It would be my guess that the readers of this blog know more than the average bear about copyright law. So you, like me, have probably been mildly annoyed at times when presented with a copyright warning that goes well beyond a notice of an assertion of exclusive rights granted by the Copyright Act. You know the ones I’m talking about: “This film is protected by copyright law. If you so much as hum a tune found herein, the FBI will burn down your house.”
Well, it seems the Computer and Communications Industry Association is even more annoyed than the rest of us. Wednesday, the CCIA filed a complaint with the Federal Trade Commission alleging that overly-enthusiastic copyright warnings constitute unfair and deceptive trade practices. The complaint points in particular to the NFL’s well-known admonishment that any public use of “pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited” and Major League Baseball’s requirement of the Baseball Commissioner’s “express written consent” to disseminate any “accounts and descriptions” of the game. Of course, that’s all hooey: repeating facts about a sporting event has nothing to do with copyright law, since facts themselves are never copyrightable. Likewise, Harcourt Books’ warning that “No part of this publication may be reproduced or transmitted in any form” just isn’t true; limited portions (and, sometimes, the whole thing) may be reproduced or transmitted for purposes of fair use, and the whole thing may be reproduced or transmitted under certain circumstances under 17 U.S.C. 108.
I’m not entirely sure that this sort of misbehavior is all that harmful: the Commissioner of Baseball could claim he was Marie of Roumania, and it wouldn’t make it so. Misinformed consumers might refrain from lawful activities that they otherwise would have enjoyed, but I’m not convinced that many consumers are cowed by scary legalese. Consumers — rightly or wrongly — do whatever they want and know they won’t get caught; businesses, who will get caught, are sophisticated enough to figure out that these warnings are baloney. If anything, consumers probably identify the exaggerated copyright warnings for what they are, then lump legitimate copyright notices with the hooey, to the overall detriment of consumer copyright compliance. The relief the CCIA requests would no doubt be a good thing: it would enjoin copyright notices that lie about the scope of copyright. But I’m not sure that would have much practical effect other than achieving the (concededly Right and Noble) goal of shielding copyright geeks like me from annoyance.
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