November 2, 2005

Do Wal-Mart Consultants Have Fair-Use Rights?

In an age of cheap digital media, it's possible for Wal-Mart consultants to go to the anti-Wal-Mart movie and use a cell-phone to record parts of it:

Rick Jacobs, the chairman of Brave New Films, which is distributing the film, said he was considering filing charges against Wal-Mart and the consultant for attempted piracy. "You can't just go in and record a movie," Mr. Jacobs said. "Wal-Mart should know. They are the largest seller of DVD's in the country."
Why can't you go in and record 30 seconds of a movie? Are there no fair use rights when viewing a film? I think there are, but I know little about the impact of The Family Entertainment Copyright Act of 2005 on said rights.

If there are fair use rights, then a major problem with the "attempted piracy" charge is that Wal-Mart and its agents will have a pretty good case arguing that recording 1% of a film in order to discuss and rebut that portion -- not to sell or market it -- is fair use, official scary-looking FBI warning posted on the screen be damned.

I guess it's not often for a person or corporation to have such a clear interest as to generate a strong presumption of fair use in the film context...

(Note that I'm not arguing that Wal-Mart's consultant's rights were in any way crushed or violated, as the law gives theatre-owners broad though limited rights to detain those suspected of piracy).

Posted by Kevin on November, 2 2005 at 04:21 PM