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?

SS

  • DK

    Research, particularly reverse engineering is always glossed over in fair use discussions and serves as a balance preventing copyright extension to unprotectable elements – “idea, procedure, process, system, method of operation, concept, principle, or discovery”. The effect of defeating this aspect of fair use by political or Orwellian attack is to extend protection under copyright that is greater than that of patents and seriously undermine industry, limiting interoperability and the general advancement of the arts.

    Note the lack of commentary in House Report 94-1476 under §107 supporting research, and of the DMCA §1201(f) – Reverse engineering., in House Report 105-796. The balance implied by limits on copyrights is left to the scholar or judiciary without congressional acknowledgment. Should we be surprised if in the future this balance shifts?

  • DK

    Research, particularly reverse engineering is always glossed over in fair use discussions and serves as a balance preventing copyright extension to unprotectable elements – “idea, procedure, process, system, method of operation, concept, principle, or discovery”. The effect of defeating this aspect of fair use by political or Orwellian attack is to extend protection under copyright that is greater than that of patents and seriously undermine industry, limiting interoperability and the general advancement of the arts.

    Note the lack of commentary in House Report 94-1476 under §107 supporting research, and of the DMCA §1201(f) – Reverse engineering., in House Report 105-796. The balance implied by limits on copyrights is left to the scholar or judiciary without congressional acknowledgment. Should we be surprised if in the future this balance shifts?

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    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.*

    No, copyright is the exception to the general rule of freedom of speech. Fair use is necessary to prevent copyright from unduly trespassing of the First Amendment.

    So you have actually inverted the legal reality–trying to move the default condition away from freedom.

    This is problematic from a human rights standpoint, as well as interfering with the instrumental role that freedom plays in economic development and activity, one example of which was pointed out in the above post. But, it must be remembered, that is just one example of many many possible uses of freedom. Because of the unexpected and novel uses of freedom, leading to unexpected economic developments, we should value freedom for the role it plays in the economy. But it is much more than that, and has an intrinsic value, too.

  • http://enigmafoundry.wordpress.com eee_eff

    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.*

    No, copyright is the exception to the general rule of freedom of speech. Fair use is necessary to prevent copyright from unduly trespassing of the First Amendment.

    So you have actually inverted the legal reality–trying to move the default condition away from freedom.

    This is problematic from a human rights standpoint, as well as interfering with the instrumental role that freedom plays in economic development and activity, one example of which was pointed out in the above post. But, it must be remembered, that is just one example of many many possible uses of freedom. Because of the unexpected and novel uses of freedom, leading to unexpected economic developments, we should value freedom for the role it plays in the economy. But it is much more than that, and has an intrinsic value, too.

  • http://linuxworld.com/community/ Don Marti

    You could apply the same reasoning to any government regulation, not just copyright.

    1. Ban curse words on web sites.

    2. Add up the entire Internet and IT industries.

    3. Brag on the economic impact of the no-putting-curse-words-online industry.

    After all, there is a case to be made that the web sites would not exist in such abundance but for the curse word ban.

    Washington, DC is full of rent seekers claiming the economic benefits of government programs that benefit them. Sugar quotas, ethanol subsidies, and copyright are just three examples.

  • http://linuxworld.com/community/ Don Marti

    You could apply the same reasoning to any government regulation, not just copyright.

    1. Ban curse words on web sites.

    2. Add up the entire Internet and IT industries.

    3. Brag on the economic impact of the no-putting-curse-words-online industry.

    After all, there is a case to be made that the web sites would not exist in such abundance but for the curse word ban.

    Washington, DC is full of rent seekers claiming the economic benefits of government programs that benefit them. Sugar quotas, ethanol subsidies, and copyright are just three examples.

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