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| Sunday, July 30, 2000
Copyright © Las Vegas Review-Journal COLUMN: Thomas Mitchell Running 'fair use' into the ground
The notion of the starving artist is muchly overromanticized. Everyone craves to be lauded for their skills and talent with the sincerest form of flattery -- green folding cash.
That's why Metallica and other musicians went to court when they discovered hundreds of thousands of fans were swapping digital versions of their songs on the Internet, instead of shelling out for the CDs and tapes sold by their licensed recording labels.
This past week a federal judge ordered a halt to the trading of copyright-protected music on the Web site Napster. The judge noted that up to 70 million people were expected by year's end to be using the Napster site to infringe on music copyrights.
The very notion of intellectual property rights -- copyright, trademark, patent -- is being assailed from a number of fronts these days. But the assault, like everything else under the sun, is not new. It is simply automated and more efficient.
You can have banks of hunched-over monks copying Socrates and Plato, or slide a textbook into the photocopy machine.
You can have an unlicensed performance of Shakespeare in the barn, or slide a tape into the VCR.
You can hire musicians to perform Mozart, or tape a few copies off a CD.
You can call some friends and read a newspaper story to them, or you can cut and paste the story off the paper's Web site and spam the Eastern Seaboard.
In any case, these acts essentially rob the originators of some small portion of their ability to make an honest living off their creativity and labor. If you write the great American novel, build the better mousetrap or create a successful brand name, you expect the law to prevent interlopers from stealing your profits.
In the news business, a seminal case occurred in 1918, when the Supreme Court ruled that an upstart news service had no right to rip-off the news copy of The Associated Press and send it out on its competing commercial wire service. The court said no one can own the news and prevent others from gathering the same facts, but news reporters had a right to have their unique works protected from outright misappropriation by a competitor.
But the courts have held there is a right to fair use. I can quote a certain amount from works of others in this column without fear of legal entanglement so long as I attribute to the original source and don't pretend the words are my own. The privilege has been extended to parodies of printed and musical works.
The courts also have held that individuals can copy works for personal use. You are not violating a copyright if you tape a movie off your TV. But you are if you make hundreds of pirated copies and sell them.
Napster's defense was that visitors to its site were simply applying the fair use privilege.
It might be analogous for movie producers to sue Sony for making VCRs and publishers to sue Xerox for selling copy machines. They simply make the efficient tools used by the pirates. Do you go after the burglars or the makers of crowbars?
But Napster users were applying this fair use privilege in such volume as to be damaging to the bottom line of the copyright holders.
At the Review-Journal, we ask the honest folks who call to ask permission to use our stories and photos to give us credit and not alter our works, as well as to use them for only personal or noncommercial purposes. If someone wants to use something on a Web site, we ask that a brief summary be used along with a link to our site. We sell ads in both the paper and on the Web. These pay our salaries and help keep down the price we have to charge for access. Of course, we want as many eyes as possible on our intellectual property.
I know, I know. This from a person who always advocates free access to information and a free exchange of ideas. But I don't expect the originators of those ideas to work for free.
Thomas Mitchell is editor of the Review-Journal and writes about the role of the free press. He may be contacted at 383-0261 or via e-mail at Thomas_Mitchell@lasvegas.com.
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THOMAS MITCHELL
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