Media firms land in hot water for false copyright warnings

Is the NFL violating consumer protection laws by telling you to get its permission to discuss a game?

Published August 1, 2007 10:51PM (EDT)

A computer industry trade group has just filed a complaint with the Federal Trade Commission against several sports leagues and media companies for lying to the public in anti-copying warnings. You know the warnings in question: Whenever you watch a sporting event or a movie, you're alerted that you're not authorized to do anything with that media other than sit passively on the couch and let it burn into your brain. According to the trade group, those warnings are wrong -- and the media companies could be violating consumer protection laws in showing them to you.

The trade group is the Computer & Communications Industry Association, which represents Google, Microsoft, Yahoo, Sun Microsystems, and many other firms. The media companies are the National Football League, Major League Baseball, NBC Universal, DreamWorks, and the publishing houses Harcourt and Penguin. By running untrue copyright warnings, each of these firms, CCIA alleges, has "engaged in ... a nationwide pattern of unfair and deceptive trade practices by misrepresenting consumer rights under copyright law...."

For instance, every football broadcast includes the following on-screen message:

This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL's consent is prohibited.

Here's what you find in most movies (this is from the DVD of DreamWorks' "The Good Shepherd"):

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.

But these warnings are flat-out wrong. Federal law does not say that you're prohibited from discussing, exhibiting or using media in "any" other way unless you seek authorization first. Indeed, federal law actually says that you need no authorization whatsoever for a host of actions involving media. According to the law, you don't need to get someone's permission before you criticize a work, before you quote it to review it, before you copy parts of it to teach it or to use it in research. It's all set out in, among other statutes, Section 107 of Copyright Act, titled "Limitations on exclusive rights: Fair use."

"This is a miseducation of the public that systematically blunts their awareness of their own rights," Ed Black, the president of the CCIA, told me in a phone interview. He acknowledged that the fair use provisions of the copyright law constitute a gray area, ab issue over which consumer advocates and media firms have long tangled. But these warnings, Black says, don't acknowledge that viewers have any fair use rights -- they suggest that fair use doesn't apply at all, and a position no copyright advocates (not even the RIAA) can truly attempt to defend.

But so what? After all, doesn't everyone recognize such warnings as puffed up and kind of silly? Who are they harming?

Black thinks they do a great deal of harm to the "political process" that seeks to reform copyright laws. The warnings constitute a kind of ubiquitous, underground political campaign "to stop millions of people from realizing there is a fair use right out there" that they should be fighting to defend, he says.

More than that, though, the warnings harm copyright law itself. When the NFL argues that you need its permission to provide "accounts of the game" to your friends, "the effect of that is people will see the law as stupid," Black says. "And that does not bring respect to the law."

By Farhad Manjoo

Farhad Manjoo is a Salon staff writer and the author of True Enough: Learning to Live in a Post-Fact Society.

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