Fair Use Antics

By Dennis D. McDonald

I'm listening to another one of Command Line's podcasts, this time Rant: Is Fair Use a Right? (Command Line produces one of my five favorite podcasts.)

Despite the logical nature of Command Line's thesis (he believes that copyright Fair Use is a "right," not just a legal defense) I'm still skeptical about being able to unambiguously explain to people what their "fair use" rights actually are.

At the same time, I don't believe that technology will ever be developed enough to simplify rights and permissions to the point where special dispensations for certain types of uses will become unnecessary. I think there will always be a tug-of-war between those who want copying and usage of intellectual property to be paid for, and those who want intellectual property to be "free."

The other nasty reality is that piracy will always be with us. No matter how well-developed our systems for rights and permissions become, there will always be someone out there ready to game the system.

The way that Command Line discusses Fair Use makes the idea fairly simple: for reasons related to promoting social benefit, at some point in time the rights of the copyright owner are modified and a work passes into the public domain, or there are certain types of uses that are legally permissible without seeking permission. Problems arise since (a) copyright terms (at least in the U.S.) keep getting extended and (b) the actual definition of Fair Use is impossible to codify in an unambiguous and universal fashion.

This situation has been exacerbated with the rise of technologies like photocopying, digital copying, and Internet based publishing. The costs  of duplication and distribution keep dropping while the management of the business transactions associated with those rights and permissions keeps getting more, not less, complex (think: DRM).

I'm of the school that unnecessarily complex systems for managing rights and permissions are ultimately self defeating since (a) they cannot operate without error (think: Sony Rootkit) and (b) they have the potential for adding unproductively to the cost of doing business.

That said, I'll be rooting for improved public discussions of "fair use rights," not because I think they will ever be explained and defined in a completely unambiguous way, but because I believe that the natural tendency of many publishers is to attempt to use technology and legal influence to enforce artificial business monopolies. Political support for "fair use rights" is one way to oppose such attempts to control access.

Ultimately, alternative business models that support the more decentralized creation and  distribution of intellectual property will evolve. We already see this in a variety of areas, including the use of the Internet to enable independent artists to bypass major music distributors, the use of the Internet to support peer-reviewed scholarly journals that bypass traditional publishing houses, and digital video distribution that bypasses local cable TV companies. (I haven't even mentioned the complex intellectual property issues raised by the increasing popularity of "social media.")

Since it is natural for existing businesses to use all the means at their disposal to protect their interests, including lobbying for additional copyright protection, it is also natural for Fair Use advocates to use public information and political leverage to promote their own interests as well.

Comments

[cmdln]

You raise more questions than I intended for my rant to address. I rather tend to agree that the exercise and expression of fair use rights will never be simple enough for a machine to mediate. I believe I said as much.

The goal, for me, of the rant was to try to get at the underlying value that informs fair use. As simple as those values may be to articulate in such an academic exercise, the real world applications are, as you suggest, very difficult to consistently explain. And as technology continues to change, with increasing rapidity, it only gets harder.

We spend so much time focusing on these difficulties, though, that I wanted to take a step back and just discuss some of the conceptual underpinnings. I did not mean to imply that the complicated circumstances we have to navigate as creators and consumers is other than what we've discussed in a variety of fora, just perhaps find a reminder of why we ask the hard questions about whether DRM will ever work, of how to re-balancing term extensions, et. al. (I tend to agree with you about the futility of DRM, by the way.)

[Howard Greenstein]

Try clearing the rights for a few seconds of video with a sound track. You may have to go to 6 agencies, and pay 10k or more.

Or worse, try getting the rights to a news clip from the 1960s or 70s with music behind it. No one at the network can tell you if you have the right to stream it on the net - they never got those rights when the clip was made, and there's no precedent.

If we had a little more clarity on 'fair use' we'd have a treasure trove of content available for people to learn from, try out, and use for education or even profit. RIght now what we have is people sitting on video assests of uncertain value.