Consistency Problems?

Larry Lessig calls out those of us who support fair use (FU) but criticize network neutrality regulations (NN):

There is a consistency problem for those who embrace FU while arguing against “government regulation to support NN.” For FU and NN are both “government regulations”–each government defined limits on government granted property rights. In both cases, a government official (a court, or the FCC) is telling a property owner “this use of your property is opposed by the state.” And while there are important differences in the way FU and NN get administered, if anything, FU is more vague, more complex, more expensive, and more uncertain than the regulations being called for under NN.

Fair use is an affirmative defense against claims of copyright infringement. As such, it is only asserted in cases where an alleged infringer has already been dragged into court. There aren’t fair use bureaucrats roaming the country looking for publishers violating their customers’ fair use rights. Fair use simply carves out a sphere of autonomy around individuals and their personal lives. When fair use atrophies, the result is excessive legal meddling in the lives of ordinary people.

Where did I learn that? From Mr. Lessig. One of my favorite stories about copyright law run amok, which I originally encountered in Free Culture, is the story of Jon Else, a documentary filmmaker who happened to have 4 seconds of The Simpsons playing on a TV in the background of one of his shots. Fox threatened to sue him if he didn’t pay $10,000 for permission to include the clip. In response, Else digitally edited the clip out of the shot.

That’s clearly nuts. And it is, I think, a sign of excessive government regulation of the use of copyrighted works. True, Else would probably have won in court, but doing so would have cost thousands of dollars in legal fees, as well as likely holding up the release of his movie. A stronger fair use doctrine would have given Else the confidence that such a lawsuit would have been immediately thrown out of court.

The problem is that copyright law meddles too much in trivial cases like Mr. Else’s. A stronger fair use doctrine would have a deregulatory effect, reducing copyright’s scope and leaving a bit more of life outside the reach of lawyers and bureaucrats.

Those of us who support fair use and oppose neutrality regulation are being perfectly consistent: our primary concern is excessive state power over private activities. The courts telling Mr. Else he can’t have 4 seconds of The Simpsons playing in the background of his documentary would be unnecessary government meddling. In my opinion, so would the courts telling AT&T how to configure their routers. I don’t see a “consistency problem” here.

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