Here's one of the subjects I've mentioned in a few places in action: the rhetoric of fair use.
The technology trade group Computer & Communications Industry Association (CCIA) recently filed a complaint with the FTC regarding the misleading and overreaching copyright warnings that appear during sports events, on DVDs and books, and other places. Georgia wrote about the complaint last month. I'm highly sympathetic to that particular endeavor, as I find such notices blatantly misleading. Those notices are one of the subjects I'm regularly asked about by the people I work with- mainly librarians, students and educators. ("Can I show this video to a class when it's class related? What if it says "For Home Use Only?")
The head of the industry sponsored Copyright Alliance has written a response on CNet entitled "Fair use is not a consumer right."
When I first started reading about copyright, I found one of the most confusing things was the treatment of fair use. Court cases and Congressional testimony addressed fair use in many different ways, and some of those ways appeared to be mutually exclusive. Some said that fair use was an affirmative defense. Some said that fair use was a right, generally protecting First Amendment interests. Asking different lawyers got me different responses. (Shocking, I know.) The statute doesn't explicitly state either, but merely that fair use is not an infringement of copyright. The Supreme Court weighed in on Eldred v. Ashcroft, and they stated that the fair use defense was one of the free speech protections in copyright, a fact referenced in Golan v. Gonzales. So perhaps it's a bit of both, for now.
When people write about copyright, one of the first things you can look at to get a feel for where they stand on the copyright continuum is how they address fair use. Fair use is usually treated as an affirmative defense. As an affirmative defense, the person accused of infringement has the burden of both bringing it up and proving that they did not infringe copyright. When fair use is treated as a right, then the accuser needs to show that they did not violate the rights of the alleged infringer. Both the CCIA complaint and this response show where those organizations stand.
I think that merely saying that fair use is not a consumer right is an incredible oversimplification that ignores much of what fair use is about. I do agree with Mr. Ross that education is key- but if the documents on the Copyright Alliance Web site are any indication of what education should be, I think we're going to disagree on the particulars.
