According to a new report released today by the Institute for Policy Innovation (IPI), it is misleading to complain about "fair use" obstructions in copyright without specifying what type of fair use is being abused.
"Those claiming that 'fair use is hurt' by legislation, litigation or technology need to say what they mean when they talk about fair use, identifying the types of use that will be affected and justifying why that use is fair," says Lee A. Hollaar, author of the IPI report "What's Fair?" and professor of computer science at the University of Utah.
"Without doing so, it is impossible for those proposing legislation to try to meaningfully consider fair use."
Too often, fair use discussions stop at the "fair use" reference and do not identify a "particular use," a "transformative fair use," an "economic fair use," or a "fair use of necessity."
Take the Digital Millennium Copyright Act (DMCA), for example. Critics often rail about the bill's supposed "fair use restrictions" like preventing film critics from copying movie scenes into a review, or inhibiting instructors from creating a compilation disk of movie scenes for students.
Measured against a specific type of fair use abuse, these DMCA complaints have no grounding. These criticisms are more restrictions on convenience rather than a particular fair use concern, and "Convenience is not a part of the fair use analysis," reminds Hollaar.
Hollaar concludes: "Without knowing the nature of the fair use allegedly being hurt, it is impossible to assess valid arguments, or whether there are alternatives to lessen the impact of the restrictions."
The Institute for Policy Innovation (IPI) is a national, free-market think-tank based in Dallas, TX. Copies of the report, "What's Fair," are available online at http://www.ipi.org