Last month, the Consumer Electronics Association and other groups announced a “Digital Freedom” campaign that latches onto the concept of fair use–supposedly to benefit consumers.
Seems like a worthwhile effort. But in truth, it’s merely a return to an increasingly used playbook, an extremist interpretation of fair use to frighten and mislead consumers and policymakers.
Like a trademark that becomes generic, the fair use doctrine is in danger of losing its meaning and value if CEA’s self-serving claims are taken at face value. CEA has twisted and contorted “fair use” beyond its true intent, turning it into a free pass for those who simply don’t want to pay for creative works.
Critics like CEA sometimes lose sight of the fact that record labels and other copyright owners are as dependent on fair use as consumers.
So what is fair use, really? It’s codified in section 107 of the Copyright Act, intended primarily to promote such uses as criticism, comment, news reporting, teaching, scholarship or research. The determination is further guided by four factors–including purpose of use, the type of work, the amount used, and the effect on the market for or value of the work–which must be balanced to establish whether a particular use is “fair.” It is not an all-purpose excuse to make use of someone else’s property for free. And it is certainly not an excuse to boost the sales of electronic devices and services on the backs of hard-working creators.
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