Fair Use and Digital Rights Management: Preliminary Thoughts on the (Irreconcilable?) Tension between Them
eff.org
by: Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
quotes:
Given the broad scope of the Copyright Act, copyright would intrude into everyday life in innumerable ways were it not for the fair use doctrine and other exceptions. The First Amendment, privacy priorities, and common practice would not be able to tolerate a copyright law lacking a fair use "safety valve." Fair use serves a crucial role in limiting the reach of what would otherwise be an intolerably expansive grant of rights to copyright owners.
As new technologies develop, courts generally have the first opportunity to apply copyright law to them, with Congress lagging behind. This spares the public, technologists, and copyright owners from having to apply to Congress for a legislative solution for each new technology that is developed. In this way, the fair use doctrine plays an important role in preserving a space for innovation and consumer experimentation, while leaving the final word to Congress.
Under this regime, the normal evolution of fair use proceeds thus: a technologist or other creative person makes some use of another's work that she believes to be fair. If the rights-holder agrees, the use continues. If the rights-holder disagrees, she can call upon the courts intervene and rule on the use. If, however, the use is frustrated from the outset by a DRM measure (the circumvention of which is unlawful under the DMCA), there is no opportunity for this process to unfold.
If fair use is to continue to evolve, to create space for free expression, innovation and new uses of copyrighted works, DRM technologies must somehow accommodate the ambiguity of fair use. Unless the public has the opportunity to experiment with new technologies, courts will not have the opportunity to test them against the fair use doctrine. If innovators and consumers are presumptively barred from experimenting without copyright owner authorization, fair use will become increasingly irrelevant.
The fair use doctrine ... operates to limit copyright in order to preserve competition. The fair use doctrine also plays an important role by providing a reservoir of incentives to spur innovation.
two important consequences that flow from innovation in a competitive marketplace: First, copyrighted works and the new technologies that interact with them are complementary products. For example, while the VCR may have encouraged some piracy in the short run, in the long run it vastly increased the value of "back catalog" films by creating a new market for them. So, if copyright owners are entitled to demand the portion of the VCR's value that is rooted in its ability to copy movies, then VCR manufacturers should be entitled to that portion of the value of Warner Bros. film vault that is rooted in video sales and rentals. Second, it is worth remembering that, generally speaking, the "fair use portion" of a VCR's value does not end up in the pockets of the VCR maker. For example, JVC will not be able to increase the price of its VCR to capture the value that the recording function offers to consumers, because Sony (or any other VCR maker) would then be able to reduce the price of competing VCRs. To put it in economic terms, in most mass-market technology markets, price is relentlessly driven to marginal cost. Because the fair use value is not part of the marginal cost of production, technology vendors are unable to capture it in a competitive marketplace. So who pockets the marginal value derived from copyrighted works? The public, in the form of lower technology prices and enhanced capabilities. Since copyright exists for the benefit of the public, this appears to be an appropriate result.
Copyright law represents a bargain between the public and copyright owners. The public grants certain limited exclusive rights to copyright owners in order to create an incentive for the production, and a marketplace for the distribution, of creative works.
An erosion of fair use in favor of DRM comes with the following potential costs:
-a reduction in freedom of expression, to the extent DRM interferes with review, commentary, scholarship, and parody;
-a reduction in innovation, to the extent that DRM eliminates the reservoir of incentives that spur companies to develop technologies that interact with copyrighted works;
-a reduction in innovation, to the extent that DRM depends on legislative mandates (whether in the form of the DMCA, a mandate from the Broadcast Protection Discussion Group or the pending Hollings bill) that interfere with science and technology development;
-an erosion of privacy, to the extent that DRM compromises user anonymity;
-the "freezing" of fair use, to the extent that DRM systems will prevent courts from evolving fair use in response to new technologies;
-undermining archives, libraries, and others who store and preserve our cultural heritage, to the extent DRM systems prevent free archiving of copyrighted content;
-lessened competition, to the extent that DRM systems prevent companies from engaging in legitimate reverse engineering of competitors' products.
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In determining whether a challenged activity qualifies as a fair use, courts employ a multi-factor balancing test, including a consideration of:
-the purpose and character of the use, including whether it is commercial or noncommercial;
-the nature of the work (e.g., factual works are entitled to less protection than purely creative works);
-the amount and substantiality of the portion of the work used;
-the effect of the use upon the potential market for the work. |
