Copyright Sheeple
I hate seeing our culture give in to FUD about copyright, to the point that we are more sheeple than people, bowing to even non-existent “rights” that exist only as wishful-thinking on the part of media conglomerates and– through some kind of telephone-game-style echo-effect– in the minds of educators.
The following, from a chat session today during a presentation on fair use, illustratea what I mean… however well-intentioned, this statement is precisely and absolutely WRONG in the context of fair use:
“One thing I always tell students, though, is that YOU are not able to say whether the item can be used without pay – the creator of the material has that right.”
In fact, the point of fair use provisions is that YOU ARE able to say what can be used and the creator has NO right to prevent you (and some have tried, through legal means and through other means of coercion). No one should ask for rights they already have or feel that they need to… they should simply and freely exert them.
Themocracy
You’re absolutely right, and I remind myself of this each time I have a copyright conversation. However, it’s quite easy to rapidly degrade into a state of fear when a lawyer gets involved…
Absolutely.
Wouldn’t it be nice if our institutions had our backs?
What concerns me most is the level of fear before lawyers get involved. Generally, if it ever reaches that point, it will be in the form of a cease & desist or a DMCA takedown notice, and then it’s a different (and real) decision point.
Still, it’s not the fear that needs to be addressed as much as people learning what their rights really are so they even have a chance!
The level of fear after the lawyers do get involved is also a problem, though–legal training includes a great deal of risk aversion, i.e., how can you keep your client out of trouble? Most lawyers are going to give the answer least likely to involve litigation. In a copyright context, that’s going to involve asking for permission even in cases of fair use. If an attorney gives (correct) advice about fair use that ends up in litigation and the client wins the lawsuit, it doesn’t really matter that the client has won a victory for fair use: the client has had to pay the costs of a lawsuit, and is likely to seek another attorney. The long-term effect on fair use is less of an incentive for any individual lawyer than the need to retain clients.