“Information wants to be free,” claim those who decry the overpowering grasp of copyright law. But they cannot mean what they say. Information wants nothing at all. The epigram speaks not to what information wants, but rather to what people want: people want information for free.
So restated, the catch-phrase still rings true. Who would not prefer to get information–that increasingly vital good–at no cost? But, alas, information never comes for free. We can only account for its costs as fully as possible, try our best to minimize them, and allocate them fairly.
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. . . Fair use is not free use. Users have to pay somehow, whether in lost opportunities or cash. Thanks to technological advances—digitalization, computers, and the internet—buying permission to use an expressive work often costs less than using it without permission. Thus has Apple’s iTunes service flourished. As such fared use expands, fair use does and should give way.
Still, fair use will and should remain potent when a copyright holder entirely refuses to license access. Markets then do not simply fail; they fail to even exist. In such a case, fair use might well excuse the unpaid and unauthorized use of a copyrighted work. This holds especially true with regard to critical reviews, parodies, and investigative reporting.
What if copyright holders employ common law tools, such as licenses or automated rights management, to bar even the fair use of a work? In that case, we might well judge that copyright policy fails, on net, to promote the general welfare, the progress of science, or the useful arts. To remedy that wrong, however, we should not attack common law rights. If copyright and common law combine to give copyright holders too much power, we should trim back the former. As a special exception to common law, the Copyright Act remains, at best, no better than a necessary evil.
This chapter argues, in sum:
- The scope of fair use will shrink as fared use grows, though objectionable uses will remain fair uses;
- Copyright holders may use common law to limit fair uses; and
- If in combination copyright and common law restrict too much expression, we should not throw out the latter with the former.
[NB: The above text comes from part of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Specifically, it comes from the introduction to Part I, Chapter 4: Fair Use vs. Fared use. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. I welcome your comments.]