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Foul Use? of the United States the copyright laws and jurisprudence that these “copyright warnings” and Foul Use? of the United States. Seeking to ad- “anti-piracy warnings” on copyrighted dress some of the novel issues created works—such as television broadcasts FTC Declines by perfect digital reproduction and the and DVDs—materially overstate the instantaneous and wide-spread distri- rights of the copyright holders and to Take Action bution enabled by the Internet, Con- significantly understate or fail to men- gress passed the Digital Millennium tion uses permitted by the Copyright Copyright Act (“DMCA”) in 1998. The Act or the U.S. Constitution. The CCIA Against Allegedly DMCA, which amended the Copyright claimed that the copyright warnings Act of 1976, contained two controver- of these old media companies are Overbroad and sial provisions that have helped define overbroad and misleading, thus con- fair use in the digital age and pitted the stituting unfair and deceptive trade Misleading purveyors of “old media”3 against the practices under the FTC Act. Although disrupting technologies of “new me- the action purported to seek relief only Copyright Warnings dia”4 companies. The first provision— for such allegedly deceptive copyright codified at 17 U.S.C. § 1201—criminal- warnings, it appears to be but one part of a larger strategy by the new media BY SCOTT L. WALKER AND izes the production and dissemination of devices used to circumvent techno- industry to resuscitate the fair use doc- MATTHEW SAVARE logical measures intended to control trine, which has arguably been eroded access to copyrighted works. The and marginalized since the passage of eing avid fans of sports and en- second provision—codified at 17 U.S.C. the DMCA.7 tertainment and practicing at- § 512—creates a safe harbor for online For example, as any football fan Btorneys in those fields, we can and Internet service providers against can probably recite from memory, the not help but take notice of the copy- liability for copyright infringement if National Football League broadcasts right warnings used by the various they take appropriate measures to com- the following statement during each sports leagues, individual teams, stu- ply with proper notice and takedown game: “This telecast is copyrighted by dios, and publishers with respect to letters demanding the prompt blocking the NFL for the private use of our audi- their intellectual properties. Whereas or removal of allegedly infringing ma- ence. Any other use of this telecast or our involvement in this narrow area terial posted on the Internet. any pictures, descriptions, or accounts has usually involved impressing (or Since the passage of the DMCA— of the game without the NFL’s consent annoying) our friends and families which arguably has enhanced the is prohibited.”8 Similarly, Major League with an occasional primer on copy- rights of copyright owners—debate Baseball employs the following mes- right law, the Computer & Com- has ensued regarding the continued sage for its television audience: “This munications Industry Association viability of the fair use doctrine. In copyrighted telecast is presented by au- (“CCIA”)1 took action regarding those addition, content owners represent- thority of the Office of the Commissioner warnings by filing a complaint with ing the old media have filed countless of Baseball. It may not be reproduced or the Federal Trade Commission (“FTC”), lawsuits against new media companies retransmitted in any form, and the ac- alleging that the warnings constitute that have enabled the pervasive—and counts and descriptions of this game may unfair and deceptive trade practices oftentimes illegal—reproduction and not be disseminated, without express 9 under section 5(a) of the Federal Trade distribution of such content. This trend written consent.” Commission Act (“FTC Act”). is best exemplified by the recording In its complaint, the CCIA con- As detailed more fully below, in an industry’s high-profile and prolonged tended that such overbroad warnings unusually swift response, the FTC staff litigation against various file-sharing are not restricted to sports properties, decided on December 6, 2007, not to sites such as Napster and Grokster. The providing the following example from recommend that the Commission take CCIA complaint with the FTC is one of the Morgan Creek/Universal DVD, any formal action against the compa- the more recent examples of this ongo- The Good Shepherd: “All material is pro- nies named in the CCIA complaint at ing struggle. tected by copyright laws of the United this time.2 Despite the speedy resolu- States and all countries throughout the