics equipment.

“Many copyright warnings ignore consumer fair use rights and should be modified to reflect the true rights of consumers who lawfully acquire audio and video content," said CEA President Gary Shapiro.  "Now more than ever, it is essential that all stakeholders accurately educate consumers about our obligations—and our rights—under copyright law,” he said.