What is Fair Use in the Digital Age?

Hugh Pickens writes "General counsel for NBC Rick Cotton and Tim Wu, professor at Columbia Law school, continue their debate about copyright issues and technology on Saul Hansell's blog at the New York Times discussing Fair Use of commercial music and video as the raw materials for new creations. Cotton says that content protection on the broadband internet is really not a debate about fair use The fact that users can 'take three or four movies and splice together their favorite action scenes and post them online does not mean that these uses are fair. There needs to be something more — something that truly injects some degree of original contribution from the maker other than just the assembly of unchanged copies of different copyrighted works.' Wu's position is that 'it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use. This simple concept would bring much clarity to the problems of secondary authorship on the web.' This is a continuation of the previous discussion on copy protection."

Comments

Re:I'm not confused but the headline is!

[Shados]

There's misinformation on both sides. The amount of people who think that your right to a backup also includes making "backups" JUST IN CASE your nearest Blockbuster got broken into and had everything stolen, so you can be the hero and give em back copies of what they once had (/sarcasm) is pretty staggering, too.

Re:Someone didn't read the article...

[j0nb0y]

By that logic, self defense is not a Right because it is only a defense against a battery charge.

Self defense is a Right, and so is fair use. I'm not sure where this fallacy originated, but it is ridiculous. Actually, I know where it originated. It originated with the RIAA.

So why are /.ers parroting RIAA talking points?

Re:Fair use is very simple

[MasterC]

...i should be able to exchange my license to use this music with anyone else for a swap or money exactly like any other 2nd hand market.

Don't confuse fair-use with first-sale.

First-sale is really quite natural. Copyrights are placed on a non-scarce resource to make them scarce. It would be absolutely ludicrous to purchase a shovel and not be able to sell it for whatever someone else is willing to pay for it. If copyright wants to push IP to equal footing (no pun intended) of shovels then you should be able to sell your iTune or CD for whatever anyone is willing to pay.

The illusion that you can't/shouldn't/must not resell it is Big Media (TM) overencroaching on your rights. Fair use is but only one victim of DRM and first-sale is another.

I could make a similar argument against software that can be licensed only once (Steam: I'm looking at you!). MS products are another example of this.

Re:I'm not confused but the headline is!

[cens0r]

In the past (when VHS first came out) a video tape was released and it was very expensive. So expensive that only video stores would purchase it. At a later date, a home version may have been released at a regular price. Of course, as the years went on more people wanted to buy tapes and the studios realized they could make more money by just releasing it to everyone. By the time DVD was out the two release dates was almost entirely phased out.

Re:Someone didn't read the article...

[Atlantis-Rising]

Self-defense is not a right. It's an affirmative defense. Sibling poster is slightly confused in use, but not in content.

If you plead self-defense, you are pleading that you DID murder the person, but you shouldn't be punished for it because there were exonerating circumstances (namely that person was a threat to your own safety).

Fair use is similar. You argue that you DID copy the material without the owner's permission, but that there are exonerating circumstances that make it acceptable.

Re:Fair use is very simple

[cpt kangarooski]

That's great, but it has nothing to do with fair use. If you want that, get a specific statutory exception covering it.

Also please n.b. that with the exception of downloaded music, ordinary consumers don't license music at all. The stupid software industry has just managed to screw up how people think of their rights in connection with works and the scope of protection the works enjoy.

Re:Fair use

[15Bit]

> My personal view on fair use is much the same as my view on downloading - fine if you do it for

> yourself or with no intention of profiting from it, but bad if you attempt to sell it,
> whether through burnt DVDs in the market or using clips from films/pictures/music to bring
> people to your revenue generating website, and so on.

And this pretty much used to be the police attitude to copying CD's - arrest the guys selling out the back of a van but leave joe public alone. This was a largely agreeable status quo as only a limited number of guys could copy stuff, it cost money to do so, and a lot of folk would rather pay the full rate and get a decent quality inlay etc.

But in the broadband age the content producers are worried that everyone is able to download and it costs nothing. The music is the same whether you download an illegal version or a legal one, so there is therefore no compelling reason to pay. Its not that you are/aren't profiting, its that its so easy and free that everyone can do it. It therefore undermines their business model with the logical conclusion that with everyone downloading, no-one is paying. Now you could argue that this represents a flaw in their business model, but its still illegal.

Re:I'm not confused but the headline is!

[Anonymous Coward]

You might want to read up on copyright, since you're pretty misinformed.

To start with, the copyright office has a FAQ that's written in non-legalese that will give you the basics. Quoting from the very first entry:

Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works.

So far so good...that's exactly what was said by the poster you're replying to.

Continuing:

Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

• To reproduce the work in copies or phonorecords;
• To prepare derivative works based upon the work;
• To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
• To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
• To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work;
• In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

That looks damn near close to an enumeration of the protections offered the creator by copyright...and it's hardly unlimited, as you suggest.

But wait, there's more!

It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope....One major limitation is the doctrine of "fair use," which is given a statutory basis in section 107 of the 1976 Copyright Act.

Damn, now that sounds like the exact point being made by the poster you were replying to.

And yes, I've read the entirety of the legalese, and this summation is, while simplistic, entirely accurate (as one would hope, seeing as how it's published by the US copyright office). So you might want to have a good read before you pollute the slashdot forums with your uninformed, self-righteous drivel.

Re:Fair use is very simple

[AndyCR]

Resale can't work without the stringent DRM that's being forced on consumers. If you put it that way, the same is true of copyright law itself. "Copyright can't work without the stringent DRM that's being forced on consumers." That simply isn't correct. If you sell a song, you delete it. If you fail to delete it, law takes over, not some omnipresent nanny software.