On the heels of Walt Mossberg's great video and blog post at the WSJ, this time it's Real Time's Jason Fry questioning the current state of copyright. Here's just a part of Jason hitting the nail on the head:
A problem lurking around all these events is the steady erosion of the right to fair use in favor of the rights of content owners, who have found the simple threat of copyright litigation is a valuable weapon.
Take YouTube, where content owners have negotiated with Google by alternately enjoying the promotional benefit of users uploading snippets of their shows and ordering Google to take such snippets down en masse. And as with too many other digital-age battles, the arguments surrounding YouTube clips miss the point — episode after episode of this lawyerly drama is about sparring over laws, instead of debating the appropriateness of those laws.
Look at the National Football League's claim of copyright infringement for a Brooklyn Law School professor's posting video of its copyright notice, as covered by my colleagues on the Law Blog last week. The NFL spokesman's first point to the Law Blog is that the clip included “game footage” as well. Which is true — the copyright notice was followed by 20 seconds or so of an utterly mundane kickoff. But to be blunt, who cares? Forget what the Digital Millennium Copyright Act might or might not say for a moment and ask yourself this: What possible harm there is in posting of 20 seconds of a play no sane football fan would ever care to see again? And even if the play had been an important one, would that 20-second snippet really have destroyed the market for NFL highlight films? Would it have impacted that market in any way? Does the ability to see bits from “The Daily Show” or “Saturday Night Live” really mean you'll never buy a DVD of a given season?
If the answer's “no, of course not” — as I argued in this Real Time from last fall — then it's intolerable that such material routinely appears and disappears from our cultural conversation, or that artists from hip-hop auteurs to documentary-film makers should have their creativity de facto limited by the daunting time and expense of clearing samples and snippets. (Ever wonder why “Behind the Music” rarely includes a band's music or concert clips?) And if the answer's “maybe,” shouldn't we give dire predictions time to play out rather than assuming they're true? Should the possibility that a content owner's bottom line might be impacted really outweigh the artistic and social value of making bits of video available for people to view, reinterpret and comment on? Why is the argument with the NFL spokesman, instead of with the law the NFL uses to threaten YouTube?
The conventional wisdom is that these lawsuits and maneuvers are just tough negotiating tactics on the way to deals being struck and clarity emerging. And maybe that's true. But isn't there a better way to get to a middle ground than piecemeal negotiations that do nothing to address laws that both seem out of touch with technology and astray from their original intent?
Once again, thanks to Rob Sama, where I found the Real Time article.