I started reading the new Brennan Center Report on Will Fair Use Survive?. I will try, but I suspect it will soon join the huge pile of half-read works on my credenza.

My problems start with the first para of the Executive Summary, which reads, with emphasis added:

"Fair use" is a crucial part of our copyright system. It allows any of us to quote and reproduce parts -- or sometimes all -- of copyrighted works, if the use advances creativity and democratic discussion. There are similar free expression safeguards in trademark law. Together, they assure that the owners of "intellectual property" cannot close down the free exchange of ideas.

In fact, IP law does not protect ideas, only particular expressions of them. There is no way that IP protection can shut down the free exchange of ideas or democratic discussion. In addition, many uses of IP advance creativity or democratic discussion without being "fair uses" under the law; the overlap between these categories is fitful at best.

It is improbable that any paper that starts with such resounding fuzziness is going to hold my attention long.

Getting a little further along, there is a great concern for protecting parody of all sorts, much of it pornographic. I personally have a soft spot for parody and an indifferent attitude toward pornography, but I have a hard time seeing how the fate of western civ rests on the right to make pornographic versions of Mickey and Minnie Mouse. Indeed, the prevalence of the pornographic in the parody genre cuts in favor of greater IP rights than I would otherwise endorse because porn can do serious damage to a franchise, and to consumer welfare. Recalling my parent-of-young-children avatar, Disney would be derelict in its duty to its customers if it failed to protect its characters against such distortions.

Moving on, it looks as if the work contains most of the standard groves-of-academe weaknesses, such as:

Equating "fair" use with "free" use, especially when education is involved (the governing principle is that students should get if for free, a rule that is somehow not applied to their professors' salaries);

Failing to come to grips with free rider and prisoner's dilemma issues;

Refusing to focus on possible market solutions. (For example, in a society that sells ring tones for $3 and up, it would surely be possible to establish a market in film clips for use by professors of the cinema; their plight is regularly used to support the proposition that the whole temple of IP must be brought crashing down.)

I will keep reading, but the eyelids grow heavy.

posted by James DeLong @ 2:36 PM | Access: Commons, Fair Use, Orphan Works, Public Domain

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