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

Fair use is very simple

[timmarhy]

If i've purchased a song, i should be able to use it anywhere,on anything and at anytime of my choosing for personal use, and 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.

Re:Fair use is very simple

[timmarhy]

oh and sampling for parody or amature non profit use should be allowed as well.

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: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?

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!

[garcia]

In addition, now that I've read the article again just because so many parts of it made sense and so many others just pissed me off more:

Books begat films, character merchandising, giant fan guides, remix videos, fan art and other
forms of secondary authorship that simply didn't exist 100 years ago.

100 years ago we didn't have Disney fucking with Copyright then (the Mickey Mouse and Sonny Bono Protection Acts only came about in 1976!) So for us to even bring that shit up in this modern discussion is nothing short of ridiculous.

Let's face the facts here... Copyright has been extended to an unreasonable point so that nothing will ever enter the Public Domain so if anything is different in the "Digital Age" it's the fact that we're more fucked than ever before.

Boo.

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

[curunir]

One thing I found interesting about the article is that the entertainment lawyer makes one good point while trying to make a point that is almost the opposite.

From the article:

But, as a technical legal matter, fair use is not a "right," a misconception and misstatement frequently made these days.

While his point is that fair use is more of a privilege than a right, I think there's a much different interpretation of what he's saying that is important to consider.

He's absolutely correct that fair use isn't a right, it's an exception. But it's an exception to the rights of the copyright holder. And this distinction is important because it underscores how entertainment companies misrepresent copyright. Rather than copyright defining the few excepted uses allowed to people/entities who don't hold the copyright, it actually defines the few rights granted exclusively to the copyright holder.

And this is an important observation about the intent of copyright. Namely, that anything not explicitly granted to the copyright holder is permissible rather than forbidden. The big content producers would like copyright to be a limited set of things that we (those not producing the content) are allowed to do with their content, which they believe they own. But when defending our rights, it's important to remember that copyright is actually a limited set of things that we're not allowed to do and that content cannot be owned, only protected. And this is the principle that should be applied whenever something falls outside of what is explicitly stated in the Copyright Act...that everything not covered is allowed rather than forbidden.

Not just the RIAA

[EmbeddedJanitor]

The (ab)user side are also muddying the water. Consider the mashup DJs that release their own "creative works" on CD (which they then expect to have covered by copyright) or the hobbiest mashup artist that releases stuff on youtube etc. Is this fair use of the original material?

I agree though that the digital age really makes no difference. The real change has been a shift is society's values. Me, me, me!

"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."

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

[langelgjm]

Sorry to reply again, but this might be of interest:

5. Is Fair Use a Right or Merely a Defense? Lawyers disagree about the conceptual nature of fair use. Some lawyers claim that fair use is merely a defense to a claim of copyright infringement. Although fair use is often raised as a defense, many lawyers argue that fair use can also be viewed as having a broader scope than this. If fair use is viewed as a limitation on the exclusive rights of copyright holders, fair use can be seen as a scope of positive freedom available to users of copyrighted material. On this view, fair use is the space which the U.S. copyright system recognizes between the rights granted to copyright holders and the rights reserved to the public, where uses of works may or may not be subject to copyright protection. Copyright law gives the decision about whether copyright law applies to a particular use in this space to a Federal Court judge, to decide after weighing up all relevant factors and the underlying policies of copyright law.

What about things INTENDED to be part of something

[WaltBusterkeys]

What about music that's written with the intent that it be used as a backdrop to something else, like a film score? The intended use of that music is to be incorporated into something else that adds a layer of creativity. If you say "any use that adds something to the work is fair use" then film scores effectively lose ALL protection. The original film, for which they are written, wouldn't have to pay royalties because it would be adding something and making "fair use" of it.

Same for stock photography and stock video providers -- their GOAL is to provide raw material as input into a larger work. They spend a lot of time and money shooting and editing stock. If you claim any use of their work is fair use (it's always incorporated into a larger whole, and often transformed along the way) then stock photographers and videographers can't get paid (all use is fair use--why pay for it) and might just stop producing stock material. It's a huge benefit to illustrators and designers to have stock photography and video available. (As an aside, some stock photographers create really good work)

How does he address the fact that some people design work with the hopes of being paid by producers who will assemble it into a larger whole, and that producers are glad to have designer's work available?

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.