My DRM piece was noted in a piece on fair use and DRM. I am among other things critiqued for referring to information as a “product” and the end user as a “consumer.” For Pete’s sake! The article adds some more substantive claims about fair use, which I’m happy to respond to. But before I get there, enough of the deconstruction already!
Quite a lot of energy is being expended in various circles thinking about what language is used to frame various debates in copyright. It’s not that the issue isn’t worth thinking about at all–language can be used in tricky ways and carelessly, so that the underlying concepts are obfuscated. But for the most part, if the concepts are the problem, fiddling with the language won’t fix it. Some people use the concepts of efficiency and marginal cost pricinghttp://weblog.ipcentral.info/archives/2006/08/the_marginal_co.html in ways
never intended by economists (more here)–but using different words to mean the same thing isn’t going to help their argument.
Further examples–there’s the question of whether the term “intellectual property” is proper, and when it was coined. Of whether one ought to refer to illegal copying as “theft” or “piracy.” Clearly there are substantive issues involving the similarities and differences between physical property, patents, and copyright; furthermore, there are important historical questions about the constitutional status of copyright and patents. But one doesn’t get anywhere in resolving those issues by choosing, or not choosing, certain terms. If instead we carefully say, “the set of valuable assets consisting of rights described by patent or copyright law,” we get a heck of a mouthful–and possibly lose our audience for a second while he thinks “oh, she means IP,” but we aren’t any closer to resolving the substantive issue.
There are valid two reasons I can think of for fussing about the language. One is if the person using the language in question is using it to whip up prejudice. But, well, it has been some decades since the invocation of terms like “property,” “piracy,” or “theft,” had the emotional impact they had in Jane Austen’s time, except perhaps in some limited conservative circles. So that particular concern seems… archaic.
A second reason is if the language is being used in a way that is conclusory or circular or to beg the underlying substantive question. Happens, certainly. But not every debate needs to start from square one–using shorthand to bring in other concepts without elucidating them fully has to be allowed, or every conversation would last 48 hours. If one is talking about the impact of P2P downloading on sales, for example, and uses the term “piracy,” well, surely everyone knows what that means, and initiating a digression that addresses the conceptual similarities and differences between downloading and pillage on the high seas is and the policy significance of this, well, beside the point. So long as the latter conceptual/policy debate about the differences between physical and intellectual property is taking place somewhere, which it is.
Which brings me at last to the substantive argument raised in the “critique” of my paper–that is, that DRM can interfere with fair use in ways that might not go away in negotiations between seller and buyer, such as parody or the use of clips in a critique. This is the hard core of fair use, what one might well left when one a market in which one can choose to buy the right to make a backup copy or not, or buy clips to use in a term paper or what have you; all this follows from a transaction costs theory of fair use. The interests of copyright holder and documentarian might be sufficiently opposed that they would not reach agreement; on the other hand, the documentarian might be very well served by a sufficiently robust market for clips.
The problem of the parody/critique is a (narrow) subtopic of DRM discussions getting into detail well beyond the scope of my paper, which was a) short and b) general. More importantly, the problem isn’t really a DRM/DMCA problem as such–one would have the same problem with EULA’s, even in the absence of DRM. Suppose, for example, hypothetically, that Fox News was DRM’d, so you couldn’t easily stitch clips into a critique. Well, you can still patch them together by filming the screen and recording the audio–vive l’analog hole. Or recreate them with actors or claymation. Or… you get the idea. Your real problem would come not from the obstacle posed by the DRM but by any restrictions in a EULA–hypothetically, a clause flatly prohibiting parody or critique. The question is, will fair use law prevail here, or freedom of contract?
This is a fine issue to discuss at length, but however way it is resolved has no bearing on the general soundess of the argument in my paper. And resolving the issue won’t turn on whether information has “producers” or “consumers” or whatever the heck one thinks one ought to calls those things.
More of our writings on fair use, parody, and so on here and here and here and here, with more here and a bit of perspective here) and here.
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