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Fudging Fair Use So you’ve

June 20th, 2002 · No Comments

Fudging Fair Use

So you’ve probably run across someone at some point who has the sort of fuzzy understanding of the Bill of Rights that leads ’em to complain that “their First Amendment rights have been violated” whenever the moderator of an online forum won’t let them post something, or the NY Times won’t run their manifesto, etc. etc. What these folks are missing, of course, is that the First Amendment is just a constraint on government censorship — it doesn’t mean anyone else has an obligation to give them a soapbox.

Anyone who understands law even minimally gets that point. So why do we have people like the eminently intelligent Lawrence Lessig complaining that Digital Rights Management threatens the traditional rights of “fair use” allowed under copyright? After all, fair use is just the principle that the law will not prevent you from making certain use of content — making a tape for your car from a CD you’ve bought, for example. It’s a way of drawing the boundaries fo a legally granted monopoly, and a fine one. But why does that translate into an obligation on the part of content producers to put out a product capable of being copied in certain ways? A concert, for example, is one way of delivering content. And most bands won’t let you bring a tape recorder into the show. That’s just one example of the way the structure of a product can make it less easy to use in more ways. But why is that a problem?

Folks like Lessig say this upsets the traditional legal balance of rights. But that’s not quite right, at least, not if we get rid of silly laws like the DMCA which allow people to be sued for the “crime” of cracking open software on their own hard drives. Without DMCA, the balance of rights stays the same; the balance of abilities changes. Is that an awful thing? Well, maybe: I might want some lattitude to make other uses of content I buy. Indeed, it may not even be worth it to buy a CD if I don’t get to, say, rip a copy for my MP3 player. But if that’s so, then companies have every reason to allow as much copying as consumers demand, or to differentiate levels of copying rights through micropayments. Maybe that would be annoying, but in principle it would also allow better fit between the price of, say, music, and the value to the listener. In other words, if you’re the marginal buyer who’s just going to listen to the album relatively few times, you’re paying less than the one who makes more extensive use of it. In a sense, we could say that the marginal buyer was previously subsidizing the consumption of the hardcore fan, while those on the other side of the margin were deterred from consumption. That is, of course, a deviation from the traditional balance. But so was Brown v. Board — do we care?

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