Further to my recent post on the issue of the women jailed for recording a few minutes of the Twilight sequel, New Moon, it has been announced that the charges against her have been dropped and she has been released from custody. A news story here contains interesting statements from both the producers of the movie and the proprietors of the movie theater where the woman was arrested. The respective statements say a lot more about the perceived dangers of digital copyright piracy than they do by way of apology to the woman who had inadvertently (if a little recklessly) recorded a few minutes of the film during her sister’s birthday party. Message to us all – read the signs in theaters that say not to use recording devices, and don’t expect that people enforcing the rules at the movie theater level, or even local police level, will necessarily give you the benefit of the doubt.
How would fair use possibly interact with camcording a film (not in this specific case, but in general)?
If a user wanted to produce a critical review and include a snippet of a film (and thus take advantage of the fair use exemption), they would first have to record the excerpt, then subsequently produce the review.
This leaves a period of time between the recording and the final review when there is only an unfulfilled intent to make fair use of a copyrighted work.
Would the initial recording always be considered infringing and ineligible for a fair use exemption during this time?
And could such a recording then later be considered a fair use, but only after the critical review had been completed?
Is there any way anyone could ever claim a fair use exemption for recording part of a film, if they are interrupted before completing the “fair use” work?
You raise an excellent point, David. So the question is should we interpret copyright law as necessarily allowing a small amount of copying of in order to make a later fair use? If so, there is a secondary question of contract. For example, if the movie theater regards the notices it posts forbidding recording devices in theaters as part of its contract for allowing you to see the movie, then is this a contractual attempt to negate fair use? If so, it’s kind of like the debates that come up with EULAs that require a user of digital video content to waive his/her “right” to make a fair use of content. I understand that’s still somewhat of an unresolved question in modern copyright law.
No doubt the contractual question is a separate issue and I was interested to read some of the background on controversies about EULAs.
As for allowing a small amount of copying as part of the process of producing a “fair use” work, Patry notes:
Convincing the court that the user actually was in the process of producing of a “fair use” work would be another matter.
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