PSA on copyright and fair use
Feb. 20th, 2017 08:43 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
rainwatersparkI started thinking about this after watching this video: "Why it's morally okay to pirate all of Nintendo's Games"
(Oligatory legal disclaimer: I do not represent anyone legally, please don't rely solely on what I'm saying, talk to a lawyer if you want to file a lawsuit or seek legal remedies.)
(Also: I'm a law student, not a lawyer, so I'll defer to any practicing lawyer's expertise.)
I'll admit that I couldn't watch all of the video because there was just too much legal failure going on.
Here's the first thing you should know: Most copyright holders don't actually enforce their copyrights to the fullest extent possible under the law. Reasons why probably have to do with the costs of litigation, general societal attitudes, and possibly fostering goodwill among a copyright holder's consumer base, since suing consumers for copyright infringement can be unpopular. But this is just to let you know that copyright holders can, legally, be extremely punitive (in most people's minds) in terms of claiming copyright violations.
Here's another important thing: Although copyright law scholars disagree about Fair Use, my copyright professor believed that Fair Use isn't as much of a protective shield as most people think it is.
The basic fallacy underlying the video is the claim that Nintendo is breaking the law by not honoring Fair Use.
In a word: No.
Fair Use is a legal defense against copyright infringement. It is not a right. To claim YouTubers have a "right" to Fair Use would be like saying you beat someone up and then sued your victim in court on the claim of self-defense.
Also, not related to the video above, but I believe there's a prominent YouTuber who threatened to sue Nintendo for asserting copyright infringement and denying Fair Use. You can't sue someone on the grounds of Fair Use. Trying to do so would get you thrown out of court for failure to state a claim upon which relief can be granted. (The only way it's possible is if Nintendo sued you first for copyright infringement, and you raise the defense of Fair Use.) Copyright law is designed to protect the rights of copyright holders, not consumers, by design.
Furthermore, Fair Use can only be determined by a judge. There's a 4-factor legal test. Basically, lawyers can argue whether something should or should not fall under the Fair Use defense, but no one will really know until a judge decides in a court case.
Unfortunately, I don't really know much about international jurisdiction for copyright, so I'm not sure how it affects this case that it's apparently Nintendo of Japan doing all the copyright claims on YouTube content.
So given that Nintendo isn't actually violating any laws, it's incorrect to say that it's "morally" okay to pirate their games (since the video's entire argument is that because Nintendo is "violating" the law, consumers can violate the law too).
(Oligatory legal disclaimer: I do not represent anyone legally, please don't rely solely on what I'm saying, talk to a lawyer if you want to file a lawsuit or seek legal remedies.)
(Also: I'm a law student, not a lawyer, so I'll defer to any practicing lawyer's expertise.)
I'll admit that I couldn't watch all of the video because there was just too much legal failure going on.
Here's the first thing you should know: Most copyright holders don't actually enforce their copyrights to the fullest extent possible under the law. Reasons why probably have to do with the costs of litigation, general societal attitudes, and possibly fostering goodwill among a copyright holder's consumer base, since suing consumers for copyright infringement can be unpopular. But this is just to let you know that copyright holders can, legally, be extremely punitive (in most people's minds) in terms of claiming copyright violations.
Here's another important thing: Although copyright law scholars disagree about Fair Use, my copyright professor believed that Fair Use isn't as much of a protective shield as most people think it is.
The basic fallacy underlying the video is the claim that Nintendo is breaking the law by not honoring Fair Use.
In a word: No.
Fair Use is a legal defense against copyright infringement. It is not a right. To claim YouTubers have a "right" to Fair Use would be like saying you beat someone up and then sued your victim in court on the claim of self-defense.
Also, not related to the video above, but I believe there's a prominent YouTuber who threatened to sue Nintendo for asserting copyright infringement and denying Fair Use. You can't sue someone on the grounds of Fair Use. Trying to do so would get you thrown out of court for failure to state a claim upon which relief can be granted. (The only way it's possible is if Nintendo sued you first for copyright infringement, and you raise the defense of Fair Use.) Copyright law is designed to protect the rights of copyright holders, not consumers, by design.
Furthermore, Fair Use can only be determined by a judge. There's a 4-factor legal test. Basically, lawyers can argue whether something should or should not fall under the Fair Use defense, but no one will really know until a judge decides in a court case.
Unfortunately, I don't really know much about international jurisdiction for copyright, so I'm not sure how it affects this case that it's apparently Nintendo of Japan doing all the copyright claims on YouTube content.
So given that Nintendo isn't actually violating any laws, it's incorrect to say that it's "morally" okay to pirate their games (since the video's entire argument is that because Nintendo is "violating" the law, consumers can violate the law too).
