“Whether something is fair use or not is in many cases nearly impossible to tell in advance,” Marc Jacobson, entertainment attorney at Greenberg Traurig, told the E-Commerce Times. “Further, under the U.S. Supreme Court decision in Grokster, if the CCIA becomes too aggressive in suggesting that copyrighted works may be used and transferred with impunity, then they may be liable under that case for inducing copyright infringement.”
That's really laughable, and I'm hoping it was more of an off-the-cuff quip, because as it's written here, it's disingenuous, misleading, and deceptive.
Oh, I'm sure that if you change the facts of the actual situation (say, for instance, CCIA went around actively encouraging everybody to bootleg movies, just to rankle the MPAA), Jacobson's statement is literally true. But to make the statement true, you'd have to create a hypothetical so far removed from the actual facts that it ceases to resemble reality.
What the statement suggests, though, is that CCIA's current complaint might risk inducement liability. And that's just plain wrong. To say that merely discussing the boundaries of fair use can trigger liability is truly insane. If I tell readers of this blog that Cablevision's remote DVR is a fair use, am I liable for inducement if a court finds otherwise? What if one student simply opines to his friend that it's ok to give someone a mixtape? Inducement?
Clearly, that's ludicrous. But, of course, while these are the situations that Jacobson's argument implies might be affected, they're not. What he's saying is literally true–again, if CCIA actively encouraged people to copy and trade rented DVDs with all their friends and neighbors and intended for these consumers infringe, there's be a problem–but misleading.
This is, however, a step up from many of the copyright warnings named in CCIA's FTC complaint. Those, after all, are provably false. For example, each time they say that any copying without express permission is infringement, that's blatantly wrong.
But the warnings are misleading in other, more subtle ways, too. Some warnings don't state that copying without permission is infringement; they just tell you not to do it, strongly hinting that it is illegal. For instance, the sports leagues use this format:
This copyrighted telecast is presented by authority of X. It may not be reproduced or retransmitted in any form, and the accounts and descriptions of this game may not be disseminated, without express written consent.
Now, if you're going to be excruciatingly literal, “may not be reproduced or retransmitted” could be interpreted as meaning “we really don't want you to copy or retransmit this.” It might not mean that reproductions or retransmissions are per se infringing–it just strongly gives that impression.
A crabbed reading of the warning–a reading only a lawyer could love–might not mean that the sports league outright lied. But of course, most people aren't lawyers, and the question for the FTC isn't whether or not you can potentially extract a truth from this statement–it's whether or not the statement is unfair and deceptive. Literalness or not, it's certainly misleading, and it's certainly wrong.
Just like threatening CCIA with an inducement suit is.