Expanding the limits of fair use

San Francisco Chronicle: Debate heats up on what's protected by copyright laws. Excerpt:

The new documentary "War Made Easy" isn't just a searing critique of how administrations over the past 40 years have manipulated the media to build support for war. The 72-minute film is a media provocation itself - a challenge to federal copyright laws.

Based on a 2005 book by Bay Area media critic Norman Solomon and narrated by actor Sean Penn, roughly 90 percent of "War Made Easy" consists of archival news footage from major television networks that would cost a ton of money to license - if the filmmakers had paid for all of it; they bought only about 60 percent from distributors.

The filmmakers say they are protected under the "fair use" provision of federal copyright law, a measure that is being tested in ways unimagined when it was codified 30 years ago. ...

Over the past few weeks, CNN, ABC and NBC have announced they will allow footage of the presidential debates that they broadcast to be used on other media platforms under certain conditions. For example, NBC requests that debate footage not be used for commercial purposes, that the network's moderators or journalists not be used in campaign advertising and that its logo be prominently displayed when a clip is used.

But while some of those provisions sound similar to what's in federal copyright law, what is fair use remains the subject of debate.

"The similarities in all this is that we're all feeling our way in the digital era in the area of fair use," said Patrick Ross, executive director of the newly formed Copyright Alliance, a Washington trade group whose supporters include movie studios, television networks and artists interested in preserving copyright protection.

The networks' decisions "are fantastic for anybody who has anything to say about the presidential race," said Anthony Falzone, executive director of the Fair Use Project at the Center for the Internet and Society at Stanford University. "What you're going to see in this election cycle is an explosion of people expressing themselves in different ways using video. This is going to get more people participating in the process."

After seeing how debate clips turned up on YouTube and blogs - and were mashed up into parodies - "the networks realized that you can either work with people or you can fight them," said Jason Schultz, an attorney specializing in intellectual property law at the Electronic Frontier Foundation in San Francisco. ...

Free content is being pitched as a civic offering, as CNN announced May 7: "The presidential debates are an integral part of our system of government, in which the American people have the opportunity to make informed choices about who will serve them. We believe this is good for the country and good for the electoral process."

In recent weeks, other networks - including NBC and ABC - have changed their policies to allow use of footage from the presidential debates. NBC's policy went into effect after last week's AFL-CIO debate in Chicago, which was broadcast on MSNBC.

Getting the networks to release their debate footage is a rare example of bipartisan media organizing; liberal organizations like MoveOn.org and conservative commentators like Michelle Malkin joined forces to pressure the networks.

"We know that people are going to do it. This just legitimizes it," said Mike Krempasky, a conservative who founded RedStateblogs.com.