MPAA Pretends To Be A Regular Defender Of Fair Use; The Evidence Suggests Otherwise | Techdirt

"We recently wrote about a case in which the MPAA signed onto an amicus brief arguing in favor of fair use, noting that it wasn't something you saw everyday (even if the MPAA just signed onto a brief written by some Stanford fair use experts, rather than writing its own brief). We saw lots of folks in the copyright world express surprise at the MPAA speaking out in favor of fair use, given the their general distaste for fair use. Because this is the MPAA we're talking about, it couldn't leave well enough alone, and decided to respond, with a silly blog post pretending that the MPAA has long been a champion of fair use, and that there's nothing out of the ordinary in it defending fair use. The blog post, written by lawyer Ben Sheffner is hilariously entitled MPAA and Fair Use: A Quick History. And, boy, it is quick. So quick it leaves out quite a bit of the MPAA's 'history' on fair use, and presents a rather inaccurate, misleading and one-sided portrayal of the MPAA's decades-long war against fair use. And, contrary to Sheffner's claims, the MPAA has not just argued that "piracy" is not fair use, but plenty of other things that most of us -- and the courts -- have, thankfully, determined were absolutely fair use. So, in the interest of accuracy (which we're sure the MPAA really intended as well), we thought we'd perhaps supplement the MPAA's history with some of the stuff Sheffner apparently 'missed' in his all-too-quick 'history' lesson. In researching this, I reached out to more than half a dozen copyright lawyers. Amazingly, each one sent back different examples of the MPAA fighting hard against fair use (there was plenty of overlap, but each one had a bunch of examples that no one else had) suggesting just how widespread the MPAA's fight against fair use tends to run. Frankly, the list got so long that I'm only providing the highlights here. A complete recapping of the MPAA's war on fair use would simply take way too long. Basically, the short summary of the MPAA's position might be summarized as 'when people sue us, we believe strongly in fair use. Otherwise... not so much.' Or, even shorter: fair use for me, but not for thee. Sheffner lists out five cases, all of which involved an MPAA member as a defendant. While he claims that it's not at all unusual for the MPAA to argue fair use, and that there's nothing surprising about its amicus filing, it is a rare case where the MPAA files an amicus brief in support of fair use. Normally, its amicus briefs related to fair use go very much in the other direction. Or, it's the aggressor and the plaintiff arguing against fair use. Let's start with the big one: Sony vs. Universal Studios, better known as the Betamax case, in which the movie studios tried to kill the VCR. The case was brought by a bunch of MPAA members, who argued that time shifting was copyright infringement and the VCR should be illegal for facilitating time shifting ..."