My oh-so-clever use of question marks in that headline is meant to convey that I find the very “battle” to be both absurd and non-existent, not unlike the so-called “copyright vs. innovation” battle. In both cases the subjects go hand in hand, in fact are symbiotic. But rarely are they portrayed that way.

This particular rant stems from a speaking offer extended to me yesterday that for numerous reasons I had to decline. I would have liked to have joined the panel, however. It was, essentially, a copyright vs. fair use panel. It would have given me an opportunity to explain that fair use exists because of copyright, and that copyright owners regularly practice fair use. In fact, I don’t believe I’ve ever met a copyright owner who opposes fair use.

So what would be better questions for such a panel? I see two. One, how broadly should fair use be defined? And two, should fair use be expanded as a result of digital technologies?

As to the first question, it should come as no surprise that I think fair use should be defined somewhat narrowly, with the existing statutory advantages given to commentary, parody, education, etc. The four factors of fair use are helpful guides (see the video on our web site on fair use for more on these).

The significant advantage of that breadth of fair use is that it allows copyright owners to meet the multiple demands of consumers for multiple uses at multiple price points. When fair use becomes broader, when someone can buy one use but begin to practice other uses without compensation, business model offerings contract and price differentials deteriorate, until you have a one-size-fits-all approach that fits each and every consumer about as well as those one-size-fits-all T-shirts. That is, not well at all. That is a danger if the court finds in favor of the tortured definition of fair use in the RealDVD case.

As to the second question, the extent to which fair use should be expanded in the digital age, it should also not surprise readers that I would argue “not at all.” As I recently said at Ball State University (its football team remains undefeated and is climbing in the polls, and I continue to insist it is because of my visit to the campus), merely because a creative work is converted from a tangible form (say a book) to an intangible form (say ones and zeroes which when combined form an e-book), that is no reason to dilute the rights of the author.

And that is the key here. Fair use is in fact a check on the creator’s rights, the “exclusive right” found in the US Constitution. By definition, when fair use is legally expanded, a creator’s legal rights are reduced. We may find it easier to perform certain duplications or other reserved rights with a digital good, but the creative energy and motivation from copyright that went into that creation is the same regardless of the final physical form.

After all, if new technology allowing easier duplication means that creators should have fewer rights, then European society should never have begun developing copyright laws after Gutenberg’s invention of the printing press. But not even Lawrence Lessig would argue that these governments were wrong to offer legal protection to authors after that disruptive technology arrived.

This entry was posted on Friday, October 24th, 2008 at 8:55 am by Patrick Ross and is filed under copyright law, copyright opponents, creators, fair use, internet, market forces. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.