From Aspen, Colorado, I embark upon the following tirade:

I continue to be bemused by the passion of techies of different stripes, free-market and otherwise, for fair use. I have nothing against the concept; it is useful in its context, but to expect it to continue to do much work going forward protecting free expression seems to assign it a task that it is ill-suited for.

Fair use is certainly a concept compatible with markets. Given the difficulty of working out some deals due to high transaction costs and the low amount of value at stake, copyright law needed an exemption. If one wanted to quote an author briefly in another work, for example, and one was told one needed to negotiate a license to do so, one would be more likely to give up the effort than pursue a license. Thus, fair use.

But once it becomes possible to negotiate a license cheaply and almost instantaneously, one doesn't necessarily need the concept to protect the use. Neither need the use be free in order to protect the use. If the market allows one to choose between buying a copy that allows cut and paste $.05, or a copy that does not for $.01, there seems no danger that anyone who wants to make trivial excerpts will be prevented from doing so. This seems pretty commonsensical; it has been recognized in case law.

The idea that the scope of fair use might change over time, however, is often met, even in free-market circles, with exclamations of outrage and horror. But the argument is far less harsh and extreme than its critic's reaction warrants. I think it is being fundamentally misunderstood.

a) The argument that fair use could or should narrow over time is *not* to say that copyright law ought not to have outer limits or exemptions. It seems to often be forgotten by advocates of a fixed definition of fair use that there are other much more important limits to copyright law. For example, there is the principle that ideas and facts cannot be copyrighted. Far more free expression is protected by this outer limit of copyright than by fair use. Then there is transformative use. Far more creative downstream uses of works are protected by the transformative use doctrine than by the fair use doctrine. Yet fair use seems to be spoken of as if it is the only or the main limit on copyright, and if it changes, liability for infringement would extend everywhere. That is far from the case. Perhaps fair use advocates are using the term more broadly than the law? They seem to be unaware of this.

b) The argument that fair use could or should narrow over time is *not* to say that it will disappear altogether. Even if the transaction costs of negotiating deals for the use of little quotes, snippets, and bits dropped very low, conflicts of interest might preclude the growth of markets in some types of uses, such as uses for parody and for criticism. Creators might systematically refuse to license for these purposes. Thus in these niches, there would likely to be a continued need for fair use. Not all fair uses are alike.

c) Fair use law is pretty complicated. All in law, consumers are better protected by the operation of demand, which gives them as much complexity or simplicity as the economics of the situation support, than by the top-down one-size fits all of a legal concept.

Again, this is copyright law we are talking about. Advanced civilization stuff. There are some problems that it is nice to have, so why all the moral outrage and indignation? Sheesh.