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Source link: http://archive.mises.org/7001/fair-use-and-copyright/

“Fair Use” and Copyright

August 17, 2007 by

Media Critic Solomon Pushes Limits of Fair-Use in New Documentary provides a good illustration of how flawed the entire notion of copyright is. This piece reports that:

The new documentary “War Made Easy” isn’t just a searing critique of how administrations over the past 40 years have manipulated the media to build support for war. The 72-minute film is a media provocation itself – a challenge to federal copyright laws.

Based on a 2005 book by Bay Area media critic Norman Solomon and narrated by actor Sean Penn, roughly 90 percent of “War Made Easy” consists of archival news footage from major television networks that would cost a ton of money to license – if the filmmakers had paid for all of it; they bought only about 60 percent from distributors. 0817 01

The filmmakers say they are protected under the “fair use” provision of federal copyright law, a measure that is being tested in ways unimagined when it was codified 30 years ago.

The “fair use” doctrine is a safety valve in copyright law; without it, the effect of copyright would be even more draconian than it is now. But the “fair use” standard is inherently arbitrary and non-objective. It is impossible to imagine such a standard arising on the free market in a private-property order. To protect copyright the only real choice is to have a draconian, ridiculous Galambosian-style copyright system which would be obviously and manifestly incompatible with true private property rights; or to temper its effect, to blunt its edges, with arbitratry, discretionary doctrines like this. Neither option is compatible with property rights.

{ 13 comments }

Artisan August 18, 2007 at 5:27 am

Fair use means quoting copyrighted material in a broader context, in order to make a broader point.
That’s objective.

If you want to discredit IP legislation, you really should stick to the patent issue.

And please, just because Mr Galambo is mad and he favors “eternal copyright” is not a good argument against the justice of it all.

Jean Paul August 18, 2007 at 4:18 pm

Copyright is no different than patents, or even trademarks for that matter. It’s all the same lunacy.

Jean Paul August 18, 2007 at 4:22 pm

“Fair use means quoting copyrighted material in a broader context, in order to make a broader point. That’s objective.”

To the extent that the above is objectve, the below is a legitimate exercise of fair use:

“I like this movie:

Jean Paul August 18, 2007 at 4:23 pm

HTML formatting strikes again.

The final line in the previous post should read,

“I like this movie: [entirety of movie]“

CJ August 18, 2007 at 5:09 pm

There’s the problem- intellectual property rights are neither the same nor intended to be the same as property rights. The concept of an actual property right in the nonexclusive is this side of ludicrous.

Artisan August 20, 2007 at 5:00 am

“I like this movie: [entirety of movie]”
If you believe this little sentence as introduction makes a broader point, then you are megalomaniac.

“It’s all the same lunacy.”
Aw really? I don’t “like” your type of sanity.

Go and sell all the leeched stuff you want over the net and pretend you’re free… I call that freedom of the dwarfs. Go and pump enough water ahead, off the small stream that makes your neighbor’s mill work, so it turns only with half the speed. That’s freedom of the Gremlins.

Just because they need an excuse for feeding on someone else’s identity made people read the article on IP by Dr. Kinsella from 2001. But who even bothered to read the related philosophical questions on which it is supposedly to be based (for instance by Rothbard)?

Person August 20, 2007 at 8:33 am

There *are* analagous concepts in physical property: ingress/egress easements, and adverse possession.

jesse August 21, 2007 at 7:44 pm

I am not well read on the Mises Institute’s anti-intellectual property position (I just know that the position is anti-trademark, copyright, etc.)

Can anyone either direct me to a good article on the subject that lays out the ins and outs of this position?

And just quickly, free MP3 downloads? Movie Piracy? Are these considered OK?

An even more detailed question: what about song sampling? For example, when rapper Puff Daddy sampled a Police song and basically just re-wrote the lyrics, it was considered a new composition. I think any musician would argue that it was basically a karaoke performance (with alternate lyrics). In this anti-copyright view, would The Police not be entitled to some sort of royalty from Mr. Puff Daddy? I would think that if you took this position to its logical conclusion (again, based on my mere superficial knowledge of Mises.org’s opinion), Puff Daddy would not even have to ask permission of The Police, let alone pay them…I’m not trying to be confrontational, I’m honestly just looking to broaden my mind on the subject.

Anthony August 21, 2007 at 7:56 pm

I wouldn’t say all Austrians are anti-IP – some are not. Here is one of the best defences of the anti-IP position though:

http://mises.org/journals/jls/15_2/15_2_1.pdf

Jean Paul August 22, 2007 at 12:59 pm

artisan says: “If you believe this little sentence as introduction makes a broader point, then you are megalomaniac.”

I don’t know about being a megalomaniac, but the message communicated by “entirety of movie” is absolutely ‘broadened’ by adding “I like this movie” to it. Therefore it satisfies your objective definition.

Feel free to revise your objective definition if the direct consequences displeases you.

Artisan August 22, 2007 at 3:49 pm

“I don’t know about being a megalomaniac”

“Feel free to revise your objective definition if the direct consequences displeases you.”

You are a megalomaniac.

By “broadening”, people are not speaking of physically broadening the message conveyed by some part of an artistic creation, which is absurd (in case you didn’t notice) … but rather broadening its specific meaning.

Jean Paul August 22, 2007 at 7:01 pm

Artisan, of course physically broadened is absurd, and it’s kind of funny you’d even consider that interpretation.

Of course I meant the MEANING being communicated is broadened. The point is that, by reductio ad absurdum on what constitutes ‘broadening’, the most trivial, practically-meaningless, yet technically still meaningful, ‘broadenings’ qualify.

Hell, watch a movie in flagrant violation of some idiotic IP law, but just claim its an act of performance art in which you challenge everyone to contemplate the idiocy of IP laws. Message/meaning, broadened. Any justification you claim is ‘good enough’ to qualify for fair use.

And I think maybe you do not know what megalomaniac means?

Artisan August 23, 2007 at 12:02 pm

“And I think maybe you do not know what megalomaniac means?”

A psychopathological condition characterized by delusional fantasies of wealth, power, or omnipotence. (http://www.thefreedictionary.com/megalomaniac)

“Hell, watch a movie in flagrant violation of some idiotic IP law, but just claim it’s an act of performance art in which you challenge everyone to contemplate the idiocy of IP laws.”

Notice you use the word “claim”… Perhaps you do know the difference thus between “claiming” to accomplish something and “being acknowledged” as to accomplish something (megalomaniacs don’t know this difference in fact). What you tend to so “humbly” call “performance Art” makes no difference though. There’s no law protecting “performance art” that I know of. You seem not to understand that your example would hardly be acknowledged anywhere (certainly not in college) as a “descriptive quotation” even if it was just 10 seconds long … since like it is suggested, that movie doesn’t essentially relate to IP laws in the first place.

“Of course I meant the MEANING being communicated is broadened.”

Maybe you meant it, but in that example, it’s a delusion. For its quotation worth, it “objectively” equals adding random alphabetical signs to the work of someone else.

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