On fair use, you’ve got a pretty good sense of my thinking. I find “fair use” as nebulous as “net neutrality”: it sounds great, but what is it, where did it come from, and what will it look like in the future? Let’s take my TiVo box; I was one of the very first purchasers, have a lifetime subscription (which makes me a free rider on their service, but a legal one). I love time-shifting. I can space-shift, too, by dumping it onto a VHS tape. (I have an old box, I don’t have TiVo to Go.) I’m glad I can do these things, and I’m glad I don’t have to pay. But do I have a “right” to time-shift?

I think if you look at just about everything that is called a “fair use” by advocates, what you have is a service or technology that empowered consumers to do something before the content creators could figure out how to monetize that use. I truly believe (and both copyright law and common law supports me on this) that when a creator creates, he or she is given full rights to that work. In an ideal world, that creator can rent, sell, loan or give away those rights as needed. Now in the real world, sometimes the transaction costs of truly monetizing all of those rights is too high, due to technology restrictions or consumer backlash. The latter is the market at work, of course.

Philosophically, I don’t object to the idea that I should have to pay for the privilege of space-shifting on my TiVo. But let’s look at that service; it’s aggregating copy sent to me by broadcasters and cable operators, but for the most part the actual content being aggregated isn’t owned by those distributors; the owners are farther back in the chain, and often there are multiple owners. What would the market look like that would have my TiVo box determine rights clearances for each TV show and how much I should pay for time-shifting? It would be pretty messy. I don’t think it will come any time soon. But technology continues to evolve. Someday perhaps it will be possible to have a micropayments system with DRM and other means that makes the process seamless to the consumer. I am reluctant, as a believer in the rights of copyright creators, to forfeit time-shifting as a right simply because the technological means don’t currently exist to properly monetize it. I also believe that a future court, in a future with more copyright-friendly technology, might very well revisit Betamax, and rule it was a decision that reflected its time but no longer does so. (I’m reluctant to make this last point, however, because the decision is such a Holy Grail to many that when you even raise the faintest question about it people tend to become irrational; not suggesting you would.)

Anyhow, at the end of the day for me it is about preserving the rights of creators. I believe if that happens everything else falls into place. But in the meantime, I recognize that technology frequently will get ahead of rights models, and we need to find rational ways to deal with that.

Best,