Nick Car on Fair Use Study

by on September 24, 2007 · 6 comments

Nick Carr’s comments on CCIA’s study of fair use include the following critique:

What the authors have done is to define the “fair-use economy” so broadly that it encompasses any business with even the most tangential relationship to the free use of copyrighted materials. Here’s an example of the tortured logic by which they force-fit vast, multifaceted industries into the “fair use” category: Because “recent advances in processing speed and software functionality are being used to take advantage of the richer multi-media experience now available from the web,” then the entire “computer and peripheral equipment manufacturing industry” qualifies as a “fair-use industry.” As does the entire “audio & video equipment manufacturing” business. And the entire software publishing industry. And the entire telecommunications industry.

Oh dear. I think one could fairly count the Tivo, and a portion of some of the activity described above… anything involving parody, certainly.

Of course, there is a larger conceptual problem. Fair use is always fair use *of* something copyrighted… so do we add fair uses on to the value of copyright uses? There is a case to be made that the copyrighted materials–and the consequent fair use of them–would not exist in such abundance but for copyright. The logical response to that is, yes, but we wish to measure in particular the value of this particular *exception.* Fair enough, so long as one bears in mind the risk of the exception’s swallowing the rule. Also, that a substantial part of the economic activity in question might well occur in similar form even without the exception, due to the growth of markets in snippets and bits and other licensed material for downstream use.

Empirical studes are funny things, aren’t they?


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