tion of this particular matter, the battle THE CCIA COMPLAINT world. All rights reserved. Any unau- between content creators and distribu- On August 1, 2007, the CCIA thorized exhibition, distribution, or tors to define the bounds of copyright filed a Request for Investigation and copying of this film or any part thereof protection and fair use in the age of Complaint for Injunctive and Other (including soundtrack) is an infringe- digital reproduction, distribution, and Relief (the “complaint”) with the FTC, ment of the relevant copyright and will consumption is sure to continue for the claiming that certain entertainment subject the infringer to severe civil and foreseeable future. and sports corporations,5 through criminal penalties.”10 their misleading and manifestly The CCIA objected to these warn- DRAWING THE BattLE LINES false copyright warnings,6 system- ings, and others like them, on three The proliferation of digital tech- atically misrepresent the rights of primary grounds. First, according to nologies and the rise of the Internet consumers under U.S. copyright law. the CCIA, the warnings purportedly economy have placed great strains on Specifically, the complaint alleged overstate the rights of the copyright Published in Entertainment and Sports Lawyer, Volume 25, Number 4, Winter 2008. © 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 912865_reprint.indd 28 4/16/08 1:37:06 PM holder by completely ignoring the in the old media such as the motion pic- ing authorization from the rights holders. public’s statutory fair use rights. Sec- ture industry—benefit from the “fair use This doctrine’s purpose is to balance the ond, the CCIA argued that claiming economy.” The authors of the study con- rights of copyright owners with the free that the “descriptions” and “accounts” tended that the overbroad copyright reg- speech rights of the public. Section 107 of games can not be disseminated is ulations of the past 10 years have eroded of the Copyright Act codifies the fair use “manifestly false,” because the Copy- the proper balance between copyright doctrine: “the fair use of a copyrighted right Act does not protect facts or protection and fair use. According to the work . for purposes such as criticism, ideas. Finally, the CCIA claimed that authors, these developments threaten to comment, news reporting, teaching . ., threats of severe civil and criminal stifle innovation, economic growth, and scholarship, or research, is not an in- penalties for unauthorized uses are global competitiveness. Thus, whereas fringement of copyright.” Section 107 misleading in that federal law encour- the complaint with the FTC alleged that also articulates the four-part fair use ages many uses that do not require consumers are harmed by misleading test originally conceived by Justice the copyright owner’s permission. copyright warnings, the study—citing Story in Folsom v. Marsh,22 stating: In sum, the CCIA alleged that these various empirical analyses—claimed In determining whether the use made “ warnings, through their explicit that the U.S. economy has become in- of a work in any particular case is a fair statement of prohibition, invocation of creasingly dependent on information use the factors to be considered shall harsh civil and criminal penalties, and technology industries. In the eyes of the include— ’ deliberate omission of consumers CCIA, these unbalanced copyright laws 1. the purpose and character of the ”11 rights, serve to mislead the public. use, including whether such use On October 23, 2007, another is of a commercial nature or is for new media trade association, the nonprofit educational purposes; Home Recording Rights Coalition IN THE EYES OF THE CCIA, 2. the nature of the copyrighted “ ” 12 ( HRRC ), filed a letter with the FTC work; ’ to supplement the CCIA s complaint, THESE UNBALANCED 3. the amount and substantiality of alleging that the dissemination of the portion used in relation to the the disputed copyright warnings is COPYRIGHT LAws copyrighted work as a whole; and analogous to other conduct that the 4. the effect of the use upon the po- 13 FTC has previously declared illegal. ENDANGER ECONOMIC tential market for or value of the Specifically, the HRRC argued that copyrighted work.23 in both In re: CTC Collections, Inc., et GROWTH AND al.14 and In re: State Credit Association, The protections afforded by the fair Inc., et al.,15 the FTC enjoined debt col- MILLIONS OF JOBS. use doctrine have been instrumental lection firms from sending debtors in fostering technological innovation, misleading letters regarding the debt- particularly the creation and expansion ors’ recourse for unpaid
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