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Recent reading: beyond fair use

By Rebecca Tushnet

Gideon Parchomovsky & Philip J. Weiser, Beyond Fair Use, 96 Cornell L. Rev. ___ (2011)

This is an interesting piece, one I?m still mulling over, arguing that because fair use is failing in many of the things we want it to do?particularly when the DMCA is taken into account?the law should incentivize content owners to offer some use privileges, initially by letting them define the contours themselves and, if that fails, through mandates that would draw on information about practices developed through voluntary actions.

This is a plausible solution, they suggest, because many copyright owners are already voluntarily relaxing the total control to which some descriptions of copyright aspire. The authors contend that their proposal ?holds a great promise of creating a greater level of certainty as to what users are allowed to do with respect to digital content and empowering users to become more sophisticated purchasers of digital content. By contrast, demand side solutions, by and large, relegate[] users to a life of uncertainty as they require them to determine whether their planned use falls within the aegis of the current fair use doctrine?a near impossible task given the vagueness of the fair use doctrine.?

I found the article long on descriptions of models for allowing limited personal copying, notably Windows Media DRM, and short on evidence of market success. When was the last time (or, heck, the first time) you bought a WM license from MediaKey? Me neither. And I?ve tried a lot of new-media experiments?I paid for Stephen King?s The Plant; I possess DRM-protected pdf files, though that was a mistake.

I?m not saying such models won?t work for listeners/readers/viewers when integrated with sufficiently attractive tech and content (e.g., the Kindle). I?m saying that this creates a bewildering array of silos of different sets of permissions. Matters are even worse with the authors? examples of permissive remix?they offer a handful of idiosyncratic examples, some of which aren?t even operational (the AP has ?promised? to establish a policy indicating its opinion on how many words of an AP story one may quote without paying the AP?I?m not holding my breath) and few of which represent much more than an attempted contraction of fair use by setting rules for which fair uses the copyright owner is willing to permit. That is not how user privileges, especially those for uses beyond private copying, should (or can) work.

xkcd breaks it down:

I think the problem of content owner-defined rights may be connected to the numerus clausus principle as ably elucidated by Thomas Merrill and Henry Smith: we limit types of property more than we limit the customizability of contracts, so that people can more easily tell what they?re dealing with when they encounter a piece of property. Fair use can be hard to predict, yes, but it can be a lot easier than parsing out a contract?and once you learn the fair use factors, you can make a judgment call about every fair use situation you encounter, instead of having to learn a new set of permissions every time. This is why I think fair use principles focused on practice communities offer a really promising development. And it?s not as if licenses solve the interpretation problems of fair use; even setting problems of remix aside, which I?m unwilling to do, consider the massive uncertainty surrounding the definition of ?noncommercial? in a Creative Commons license. The authors are well aware of the need for simple, clear rules, unlike the average privacy policy. I just doubt that multiple private actors will do better than fair use at providing such rules (with the exception of "you can make as many copies of this as you yourself have devices").

Final note: the DMCA is important to their argument, yet the authors don?t propose anything to cut back on the powers granted by the DMCA. Even if content owners grant permission to circumvent technological measures, you?d still need fancy footwork to allow people to provide the devices necessary to take advantage of such permission?and content owners are unlikely to provide the relevant tools themselves, preferring to provide specially chosen bits and pieces when they allow some remix. At a minimum, we?d need some DMCA exemptions focused on taking advantage of content owner authorization.

Full post as published by 43(B)log on March 26, 2010 (boomark / email).