The Copyright Society of the USA held its mid-winter meeting last week, and I was on a panel on fair use. A slightly edited version of the notes for my presentation are set out below. My fellow panelists had interesting things to say, and I have urged them to send me their notes, too.

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COPYRIGHT SOCIETY OF THE USA
Mid-Winter Meeting -- Feb. 16-18, 2006 -- Park City, Utah

PANEL: FAIR USE BEYOND THE FOUR FACTORS: THE ROLES OF TECHNOLOGICAL EVOLUTION, INDUSTRY PRACTICES, AND CONSUMER EXPECTATIONS

PARTICIPANTS:

James DeLong, Progress & Freedom Foundation
Michelena Halle, Viacom
Alex MacGillivray, Google
Jay Monahan, eBay
Matt Zinn, TiVo

Presentation of James DeLong

It is a cliché to say that the doctrine of fair use is a mess. (See for exaomple, two fine articles by former Second Circuit Judge Pierre Leval, available by searching Lexis.) Indeed it seems that it has always been a mess. Not to be a pessimist, but it probably always will be a mess, because, as I will expand on in a moment, it covers several not necessarily consistent concepts.

The messiness of this doctrine used to be rather amusing. For the most part, the tough cases were at the margin – exactly where does one draw the line? – but the broad areas of what was protected by copyright and what was not were clear. The greys were interesting and challenging, but the blacks and whites were what counted.

Now, the stakes have been raised. Deciding what is and is not fair use is a question not at the margins but at the heart of fundamental issues concerning the definition and protection of intellectual property.

To take two important examples:

1) The determination of fair use is central to the question whether content providers will be allowed to continue their experiments with DRM. H.R. 1201 would, in my view, use a broad definition of the concept of fair use to destroy DRM by legalizing the distribution of all cracking tools. Also, in my opinion, this is exactly what its major supporters – the academicians and the copyleft – want and intend.

2) Fair use is at the heart of the growing tension between content creators and content aggregators. (I am fond of saying that every issue we now confront concerning the Internet was foreshadowed by the issues raised by the railroad in the 19th century, and this one is an example. A railroad without products to ship was worthless. Growing land without a railroad was equally worthless. Together – wealth. But how to divide that pie between the two was not obvious.)

I do not see how to settle these disputes without going back to basics and thinking through fundamental issues of fair use.

The most fundamental of issues is, what purposes are we now trying to serve by the applying the concept of Fair Use?

It is a real grab bag.

Many arguments, especially in the popular press, are not really about fair use at all; they are about the basic copyrightability of ideas and facts. It is astonishing how many reporters think that Shakespeare could have copyrighted the idea of lovers from rival families, or of an ambitious noble who kills a king.

Comparable misunderstandings about facts are also rife.

Turning to real fair use, any list of purposes that get shoehorned into the concept would include:

Political/free speech concerns.
Research and academic interchange
The concept of the creative hive – the open source movement
Uses for which permission might not be forthcoming – reviews, parodies,
Riffs on a theme or an extension of a fictional world (The Wind Done Gone)
Transaction cost problems
Orphan works issue (a special category of transaction cost)
Interoperability – (mostly software, but the concept extends to other areas)
Redistributions of property (e.g.: Special rules for favored types of users; Education uses; Consumers – time and space shifting)
Net social benefit greater from allowing the use than from protecting the IP
Protection of old business models. (libraries and schools)

One can shuffle this deck in different ways, because the categories overlap. And I may have missed some.

There is also much confusion temming from the fact that two entirely different concepts of “free” are involved. Some of these basic ideas of fair use arise from the concern that rights holders will not grant permission. Others are based on the assumption of free beer – that some particular group should it get without charge.

Given my basic orientation in favor of markets and property rights, you can guess my bottom line. We need to recommit to property rights and markets as the basic form of organization for producing and distributing IP. Fair use should be based on serious failures of those mechanisms, not on social engineering.