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

I'm not confused but the headline is!

[garcia]

There is no difference in Fair Use rights in the "Digital Age". It's the same as it's always been. It's only because of the misinformation campaigns by the RIAA and MPAA that we have a society that's confused about the rights they have had for quite some time.

Unfortunately, the sheep are easily swayed over time (the frog/boiling water deal I suppose). I'm not fooled and hopefully they won't be able to fool intelligent judges either. They might buy over Congress but someone needs to put their foot down and stick up for us.

I'm tired of stories like this :(

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

[tungstencoil]

Offtopic, but here it goes...

Back in the day, I worked for a "big video store" (putting myself through school) - this was strictly VHS days. For most movies, think hard... ever notice they hit the rental shelves before you could buy it at Target or Wal-Mart? That's because of the "exorbitant amount for their films" (and $100 is about right). This is how the studios ensured they made a good chunk of cash off of VHS even though there was a lot of rental (and never mind that eventually the big rental houses entered into revenue sharing agreements). Once the fever died down, the price would drop to a "sell-through" price.

Exceptions were made, usually around family films and such. However, it did make it interesting when someone wrecked a brand-new tape, and you had to explain why you needed to charge them $104 to replace...

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

[porpnorber]

Even more important to note is that there are no rights, only privileges. Guantanamo Bay proves this: in the view of the US Government, even the protections of the Constitution are there only insofar as the President feels like extending them. More broadly, if 'self defense' is a defense, or capital punishment is permitted, then there is clearly no inalienable right to life, even in legal fiction. (Outside of legal fiction, of course, you've always been able to smash someone over the head with a rock.)

My point is not that the US sucks; it's that all of these things—even the privilege of breathing—are negotiable, and that the official mechanism for negotiating them is to vote; in this case for someone who actually gives a damn about people. (Traditionally, plan B is violent revolution, but that's no good—that's part of the pattern that needs to be fixed.)

The interesting thing about copyright as applied to people is that artists like to be recognised for their work, and they like to have an income. Interestingly, artists who rework the work of other artists generally have no trouble with this (though they have the same pair of concerns themselves, of course). It is corporations who want to be seen as the owners and originators of works that were in fact executed by people who they paid, or bought from, or stole from (pop quiz, from the business of most readers here: how many Linux kernel contributors can you name? How about Vista?).

I think the reason for this is that corporations, judging their success by market share, imagine themselves to be living in a zero-sum world, where they con only 'own' something insofar as other people do not. Individuals, on the other hand, who clearly have no hope of getting it all (whatever 'it' may be) are generally happy if their own reputation, or income, or standard of living, increases, even if other people's does too.

Of course, the parent's point that the law says what the law says and that there is a disinformation campaign underway to persuade you that all rights are reserved to some corporation by default, and indeed that peer-to-peer protocols are felonious by nature, oh, let me see, and that security research is immoral, and ... —well, the point is entirely well taken. And we mustn't be taken in. But it's only a small corner of the overall picture. Someone writes the rules, and presently, they are out of control.

"work that adds to the value of the original"

[Facetious]

And how would we measure that? Adding content != adding value. Conversely, a new blend of old content can change the contents "feel," message, and/or meaning. I would love to see the "value matrix of subjective content."

Someone didn't read the article...

[langelgjm]

There is no difference in Fair Use rights in the "Digital Age". It's the same as it's always been. It's only because of the misinformation campaigns by the RIAA and MPAA that we have a society that's confused about the rights they have had for quite some time.

Someone didn't read the article :-) To quote Rick Cotton (the bad guy):

Fair use in the digital age is the same as fair use in the non-digital age.

First of all, as Mr. Cotton duly notes, and as we often hear here on /., there is no such thing as a fair use "right." It's only a defense against infringement. To respond to your point, I'd argue that since the technology has changed so drastically, not only for enabling infringement, but also for enforcing copyright, the laws ought to be looked at again. What wasn't even on the map when fair use was being hashed out in various cases is now commonplace. It's time to reevaluate. Fair use should change as a result.

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

[Atlantis-Rising]

Except that self-defense is not a right, and neither is fair use. Both concepts have little basis in law.

Now, as to the legal concept of being allowed to plead in the alternative, you'll never see me doing that. It's a disgusting practice that I have never yet seen an honorable purpose for.

Then again, I have a problem with plea bargaining in general, too, and only 2% of cases reach trial. So obviously my views are not well supprted in the judicial community.

Ironically, I was reading the origins of the adversary criminal trial a few days ago, and back in the day the English legal system would not allow lawyers for the defense- they were seen to do nothing more than muddy up the truth by introducing all sorts of extraneous concepts. Old-fashioned indeed, but I feel similarly about most methods of pleadings these days.

In any case, to return to the issue at hand, It is my opinion that intellectual property is a necessary creation of the state for the simple reason that capitalism as a pure system is doomed to fail. It requires a system of economic knowledge which is simply impossible. Similarly, intellectual property is basically 'regulation' of the intellectual marketplace.

Within that framework, then, you have no more right to fair use than you have to unregulated trade. It may be possible under certain circumstances when the legislative context is correct, but it's certainly not guaranteed. It is not a right at all.

Self-defense is arguably similar. The state has a monopoly on the use of force; it may be possible under certain circumstances when the legislative context is correct for an individual to wield force against another, but it's certainly not guaranteed.

Re:Fair use is very simple

[loki_tiwaz]

I've never understood why it isn't simple - if you make money off it, it's piracy, unless you negotiate a distribution license. Everything else is fair use. This breaks down a little bit in the context of sites like youtube or showing them on a television show. Thinking it through, I think that such a form of distribution is actually advertising and the copyright holders should leave them alone because it's advertising that reaches fans directly, the people who they are marketing to, right?

Re:debate bias? Bias? Here's a form of bias?

[davidsyes]

"What is Fair Use in the Digital Age?"

The same that applied in pre-digital, digital ages:

Do not fold, spindle, or mutilate. There. Now, transferring that age to this age, add: "Don't digitize or compress; decompression not guaranteed" the membership.

Re:Here's Where Cotton is Right, Wu Wrong

[reallocate]

How do the courts determine when an altered copy, of anything, represents "added value"?

If the courts can do that, how, then, can they decide how to apportion the revenue from the altered copy?

My fundamental problem with the notion of added value is that it is an "in the eye of the beholder", "he says, she says", kind of opinion. In practical terms, no one is likely to tell a court that his altered copy removes value.

My deal with the RIAA/MPAA

[AmiMoJo]

Here's the deal. You get to use publicly owned material like the English Language, classical music, out-of-copyright books and traditional stories (hello Disney), pictures of public places (including MY HOUSE damn it), regional accents etc. in return for some fair use rights and a limited (say 15 year max) copyright term. Sound fair?

Nothing that big media produces is entirely original. Apart from the fact that they use a public domain language (English) with slang and common metaphors not written by them, they of course are inspired by earlier work. Bands like Oasis wouldn't exist without The Beatles, yet they pay them no fees. The Matrix is just an updated version of Descart's "I think therefore I am" idea.

Either they give something back or they start paying.