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Fair Use Factors for Friday

April 30, 2010

In a now-regular “why Copyright needs reforming” feature of this blog, I thought I’d point out a few very simplistic reasons/talking points that you can repeat should you get into a conversation about why we need stronger protections for fair use as a matter of pure public policy, let alone the problems in disentangling the attendant legal conundra.

1. It gives media consumers what we want. Pure and simple. E.g., we don’t have to sit around and wait for George Lucas to license someone to design pinups that stormtroopers might have in their barracks or for Skeelo to design a t-shirt.

This is especially important where a fan base is rabid and creative, meanwhile the original creator is lazy and/or descending into madness/idiocy. This value may be reasonably balanced against the rights of the creators if they’re actually going into a new market(?!); in that case, the audience should stand out of the way and let the creators do their thing. But if they’re just sitting on their haunches with no plans to go forward, and are simply trying to extract revenues and thereby inhibiting the creation of content that could derive from their copyrighted works, they are little more than state-sanctioned censors and bridge-trolls. See also J.D. Salinger-esque recluses who want their one work to be the end of all creation that could possibly relate to their stories or characters.

2. Fair use frees content from having to overly concern itself with the cutthroat-competitive wishes of its corporate owners. For example, maybe you want to be able to play the original Super Mario Bros. as MegaMan, Link, Samus, or a number of other characters, shouldn’t you be able to once Nintendo has shown that it’s not exactly working on 8-bit games anymore? Even though franchises like Super Smash Bros. have shown the possibility of cross-company intellectual property licensing, how often is that going to be the case? In Marvel vs. Capcom 3‘s case, about once a decade, apparently.

3. Relating to the previous point, the mere transaction costs of sitting down to those negotiations and licensing derivative rights are likely to be prohibitive. It’s easy to play a song on the radio or make a pure cover song because those have mandated royalty rates, but actually adding some creativity in the mix makes the whole situation much more messy. It seems obvious to say that we shouldn’t be encouraging mindless repetition and copying over creativity and new works.

4. Fair use enables HUGE industries that rely on some intellectual property leeway to develop. As in, trillions of dollars huge. Think about how well Google, eBay, Amazon, or really any computer company, could perform if copyright holders had a right of action for every copy (including the kind constantly made in your RAM or on your hard drive when viewing the web) of any protected work that was ever created (even though the literal text of the Copyright statute would give rise to such a cause of action). Google couldn’t index anything, eBay couldn’t let you see any visual works before you bought them, and so on. Creating some safe space in the middle is good for both sides of the Copyright equation.

5. Last, but not least, reforming Copyright would minimize the degree to which governments will accommodate fascistic enforcement policies, such as police raids on bloggers’ homes, pervasive monitoring of private internet usage, filtering/blocking your internet access, and so on. Moreover, reforming Copyright would stop the dilution of other much more serious problem that Copyright uses to put these fascistic tools into place and thereby prevent infringement. For example, the Copyright industry loves abusing kiddie porn, slavery, and terrorism because these problems make Americans think that such pervasive monitoring tools are reasonable sacrifices. But when it comes to actually addressing those problems, we think we’ve already got a solution in place. Except it’s a solution for the wrong problem.

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