Time Warner Cable Experimenting With Overage Charges For Top Users

Is It Time To Redefine Fair Use?

from the outdated-concepts-that-need-refreshing dept

Thu, Jan 17th 2008 5:22am — Mike Masnick

We've covered the first and second parts of the NY Times "debate" over copyright issues between Rick Cotton and Tim Wu. In both of those, we focused on Cotton's assertions, which were understandable given his role as General Counsel at NBC Universal, even if based on many faulty (and troublesome) assumptions. The third piece in the series discusses the issue of "fair use," and here Wu's response is much more interesting than Cotton's. Cotton basically repeats the industry talking points, trying to reduce fair use to a very small exception to copyrights and suggesting that a more digital world really has no impact on the question of fair use. Wu, however, points out that the growing digital world has drastically stretched the concept of fair use to its limits. Copyright and fair use were designed to make sense in a world of professional publishing. In a world where most content is not actually professionally produced content for the purpose of being sold to a mass audience, but is amateur to amateur in the form of personal communications, then it probably is time to rethink both copyright and the definition of fair use.

The entertainment industry (and, indeed, Cotton does so here) loves to suggest that fair use is simply too complex to be explained -- and, therefore, for mere mortals to understand. What they really mean, is that it's fairly complex to fit antiquated fair use concepts into the current digital world where so much content is amateur created. Wu highlights this by suggesting it's time to rethink fair use and come up with a more up-to-date understanding of how it could be applied. He suggests a standard of: "work that adds to the value of the original, as opposed to substituting for the original, is fair use." This seems like a fairly reasonable standard to use, if you're going to have fair use at all. We've seen way too many attempts by copyright holders to completely shut down things that clearly add value and don't act as substitutes. It would be interesting to see supporters of stronger copyright laws explain why that test shouldn't be a part of fair use.

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Filed Under: fair use

17 Comments

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Crosbie Fitch (profile), 17 Jan 2008 @ 6:00am

All use of published work is fair
All use of published work is fair that does not violate our human rights to liberty, truth, privacy, and life.

What are certainly not fair are the monopolies of copyright and patent that suspend the human right to liberty simply to grant an economic privilege to publishers and manufacturers.

Stop trying to make the slaves' manacles more comfortable by pissing about with 'fair use'.

Abolish copyright and restore everyone's liberty and intellectual property rights.
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IP Daily, 17 Jan 2008 @ 6:05am

Fair
"work that adds to the value of the original, as opposed to substituting for the original, is fair use."

Next thing the cartel will argue is that a critique of their "property" does not add value, it detracts value.
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Cyrus Keck (profile), 17 Jan 2008 @ 6:27am

Is labeling something complex a sufficient argumen
I find it interesting that the argument presented by Cotton's side employs the technique of claiming that fair use is extremely complex. It would seem to me that if something is complicated and requires a case-by-case examination of each instance, that the law itself should require a modification.

His note that fair use remains the same now as it did prior to the information age seems to indicate either a distinct lack of understanding of the current environment, or a willful ignorance of the changes that will inevitably occur in hopes to cling to the current business model, stubbornly resisting change.

Wu's suggestion for an alternative definition to fair use seems very realistic and grounded in the emerging technology. While I am hesitant to let emerging trends dictate changes in laws, there does come a point where the existing policies need to change to allow for continued innovation and change, instead of stifling it.
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TheDock22, 17 Jan 2008 @ 6:59am

Fair Use
work that adds to the value of the original, as opposed to substituting for the original, is fair use.

I don't know if I really like that description, it is too vague and does not solve the problem of cutting down on litigation.

I always thought of fair use as if you make no money off the use of a piece copyrighted material, then it is fair use. If you are using the copyrighted material anywhere in which you make money (even if you make money off of the ads for a website) then that is not fair use.
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James, 17 Jan 2008 @ 7:13am

Re: Fair Use
I always thought of fair use as if you make no money off the use of a piece copyrighted material, then it is fair use. If you are using the copyrighted material anywhere in which you make money (even if you make money off of the ads for a website) then that is not fair use. I'd argue thats not completely true TheDock22. If you're a news website and you're reporting on some sporting event and show a very short clip or the event's logo for reporting purposes, I'd argue thats fair use even if that website also displays ads. Fair use is simply that where the copyrighted work is referenced in the same way you might reference it if telling a story to a friend, its a part of the background the way a tree or a building might be its NOT the story itself.
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moe, 17 Jan 2008 @ 7:30am

Fair use is the rule, not the exception
The current environment surrounding copyright, trademark, and intellectual property seems to treat fair use as the exception, rather than the rule. To me, it would seem that violations of these rights would be the exception, with fair use being the rule. Isn't that what the whole argument behind needing to defend your trademark is based on -- that most uses aren't infringing, but that you need to defend against those uses that do actually infringe on the trademark?

