2010-09-11 FCC Net Neutrality's Trojan Horse

There is an important exception to the copyright law that allows 'fair use' of copyright materials without the copyright owner's consent under a wide variety of circumstances. While many copyright holders consider this a 'loop hole' in the law, now that Congress has extended copyright coverage for as long as 120 years for corporations, it is more important than ever.

Martin Sheen was gracious enough to narrate my documentary Vietnam: American Holocaust for the SAG dayrate minimum because he believed in the project and knew that otherwise there was no way he could fit into my budget.

Of course, the reason I asked Martin to narrate had a lot to do with the leading role he played in Apocalypse Now, which is undoubtedly the greatest narrative film ever made on the war. So when it came time to make a trailer for the doc, I made fair use of about 15 seconds from Apocalypse Now so as to be sure that I made that connection for a younger generation that knew him only as our 'acting' president.

I posted the trailer to YouTube, Facebook and MySpace. Today, it only remains in the original form on YouTube. Both Facebook and MySpace took it down in short order, citing copyright infringement. The alleged infringement was not because I used some footage from Apocalypse Now, but because their automatic piracy detection software caught a few bars of The End by the Doors, playing in the background.

So on Facebook and MySpace I was convicted of copyright infringement by a computer program that knew nothing about 'fair use', had my trailer removed without warning and was told that repeated 'violations' could led to my account being closed. This is not surprising. Issues of 'fair use' are generally so complicated that it is difficult even for a court to make a determination, piracy detection computer programs, like the Hollywood corporations that promote them. have little use for fair use and would like to see it go away.

Fair Use is hard enough to rely on as it is. My fiscal sponsor, Carole Dean, doesn't want to hear about 'fair use' anymore. She told me she lost $50k on a fair use case. When she described what sounded like a textbook example of 'fair use', I said, "I don't understand how you lost." She said she didn't. The $50k was for lawyers fees and court costs.

Google, which is a product of the Free Software movement, and owns YouTube, takes a somewhat different stand on copyright infringement, and takes a strong position in defense of fair use, and they have the money to fight back effectively as in this landmark case.

Infact, when you allege to Google that your copyright in being infringed on, not only are your wishes not complied with immediately and without question, you are given this stern warning:

Please note that you may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is infringing your copyrights.

Indeed, in a past case (please see http://www.onlinepolicy.org/action/legpolicy/opg_v_diebold/ for more information), a company that sent an infringement notification seeking removal of online materials that were protected by the fair use doctrine was ordered to pay such costs and attorneys fees. The company agreed to pay over $100,000. Accordingly, if you are not sure whether material available online infringes your copyright, we suggest that you first contact an attorney.

The case that Google cited above, and which EFF defended, is one that would be a special interest to DKos Readers, since it involved the publication of Diebold emails relating voter fraud and their easily hacked voting machines.

Google, which has always and continues to stand in the corner of Internet freedom and network neutrality, doesn't want to see the FCC given new broad powers in the name of protecting it. It should be clear why certain bulk copyright holders and content providers would like the to FCC gain control of the Internet in the name of defending net neutrality for, as the legislation says, 'lawful' content, and would like to see Google's role in this discussion marginalized. What I still don't understand is why the DKos community is falling for it.