Is There a Future for Fair Use?
Fair use is a notoriously vague portion of copyright law, that provides a balance between incentives to create intellectual works and promotion of the dissemination of knowledge. Technological and legal developments, however, leave many wondering if fair use has a future. Analyzing trends in areas that affect copyright law should provide insight into the future of fair use (Holland, 2002, p. 171). I will focus on developments in three areas: copyright law, judicial review of fair use, and the development of information access technologies.
Trends in Copyright Law
Exclusive rights granted by copyright law have significantly expanded since the first copyright act in 1790. Affected rights include extended copyright terms, new rights, and compulsory licenses, among others (U.S. Copyright Office, 2004). On the other hand, fair use and other exceptions to the exclusive rights of copyright holders are fewer and more narrow. These expanding rights effectively reduce the number of intellectual works that revert to the public domain. When the public domain shrinks, less material is available from which to create new works without additional cost. A tension is created between fair use and commercial interest in copyright, and because of competition between public and commercial interests, fair use is held in contention. To quote Loren: “[s]upporters of each new expansion inevitably remind those opposing the expansion of the existing fair use doctrine, as if the mere existence of fair use renders any expansion of the copyright monopoly acceptable” (Loren, 1997, II para 7). Extrapolating the trends in law into the future, it is likely that copyrights will continue to expand and eclipse fair use.
Trends in Judicial Review of Fair Use
Fair use doctrine originated in the judiciary (Loren, 1997, I(D) para 4) and it is in the judiciary where fair use is tested and defined. The vagueness of the law facilitates its manipulation in court according to economic and other external factors, which results in precedent that fails to maintain the original purposes of fair use. Of particular concern is the circular logic of the fourth fair use test, that which considers the “potential market for or value of the copyrighted work” (17 USC 107(4)). Opinions in fair use cases increasingly consider potential for economic benefits over other factors. For instance, in Texaco, the majority took a narrow view of fair use in the presence of licensing mechanisms (American Geophysical Union v. Texaco Inc., opinion, para. 80). Furthermore, in Sony, the dissent stated that harm is done to the value of a copyright if a copyright holder can establish revenue mechanisms for new technologies (Sony Corp. of Amer. v. Universal City Studios, Inc., dissent, p. 498). In each of these cases the judges emphasized the market value of copyrights over the value of the uses in question. Consideration only of the market for information promotes market exploitation over public benefit and undermines the basic purpose of copyright: to promote new works and the dissemination of knowledge. The trend in the judiciary is for copyright interests to leverage potential markets against benefits for the public, and it is likely to continue into the future.
Trends in Information Access
Regardless of the trends in law, the development of information technologies may be decisive in determining the fate of fair use. A critical difference between analog (e.g.: books, radio) and digital information sources is the potential for content creators to exert control over the use and distribution of digital information. Such control is enabled in two ways: by changing access technologies and by influencing the laws affecting these technologies.
A prevalent development trend is the creation of media formats that give content creators absolute control over the usage and distribution of their works. The Secure Digital Music Initiative was one of the earliest attempts at Digital Rights Management (DRM) (SDMI, 2004). SDMI sought to develop a standard for securing digital content within a licensing framework controlled only by content distributors such as record labels and movie studios. SDMI failed to gain momentum but other technologies have continued in the same direction. Microsoft's Windows Media format currently embeds DRM technologies that allow complete control over how often a work may be accessed, where it may be accessed, and the ways in which it can be copied (Microsoft, Inc., 2004). The format's licensing terms may be changed at will by the licensor and do not allow exceptions for fair use. Beyond file formats, computer and software manufacturers are developing computing architectures that could enforce rights at the hardware level (Trusted Computing Platform Alliance, 2003). Such “trusted computing,” if DRM-enabled, will prevent “unauthorized” software or hardware from enabling fair uses.
In addition to new access controls, legal mechanisms protect such technologies from circumvention. Circumvention is often necessary to unlock proprietary formats in instances where fair use is warranted. For example, a program called DeCSS allows access to DRM-controlled Digital Video Discs (DVDs) on a computing platform for which no means to access such media exists (Lessig, 2001, pp. 187-190). The Digital Millennium Copyright Act specifically prohibits the circumvention of access restriction technologies (DMCA, PL 105-304 & 17 USC 1201). Under the DMCA, DeCSS is illegal. Although the act contains procedures for circumvention in certain cases, such exceptions are not likely to prevail in light of judicial preferences in the matter.
Contractual methods of access control are also peculiar to digital information. Subscribers to subscription or paid services must accept licensing terms that often waive rights granted by copyright law, including those of fair use. For example, a satellite radio network's terms of use will not allow a subscriber to record any part of a broadcast for any reason, a use that would normally be allowed for traditional broadcast media (XM Radio, 2004, 1(b)). The trends in technology indicate that copyright law will be bypassed when DRM technologies and the laws that protect them are combined with licensing contracts.
The Trends in Summary
When considered together, changes in law, judicial review, and technology portray a bleak outlook for fair use. The dominant reason for this trend is summarized in the relative strengths of the major stakeholders: “public good” versus private interests. There is virtually no support for the public interest when compared to those of Hollywood and the intellectual property industry as a whole. As long as this is the case, attempts to limit the ever-expanding powers of copyright holders will remain reactive and lack momentum.
The imbalance between copyright stakeholders is significant, but not insurmountable. Efforts by people such as Lawrence Lessig and groups like the Electronic Frontier Foundation bring awareness of copyright issues to the public. Such awareness may help build momentum in legislatures and courts to bring copyrights into balance. But, if the law does not address the technologies of access, copyright holders will continue to bypass copyright law through centralized access controls and licensing regimes. Fair use may soon become insignificant as a result.
References
American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2nd Cir. 1994). Retrieved on 13 September 2004 from http://www.law.cornell.edu/copyright/cases/60_F3d_913.htm [2].
Holland, John H. (2002). What is to come and how to predict it. In J. Brockman (ed.), The Next Fifty Years (pp.170-182). New York: Vintage Books.
Lessig, Lawrence (2001). The future of ideas: The fate of the commons in a connected world. New York: Vintage Books.
Loren, L. P. (1997). Redefining the market failure approach to fair use in an era of copyright permission systems. Journal of Intellectual Property Law, 5(1), 1-22. Retrieved on 16 September 2004 from http://www.lclark.edu/~loren/articles/fairuse.htm [3].
Microsoft, Inc. (2004). Windows Media DRM. Retreived on 20 September 2004 from http://www.microsoft.com/windows/windowsmedia/drm/default.aspx [4].
SDMI (2004). Secure Digital Music Initiative. Retrieved on 20 September 2004 from http://www.sdmi.org [5].
Sony Corp. of Amer. v. Universal City Studios, Inc., 464 U.S. 417 (1984). Retrieved on 16 September 2004 from http://www.law.cornell.edu/copyright/cases/464_US_417.htm [6].
Trusted Computing Platform Alliance (TCPA) (2003). Home page. Retrieved on 7 February 2004 from http://www.trustedcomputing.org/home [7].
U.S. Copyright Office (2004). Copyright law of the United States of America and related laws contained in title 17 of the United States Code. Circular 92. Retrieved on 21 September 2004 from http://www.copyright.gov/title17/92preface.html [8].
XM Radio (2004). XM Satellite Radio Customer Agreement. Retrieved on 13 Sep 2004 from http://www.xmradio.com/get_xm/customer_service.html [9].
