Playing Fair with Fair Use

A straw in the digital wind?

Today, the Computer and Communications Industry Association -- a group representing companies including Google Inc., Microsoft Inc. and other technology heavyweights -- plans to file a complaint with the Federal Trade Commission, alleging that several content companies, ranging from sports leagues to movie studios to book publishers, are overstepping bounds with their warnings. The group wants the FTC to investigate and order copyright holders to stop wording warnings in what it sees as a misrepresentative way.

A sign, at least, that people/companies are becoming more aware of fair rights issues:

Justin Hughes, a professor of law at Cardozo School of Law at Yeshiva University in New York, said the notion of fair use is expanding in the digital age, with consumers getting used to copying CDs, for example, as a gift for somebody. A difficulty with the concept of fair use is that while the Copyright Act establishes what fair use is, the application of the rules is still somewhat subjective, said Mr. Hughes. They call for courts to consider several factors ranging from the nature of the use -- such as whether it is public or private -- to whether the reproduced work had any effect on the market for the original.

Such questions are cropping up more in the context of the Internet. For example, Google is arguing its project to digitize the world's books and make snippets of them available on demand falls under fair use; the Authors Guild and a number of major publishers disagree and are suing the search engine. By contrast, most scholars agree that posting a straight clip of a television show, as some YouTube users do, doesn't fall under fair use. YouTube, which Google bought last year for more than $1.7 billion, quickly removes them once copyright holders complain.