Fair-Use Fans Try to Bolster Copyright-Warning Challenge

Electronics Companies: Practice Discourages Fair Use

Consumer-electronics companies this week sought to bolster the complaint at the Federal Trade Commission against studios, sports leagues, record labels and book publishers over the copyright warnings on their content, and to encourage the FTC to open an investigation into copyright warning labels.

In a filing with the FTC, the Home Recording Rights Coalition offered up precedents that it said give the commission a path to declaring the practice illegal.

That practice, they claimed, is to discourage fair uses of protected material by creating warnings that claim rights the copyright holders don't have and threaten penalties they can't impose, in the process discouraging such protected uses as literary criticism, artistic creation and making backup copies, "intimidating consumers into avoiding socially and economically valuable activities that are protected by law."

The Computer & Communications Industry Association filed its complaint in August against Major League Baseball, the National Football League, NBC Universal, DreamWorks, Harcourt and Penguin Group, alleging that they misled consumers about their legal rights over content. The complaint alleged "a nationwide pattern of unfair and deceptive trade practices by misrepresenting consumer rights under copyright law.”

Like the CCIA, the HRRC is backed by the companies, like computer manufacturers, that make the technologies for socially and economically valuable activities like copying and storing and disseminating digital content.

In its filing this week, the HRRC cited a series of cases to make its point, including one in which debt-collection firms were enjoined from making misleading representations about their recourse for unpaid debts. The FTC, the HRRC said, concluded that "[t]he creditor's rights enumerated [in the debt collectors' communications] are incomplete, inaccurate and vague and are stated to intimidate the debtor rather than to inform him of the creditor's rights."

The CCIA and the HRRC argued that the programmer warnings are similarly inaccurate and intimidating, citing for example the NFL's warning on broadcasts that it has exclusive rights to "all descriptions" of a sporting event.

When the CCIA complaint was filed, the networks and studios weighed in via the Copyright Alliance. "They are faulting copyright owners who take the time and effort to caution users on the fact that the works are copyrighted," said Patrick Ross, executive director of the Copyright Alliance. "If the CCIA were to succeed in requiring copyright owners to affirmatively delineate a fair-use legal strategy with every warning -- in essence to 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."