Patrick Ross is back today with a few comments about the CCIA's complaint to the FTC about the education efforts of sportscasters on "fair use." As follows:

During her tenure, Federal Trade Commission Chairman Deborah Platt Majoras has been, for a regulator, refreshingly anti-regulatory. The Computer & Communications Industry Association today is hoping she changes her stripes.

I just came back from a very peculiar press conference (in part peculiar because CCIA staff and outside PR people far outnumbered the reporters present). It seems CCIA is filing a complaint at the FTC against some sports leagues, movie production companies and publishers because they don’t like the copyright warnings included. (Disclosure: Some of those named are part of the Copyright Alliance.) If the CCIA has its way, the only logical course for the FTC is to craft mandated language for all copyrighted content, which would serve neither copyright holders nor the users of their works.

CCIA President Ed Black ridiculed a number of copyright warnings -- you know the type, they say unauthorized use could result in fines or jail. Ed says the warnings don’t stipulate fair use. Well, using the word “unauthorized” would seem to address that, because fair use under Sec. 107 of the Copyright Act would be authorized. But Ed says these warnings confuse consumers, and create fear. He says the NFL warning might make people afraid to discuss a game over a water cooler: “I can’t wait until football season.” He didn’t address the fact that these warnings go back a generation at least; in fact, the WSJ story on it this morning opened with a reference to the fact that we’ve all got these sports audio warnings memorized.

Ed didn’t try to present any demonstrable harm as a result of these warnings, and in glancing through the complaint I didn’t see any there either. He also didn’t explain CCIA’s standing in this; why does the trade association for Fujitsu and Nortel Networks care if I can talk about an NFL game?

But what Ed did do was read to the small crowd some of the alternatives CCIA would approve of for warnings. The one he promoted most prominently was one from a CCIA web site.

So what is the FTC to do, if it chooses to act? It would be ruling that existing warnings are inadequate in their expression of fair use. The problem is, every single use situation is unique, and whether something is fair use or not is as ill-defined as the ether; it only solidifies as a “yes” or “no” when tested in the crucible of the court system. So what would the FTC mandate? Whatever CCIA recommends?

Most likely, they would have to mandate a stock set of language – continuing to leave the warnings to the discretion of copyright owners would only invite more complaints. But any language generic enough to cover all possible content and use would have no meaning. It would not convey to the user the possibility of violating civil or criminal law. And it would go no further to explain to the user what fair use options there were.

Let us not forget something here – these are “warnings” we are talking about. We constantly hear complaints from groups that claim to speak for consumers that there are too many civil law suits by copyright owners. Here we are only discussing warnings, which if effective could help prevent many, many suits. Apparently either CCIA wants more suits by copyright owners, or they not only oppose suits but they want to strip away the right to warn as well, leaving copyright owners without an ability to effectively defend their rights. One seems more likely than the other.

There is a very simple solution here. CCIA says consumers are confused. We at the Copyright Alliance believe there is a lot of confusion out there, from lots of different sources. That’s why we provide education on the very issues CCIA is talking about, including fair use. CCIA seems to want the copyright owners to educate consumers on fair use, but it would seem he might prefer to do that himself through his trade association and its members. Then, he wouldn’t be tying up the time and resources of the overworked staff at the FTC.

posted by Solveig Singleton @ 12:44 PM | Access: Commons, Fair Use, Orphan Works, Public Domain, Media: Video, Music...

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