McCain, Fox News, and “Fair Use”
A copyright infringement argument has sprung up between John McCain and Fox News recently. On a Republican presidential debate hosted by Fox News, John McCain had a sharp criticism of Hillary Clinton’s attempt to give $1 million of taxpayer dollars to a Woodstock museum. McCain had the following to say about Woodstock:
I wasn’t there. I’m sure it was a cultural and pharmaceutical event. I was tied up at the time.
That’s pretty funny, and I laughed when I heard it. McCain quickly took the 25-30 seconds of the debate video and made a presidential ad out of it. In response, Fox News issued a cease-and-desist letter to McCain’s office, telling him that he was not allowed to use Fox’s coverage for his presidential ad. McCain used the clip anyway, and now many groups with wildly different views on politics have come together to denounce Fox for trying to stop McCain from using their clip. Mitt Romney even made it a point to inform Fox News that he’s going to use their footage without their persmission. Most of the criticism leveled against Fox seems to be centered around the idea of “fair use.” Since the video clip shown was so short (30 seconds out of a 90+ minute debate), it was not shown for commercial purposes, and because the clip contains information an issue that is very important to our society, Fox News should not be able to stop McCain from showing the clip.
I agree that McCain has not violated Fox News’ copyright, but I don’t agree with most of the arguments I’ve heard against Fox. This is not easy for me to explain, but I’ll try now.
I believe that Fox News is the rightful owner of the debate video that was broadcast on its network, and Fox is well within its rights to stop any action that prevents it from exercising its control over its intellectual property. The “2007 Republican Presidential Debate hosted by Fox News” (or whatever it is called) is a piece of property created and owned by Fox News, and if you want to use that property you have to get Fox’s permission. So how can I say McCain to use a clip of that video without Fox’s permission? One sentence in Ayn Rand’s Capitalism: The Unknown Ideal completely changed the way I saw intellectual property, and I think it might make this issue easier to understand:
The inheritance of material property represents a dynamic claim on a static amount of wealth; the inheritance of intellectual property represents a static claim on a dynamic process of production.
Since owning material property is to possess control over something that exists, an owner of material property can cut that property up and still claim rights over every piece. For example, if you own a stick of butter and you cut it in half, you now own two half-sticks of butter. Your property right is claim on a specific piece of property, and by splitting it you merely changed the makeup of the object that you already own. Intellectual property cannot be cut up in the same way, however. An owner of a piece of intellectual property cannot necessarily cut up that property and then claim the same ownership rights over the pieces as he or she does on the whole. For example, an author cannot take one sentence out of a copyrighted book and claim to own the right over that sentence based on his copyright over the entire book. Ownership of a piece of intellectual property is the abilty to control the production of that property. Taking small bits out of a copyrighted work, like McCain did when he took the 30 second clip from Fox’s debate, does not harm Fox’s ability to control its property. Fox owns the publication rights of the debate, but it does not own the publication rights over every single word that was uttered on that tape.
This is not a limitation of copyright; it’s the definition of copyright. To own a copyright on a work is to own the copyright on that work, not every word or note that makes up the work. Many people think that the taking the concept of copyright to the “extreme” means that intellectual property owners will be able to stop anyone from seeing, hearing, or even talking about that content without explicit permission from the owner, but that’s not the truth. Copyright covers works created by individuals, and that’s all. Did McCain’s 30-second clip infringe on Fox’s ownership of the 90-minute debate? No.
Or did I, for that matter, violate the copyrights owned by the estate of Ayn Rand when I posted one sentence she wrote. No, I did not. Imagine what blogging would turn into if single sentences could be copyrighted!
I think this type of confusion about copyright comes from the backwards way that people often view copyright. Instead of treating copyright as the way to protect an individual’s creation, people treat it as a set of restrictions on what an individual can do. I think the latter approach lends itself to the idea that there has to be some “fair” balance between complete restrictions and no restrictions. Rights cannot be balanced, though. The only valid question is whether Fox has the right to control that clip.
I see one valid way for Fox to stop presidential candidates from using its video like this. All it has to do is make presidential candidates agree not to use the video in anyway in exchange for a spot on the debate. It wouldn’t stop people like you or me from using clips, but it would have given Fox a valid argument to use against McCain.
Tags: [copyright, fair use, fox news, intellectual property, mccain]Comments
Copyright Royalty Board Ruling (2)
I received a reply to my previous comment on the recent copyright royalty ruling, and I responded with this:
I don’t have a problem with the RIAA lobbying this government board because they are lobbying for their own property.