Viewing copyright, trademark, and intellectual property rights in this environment inherently favors those who hold those rights. As has been echoed here on Techdirt numerous time, we've gotten to this point because of lobbying on the part of the big copyright, trademark, and intellectual property holders. They've been lobbying for it for so long that the majority of people debating and deciding the next course of action are approaching it from the point of view, that fair use is the exception.

This is not -- and should not -- be the case: Infringement is the exception, and fair use is the rule.
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atomatom, 17 Jan 2008 @ 7:31am

Re: Fair Use
"I always thought of fair use as if you make no money off the use of a piece copyrighted material..."

Oh good, so that movie I downloaded off Bittorrent is fair use, because I made no money on it. The guy who uploaded it didn't make money on it either, so that was fair use too. You see why this definition fails as well.

I think fair use can be simply defined as "use of a non-significant portion of a copyright work in creating a new, original work". A loop clipped from a song to create a new song, for example.
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TheDock22, 17 Jan 2008 @ 7:55am

Re: Re: Fair Use
I think the journalism industry is always an exception to the rule. Free speech and all.
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TheDock22, 17 Jan 2008 @ 7:59am

Re: Re: Fair Use
Yea, good point. I didn't take into account the thieves out there.

I think fair use can be simply defined as "use of a non-significant portion of a copyright work in creating a new, original work". A loop clipped from a song to create a new song, for example.

That is a good definition for music (maybe video), but what about a logo like the previous example stated (using a sports team's logo to report on a sporting event)? Logo (or any image really) would be a significant portion of the original copyright work.

If the rules are going to be rewritten, maybe they should break it down to define the industry more (rule for images, rule for movies, rule for audio, etc.).
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Dan, 17 Jan 2008 @ 8:30am

Decent list of suggestions...
I found this while browsing boingboing.net. It's a practical list of items that would allow for fair use of copyrighted materials by consumers.

http://www.michaelgeist.ca/content/view/2572/125/

In particular, one of the suggestions would link penalties for DRM circumvention with copyright infringement, so that DRM cannot be used to trump fair use as it is in the DMCA.
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Dan, 17 Jan 2008 @ 8:42am

Re: Decent list of suggestions...
Should have added that the list is a proposal for implementation for fair use in Canada, but it seems to make more sense than the current state of affairs here in the US.
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Preston, 17 Jan 2008 @ 9:19am

There's a Part IV
It may be slightly off topic, but a good part IV would be a discussion of Gawker's recent posting of the Scientology video. In one of their posts, they repost the letter from Scientology's attorney saying they are in both civil and criminal infringement of copyrights.

Gawker responded that it was fair use and posted their attorney's response to Scientology's attorney. This is going to be interesting...
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Anonymous Coward, 17 Jan 2008 @ 11:06am

Fair use becomes adding value to the original work?

How does a cab driver that includes Prince's music in the background add value to anything Prince has ever done?
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Anonymous Coward, 17 Jan 2008 @ 12:47pm

"Abolish copyright and restore everyone's liberty and intellectual property rights."

Throw in patents and trademark too.

I can't wait to come out with my Mike Jordan line of shoes. Why not, why should Mike make money off his past performance? He should play basketball if he wants to make money.
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David Sternlight, 17 Jan 2008 @ 1:17pm

Let's see if I understand this
'Adds value to the original' has been proposed as fair use.

So if I take a Beatles record, add a biography and recording notes, and sell it to many others but don't pay Apple Corps any money, that's fair use?

I think not.
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Rekrul, 18 Jan 2008 @ 12:08am

Common sense definition of "fair use": A use that is non-profit and neither harms the value of the original work nor substitues for the original work.

Content industry's definition of "fair use": Being able to listen to or watch the work, by yourself in the privacy of your own home. Beyond that, "fair use" is just another word for "infringement".

It really is that simple. The content industry truly believes that you don't have a right to do anything with a copyrighted work other than listen to it, or watch it. The current idea of fair use (when it really is fair use) is something they only tolerate because they know that the courts won't rule against it. That's why they've bought laws like the DMCA. Since they can't outlaw fair use outright, they want to make it impossible for anyone to legally get access to the content in a usable form in the first place.

It would be like a state outlawing gasoline sales, but saying that it's still 100% legal to drive...
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Anonymous Coward, 25 Jan 2008 @ 2:25pm

Re:
But there is a difference. Patents and trademarks are good. Patents are already short and are not always granted. Trademarks are only there to prevent fraud. Copyright is there to restrict how people talk about creative works.
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