Fair Use by Permission is an Oxymoron

The Institute for Policy Innovation has an essay by Lee Hollaar on their website criticizing the fair use critique of the DMCA. The premise of the essay seems to be that DMCA critics haven’t been appropriately specific about which fair uses the DMCA restricts, and that in fact many of the things that DMCA critics call fair use are not, in fact, fair use under the law.

There are two problems with this line of argument. In the first place, Hollaar uses an absurdly narrow definition of fair use in order to argue that DRM systems don’t restrict it. For example:

Very few digital rights management systems prevent transformative fair use of a work, such as including quotes from a work in a criticism, comment, or news report.

It’s obviously true that DRM systems do not prevent you from watching a video and then typing up a transcript of what it says. In fact, it’s so obvious that I wonder if Hollaar’s being a bit obtuse. What DMCA critics are concerned about here is the ability to include video excerpts in their creative works. And DRM schemes clearly do prevent you from doing that.

Hollaar’s response seems to be that fair use doesn’t give you a right to do things the most convenient way. But this isn’t just a matter of convenience. In many cases, seeing a video of a speech gives you a much clearer idea of what was said than merely reading the transcript. Moreover, there are plenty of transformative uses that have nothing to do with the textual content of a work.

To understand this point, we have to look no further than Hallaar’s example of “Brokeback to the Future,” which he concedes is a “clearly transformative use of a minimal part of a movie.” Hallaar suggests that maybe Hollywood will set up an excerpt-rights-clearing organization that will allow you to pay a reasonable fee for the privilege of using Brokeback Mountain and Back to the Future clips in your parody. But in proposing that as a solution, he’s implicitly conceding DMCA critics’ point: that the DMCA effectively eviscerates fair use. Because if “Brokeback to the Future” is fair use, then we shouldn’t have to pay anything, or even ask permission, to create it. It’s not fair use if we can only do it with the copyright holder’s permission.

But the larger problem with the essay is that Hollaar’s basic premise is backwards. The reason that fair use is codified as four principles rather than a list of specific activities is precisely that it’s supposed to be open-ended. Fair use is a recognition that any system of government-granted monopolies will become too invasive if we don’t have a presumption against copyright law governing inherently personal, non-commercial activities. Fair use is about carving out a zone of autonomy around the individual that’s not governed by copyright law.

That’s why it doesn’t make any sense to demand that DMCA critics identify “the types of use that will be affected and justifying why that use is fair.” You can’t make a list of all the types of fair use any more than you can make a list of all the types of free speech or all the types of privacy. We can offer examples of fair uses that are impacted by the DMCA, such as using video excerpts in news commentaries or classroom instruction, but any such list will necessarily be incomplete, because the number of ways you can use a creative works is limited only by the human imagination.

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