The little secret that the anti-RIAA side won’t tell is that webcasters depend on government intervention to keep royalty rates low enough to allow them to broadcast their stations. If this issue was left to the free market where the content owners were allowed to set their own rates, the RIAA would probably set high rates similar to what we saw the government board set. That’s why webcasters are urging their listeners to contact legislators to try to make the government set a low rate rather than try to get the government out of the business all-together.
I know that some artists have come out against the rate increase, and they’re paraded as examples of how webcasters are siding with interests of content owners. However, so long as those artists have signed with labels that are members of organizations such as the RIAA, they’ve voluntarily give up their say in what happens with their music. It’s part of what goes with the paychecks they receive. They traded their music for money from someone that wants to sell their works. Once the property rights over that music have been transferred to another party, that second party has the same rights over that music that the content creator had. So, I really disagree with this idea that the RIAA is somehow taking artists’ music or getting in the way.
I don’t want to take Gus’ comment list, but there is one more thing I’d like to address while I’m writing about this: Webcasters bemoan the fact that the internet rates are so much higher than AM/FM radio rates, and claim that they are unfair. I have two responses to that statement. First, and most importantly, content owners decide what is “fair” when it comes to their property. It would be more fair if the RIAA charged $100 per song per listener than if the government set the rate to a level webcasters could afford. Second, broadcasting music over the internet brings has problems that don’t exist when broadcasts over the airwaves. The first problem that comes to my mind is the fact that internet broadcasts can be ripped easily, turning some stations into a real-time music file-sharing system. I believe that the majority of webcasters are honest and that the bitrates the music is streamed on probably stops most people from trying to steal music in this manner. However, there is an increased risk for the RIAA here, and I can understand why they would want to try to better secure their property. It’s the same reason much of the music purchased online has DRM built-in. I think it’s perfectly fine to debate whether the RIAA is following a good business model when it comes to online distribution (personally, I won’t buy any more of their DRM’d music, it’s too much of a hassle), but what should not be up for debate is the RIAA’s right to their property.
Sid said:
“The alternative method — negotiate with content owners — is, quite frankly, impractical.”
It’s statements like this that make it easier to understand what the RIAA is up against. This is not an issue of how much should be charged for internet broadcasting, it’s for who actually controls the content to be broadcast. I believe that all personal property, whether material or intellectual, should be respected.
Tags: [copyright, government regulation, intellectual property, internet radio, royalty rates]Comments
Copyright Royalty Board ruling on webcasting rates
Gus Van Horn wrote a post discussing the recent U.S. Copyright Royalty Board’s ruling to increase the rates webcasters owe for broadcasting music over the internet. His previous posts on this issue are what alerted me to the problem, so I wrote my feelings about the ruling as a comment on the post:
Tags: [copyright, government regulation, intellectual property, internet radio, royalty rates]Hi Gus. I saw the news about the internet royalty ruling today, too, and since I’ve been thinking and reading about this issue since your last post on it I thought I’d post another comment.
The problem with the rates that the government set is not that the rates are too high or low, but the fact that the government has any say in the rates at all. Those who hold the rights of the music should set the rates, and nobody else. It’s their music, so you need their permission. But so long as the government is playing a role in this issue, the government should side with the content owners. Like I said in my previous comment, the government should not be trying to balance the rights of the content owners with the wants of the broadcasters. Since SoundExchange seems to be very happy with the ruling, I’m more apt to believe that the correct ruling was made.
I disagree with how this issue is framed as a question whether “internet radio” will be allowed to continue. Internet radio will continue. This ruling doesn’t take away any broadcaster’s right to play music to which he or she has permission. What this ruling affects is what it will cost for some broadcasters to get permission to play some music, and it’s setting the cost to a rate that the content owners want. That’s all. Nobody’s individual rights are being violated (except the property owners for having negotiate with anyone about their own rates).
Imagine what would happen if the government gave the internet broadcasters the low rates they wanted. The government would essentially be telling the RIAA, “We don’t care what you want to do with your property, because internet radio must be preserved.” What is “internet radio?” Playing music over the internet? Whose music? Playing it to whom? These aren’t questions you’ll find answered on sites like saveinternetradio.org. There, you’ll just find easy ways to get in touch with your legislators and pressure them to take from the RIAA what you want.
I’d like to finish by pointing out that despite this ruling, it’s never been easier to listen to the music you want legally. Many websites allow online streaming and will continue to do so. Some even allow you to play a low monthly fee to have unlimited access to millions of songs, and even download them all to your mp3 player. For $12 a month, you can have a music library that beats the biggest internet music pirate. I think online music is going to be ok.