CCIA Seeks to End ‘Misleading’ Copyright Warnings Through FTC Investigation
Sports leagues, movie studios and book publishers shouldn’t be allowed to intimidate consumers with misleading and false copyright warnings, the Computer and Communications Industry Association complained to the FTC Wednesday. Most importantly, the warnings ignore consumers’ fair-use rights under copyright law, the group said. It’s asking the FTC to check how much beyond actual legal protections the copyright warnings from Major League Baseball, the NFL, NBC Universal, DreamWorks, Harcourt and Penguin may have gone.
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The companies should be required to stop using their misleading warnings and produce corrective advertising to set the record straight, CCIA said. The warnings are “really intended to intimidate you,” said CCIA President Edward Black during a news conference. “The current conduct misleads millions of consumers.”
NBC defended the copyright warnings it puts on DVDs. They “adhere to long accepted legal standards and are nearly identical to the warnings used by some of CCIA’s own members,” the company said in a written statement. NBC is eager to push its programming onto new media and would expect to work with CCIA on reducing illegal use of its copyrighted materials, the company said. “Instead, it [CCIA] apparently prefers to irresponsibly waste taxpayer dollars by filing a frivolous complaint for the sake of little more than publicity.”
The “overreaching” copyright warnings highlighted by CCIA could harm innovation because consumers will be afraid to try new products that take advantage of fair use, Black said. “It’s not fair to the growth of the technology industry to convince consumers that copyright law is something different than it is,” he said. The group singled out the baseball and football leagues for the copyright warnings, familiar to most sports fans, that accompany telecasts.
Baseball tells its audience that games “may not be reproduced or retransmitted in any form, and the accounts and description of this game may not be disseminated without express written consent.” That’s untrue, Black said: “You do not need permission from the commissioner of baseball to describe Barry Bonds’ latest home run.” The FTC should also stop sports leagues from forcing consumers to forgo fair use through contracts like the fine print on game tickets, the CCIA said. They could be used to stop bloggers from covering sports events, the group said.
Such stringent warnings can undermine effective copyright policy, because shrewd consumers are likely to ignore them, Black told us after the news conference. Instead, copyright owners should be straightforward with their copyright warnings and tell consumers they're allowed to use works without specific permission in certain cases.
CCIA’s effort to promote fair use could backfire if it succeeds in changing these and similar copyright warnings, said Patrick Ross, president of the recently formed Copyright Alliance. Copyright laws let users make their judgments about fair use and defend themselves in court if necessary, he said. “CCIA seems to prefer that copyright owners decide what is fair use and then inform potential users what is in and out of bounds,” he said. And copyright owners might substitute lawsuits for playing “defense attorney” in warnings to would-be infringers, he said. “Apparently, CCIA wants more civil copyright infringement suits to be filed.”
CEA supported CCIA. “Many copyright warnings ignore consumer fair use rights and should be modified to reflect the true rights of consumers,” CEO Gary Shapiro said.
CCIA is amassing support from consumer groups hoping a public action campaign might spur the FTC to act, Black said. The Digital Freedom Campaign and the Library Copyright Alliance have signed on. CCIA also launched DefendFairUse.org to solicit petition signatures to be provided to the FTC.
There’s no guarantee that the FTC will act on a complaint just because public interest groups file it, said Womble Carlyle lawyer Mark Horoschak who worked as an assistant director to the agency’s Bureau of Competition between 1989 and 1995. FTC complaints are typically confidential, and the agency doesn’t have a record of bowing to political pressure, he said. CCIA might have more luck swaying the agency if it can bring out substantial consumer concern, he said. “If it appears there really is a groundswell of concern among consumers about a particular behavior in the marketplace, that would be something the FTC would look closely at.”
Now that CCIA has filed its complaint, an FTC staff attorney will likely review it to determine whether it merits further investigation, Horoschak said. If so, the attorney could recommend that a division of the competition bureau move forward with a 60- to 90-day initial-phase investigation in which division staff interview those involved and decide whether to move forward with a full phase investigation.
Attorneys for parties targeted by complaints typically try to convince these staff attorneys that no law violation exists and the investigation should be dropped, Horoschak said. “If you can get the staff attorneys on your side, it’s that much more difficult to push an investigation forward,” he said. For targeted parties, “it’s critical, if at all possible, to try to convince the staff attorneys that there’s no significant risk of a law violation nor any significant policy issues raised.”