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Rights Holders Cry Foul on Fair Use Abuse

31 Oct, 2002 By: Bruce Apar

NEW YORK CITY -- The concept of “fair use” in copyright law does not grant consumers permission to make permanent copies of software they have paid to own or to view.

So said Fox Entertainment and Motion Picture Association of America (MPAA) lawyers, who spoke this week at a Kagan World Media seminar on digital rights management.

“There is no ‘buy one, get one free' concept in copyright land,” said Fritz Attaway, EVP and Washington general counsel for the MPAA, adding, “at least with respect to movies.”

In a keynote speech, Ron Wheeler, Fox Entertainment SVP, content protection, said of fair use, “Rarely is a legal concept more often misdescribed.” He took to task those who advocate that copying one's own DVDs or CDs constitutes fair use under the copyright laws. Fox, he said, is “very concerned” about permanent copies. “Fair use is not a right,” Wheeler explained, alleging it is invoked by some “to avoid [being accused of] copyright infringement.

“The proponents claiming fair use have the burden of proof. It is not a set of uses, but a mode of analysis used by the courts. Not all convenient uses are fair uses.”

Kagan World Media COO and senior analyst Larry Gerbrandt said fair use is “balancing an acceptable level of piracy” on the rights holder's side “with an unacceptable level of annoyance” on the user's side.

Wheeler scoffed at the need for backup copies of protected content being used as an example of fair use, saying the “failure rate of DVDs and CDs is way less than 1 percent.”

He also challenged the fair use argument that copies are legitimate when made for purposes of “platform-shifting” and “space-shifting.” That is when a purchased copy is duplicated for playback in a car or on a portable device. He suggested a scenario where, since a camcorder legally can be carried into a movie theater, it becomes legitimate to “space-shift the movie” to enjoy it outside the theater as well. “Why not?” asked Wheeler, tongue-in-cheek. “You paid for the ticket.” The MPAA's Attaway later said camcorders in theaters are the biggest source of piracy.

Wheeler argued if such forms of copying proliferated, it would affect box office receipts, and the cost of admission would rise dramatically to offset the studios' losses. He said the logical conclusion is that the studios would end up pricing every window -- from theatrical to video-on-demand -- “as a sellthrough video,” on the assumption users would make and keep permanent copies.

Asked about the Flexplay DVD technology that limits the number of plays, Wheeler responded that Fox favors anything that effectively protects its content. “DVD is a great example of content that is copy-protected and works in mass distribution.”

Addressing file-sharing on the Web, Attaway said: “We have to do a better job making people understand that taking content off the Internet and not paying is as wrong as shoplifting in a Blockbuster.” He noted that “the pricing form of digital rights management is working well for the movie industry,” since, unlike CDs, DVDs are considered a fair enough value to not encourage widespread copying.

Several speakers called for earlier video-on-demand release to help prevent movies from being “Napsterized” online. Attaway later told Video Store Magazine that's a decision the studios are prepared to make “when it is in their economic interest to do so.”

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