The Fight for Fair Use

QuestionCopyright.org doesn't normally focus on economic issues, concentrating instead on the suppressive effects of today's copyright regime on art and creativity. But sometimes a story is just too good to pass up... or in this case, the juxtaposition of two stories.

The first comes from Patrick Ross, executive director of the Copyright Alliance (a strongly pro-copyright group whose backers include the MPAA, NBC, News Corp, Disney, Time Warner, the Business Software Alliance, and Microsoft).

Ross wrote an editorial for news.com entitled "Fair use is not a consumer right". His editorial was a response to Computer and Communications Industry Association (CCIA)'s recent complaint filed with the U.S. Federal Trade Commission (FTC), alleging that the copyright warnings shown before most movies and broadcasts are intimidating and inaccurate. Which they are, of course. In the words of the CCIA:

"These warnings intimidate average people and hinder free expression...They depict as illegal many legitimate and beneficial uses made possible by the high-tech industry, and cast a pall over the high-tech marketplace...These ubiquitous statements often include gross misrepresentations of federal law and characterize as unlawful acts that are explicitly permitted by law."

Patrick Ross, not surprisingly, takes the position that the FTC shouldn't "regulate free speech" — that is, that the FTC should not impose any limits on how misleading these notices can be. (One wonders if Ross objects to other laws or regulations that prevent false advertising and misleading statements, or if he only objects to them when they affect copyright holders.) Ross writes:

I don't think we want copyright warnings to become a fair use public service announcement. No, these warnings do exactly what they're meant to do — notify consumers in a succinct fashion that infringement has legal consequences.

This is odd, considering that a paragraph earlier he wrote:

So, how exactly would the FTC rewrite these copyright notices to reflect a consumer's ability to attempt a fair use defense? Should they paste in all of the above language? We're wading into the area of providing legal advice, and these examples aren't sufficiently detailed for that. We could have an IP lawyer fold in a treatise on fair use, and baseball announcers could start reading it at the seventh-inning stretch to make sure they finish it before the end of the game.

Apparently, notifying consumers that infringement has legal consequences is not "wading into the area of providing legal advice", but notifying them accurately of what might actually constitute infringment would be. We wouldn't want to wade too far in, now, would we?

Meanwhile, the other story is the CCIA's recent study, whose title is self-explanatory: Fair Use Economy Represents One-Sixth of U.S. GDP.

I haven't closely examined the CCIA's methodology, though they do claim the study was done in accordance with World Intellectual Property Organization methodological standards. Since any study on the uses of works of the mind is bound to be fraught with definitional questions, and since many other copyright-related studies start from bogus assumptions and/or questionable data, fairness (as well as intellectual honesty) demands that this this study be treated with the same suspicion. Nevertheless, the CCIA deserves praise for focusing attention on a useful point: that the creative re-use of existing works is an important activity, economically as well as artistically.

I only wish the CCIA hadn't concluded their press release with the usual appeal to the sacred cow of balance: "The dependence of industries outside the high-tech field illustrates the crucial need for balanced copyright law.". Of course, we all favor "balance", but the question is, what is being balanced against what? For Patrick Ross and the Copyright Alliance, too often it's that "the rights of creators" need to be balanced against (presumably) the right of the public to certain limited uses. But that's not the kind of balance we should be looking for, as a society. The purpose of copyright is to benefit the public, period. If there is any balancing to be done, it is only as a means, not an end.

4 Comments

Unfortunate Study

As unfortunate as it is, that was a poor study. For example, because "fair use materials" are obtained from digital sources, the size of the whole telecommunications industry (wire, wireless, satellite, etc...) is included in the figure.

As a pro-fair use person, I find this study unfortunate. Actually, not just unfortunate, but stupid. Biased statistics is expected in many sponsored studies, and sane, moderate people know to read into both positions and thereby know how to head to the middle.

This one's so far out there, it harms the dialog.

Re: Unfortunate Study

Ah, that's too bad. Thanks for writing up your impression (which passes the sniff test, I have to admit).

I don't think the "head to the middle" instinct is a reliable route to truth, even in other cases, however. The size and effect of bias can be essentially random, and to judge an outcome by what "feels" right or moderate defeats the very point of studies, which is that they might reveal something unexpected. Otherwise why conduct them, after all, except for propaganda purposes? The saying that "the truth lies somewhere in the middle" is an appeal to moderation and to the human instinct to get along with the majority, not an appeal to a desire to find the truth.

This isn't just an abstract point, by the way. For example, most people who consider themselves sane and moderate don't realize how much the record industry (or software industry, for that matter) inflates their piracy losses. Sure, people expect that some inflation is going on, but they rarely realize that it can involve whole orders of magnitude, because to do so would require questioning the justification behind the laws that guard that particular business model.

That this fair-use study's conclusions may be bogus is not, sadly, a surprise. But the study has the effect of raising the issue of fair use activities as an economic force, and that's a very good thing. If the debate becomes about the magnitude of that activity, then the argument is already moving onto our home territory.

Fear always facilitates

It's nice to see an atricle that approaches copyright warnings in this way. Warnings that compare copyright infringement with car theft and acts of violent crime are becomming more the norm. With this approach how can anyone be sure of fair use.

It seems to me that it will

It seems to me that it will only get worse as the definitions become more geared towards big business making more money. Surely this will just drive more of a divide between the groups?