Coding Fair Use

An Anonymous Coward writes: "A report from CFP2002 on the tension between making fair use clear and retaining ambiguity to facilitate the application of fair use to future technologies." Lots of good papers available from the Fair Use By Design workshop and the conference in general.

Comments

for when the site get /.ed

[56ker]

Posted on Tue, Apr. 16, 2002 Can We Design Fair Use into Content? Posted by Dan Gillmor I'm at the Computers Freedom and Privacy conference in San Francisco, attending a workshop on the topic of "fair use" -- a term that has many descriptions and applications. There's a lot of law on the whiteboard, including a variety of doctrines that show up in black and white in copyright law -- Sections 107, 110, 108 and a host of other elements. The vocabulary often incorporates more than what many copyright lawyers tend to discuss. Ann M. Bartow, assistant law professor at the Unviersity of South Carolina, argues that the law should ultimately incorporate what people do in real life -- and that we have to reduce the complexity inherent in today's statutes. Here's her presentation (PDF; 264 KB). "Don't we deserver a copyright law we can understand and follow?" she asks. Fred von Lohmann, senior staff attorney at the Electronic Frontier Foundation, is arguing for ambiguity. He thinks copyright law needs to leave room for innovation as new technologies come along. An audience member asks if this ambiguity is what lets lawyers threaten people with lawsuits for non-infringing uses, intimidating them into taking down Web content that should remain public. We need a floor, von Lohmann says, not a ceiling on permissible activities. The floor for the entertainment and other "content" industries is increasingly clear. They don't fundamentally believe in fair use, and they see technology as a way to turn everything into pay-per-view -- a system that would eliminate fair use almost completely. Turn that around. Can fair use be turned into code? That is, can we use technology to ensure it, just as we can use technology to take it away? Stefan Bechtold, from Stanford Law School, thinks it can -- at least in some circumstances. But the law is still going to be needed, he says. He thinks digital rights management can be progressive, while law is conservative. The key word is "can" -- and the evidence is not behind him. Both, as currently established, are highly restrictive. What's progressive is technology, which makes hash of attempts to control content. Any digital rights management system is going to be broken.