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“Beyond Fair Use” – A Proposal for the Digital Age?


As part of my daily diet of copyright cuisine, I sample the tables of contents of various recent law review issues to see if anyone has something interesting to say about fair use. The other day I came upon an article in the November 2010 issue of Cornell Law Review entitled “Beyond Fair Use.”  The authors, University of Pennsylvania law professor Gideon Parchomovsky and U.S. Deputy Assistant Attorney General Philip Weiser, aptly explain how the Digital Millennium Copyright Act (DMCA) has depreciated the balancing effect of fair use in our copyright system by chilling the creativity of users of copyrighted content. When enacting the DMCA, the “Congress made a conscious decision not to recognize fair use as a defense in circumvention cases” and thereby “significantly limited the scope of fair use for copyrighted works in digital media.” (p. 93-94)

In response, several scholars have proposed solutions that purportedly  enable creators to access legally those works protected by Digital Rights Management or other types of technological protection measures. But, the authors point out, these solutions suffer from certain fatal flaws. For example, two scholars have separately, but similarly, proposed the creation of an administrative agency within the Copyright Office or as an independent office that would be granted the authority to promulgate regulations and issue rulings on what types of uses constitute fair use. The costs of time and money that would be faced by an agency handling the volume of inquiries render this proposal unlikely of success. Other proposals noted by the authors include the call to grant users “the right to hack” and the development of a reverse notice system whereby content users would alert copyright owners of their intent to use copyrighted content and the failure of the owners to respond within an allotted time would constitute a grant of permission. The authors contend that these proposals are also flawed on account of the average citizen’s tech savvy precluding their ability to hack or circumvent protection mechanisms and access the protected content.

Although the authors recognize that these prior proposals have some merit, the inherent flaws in each mandate, in their minds, the offering of yet another proposal, which in my mind is also fatally flawed for some of the same reasons they cited when critiquing the earlier offered solutions.  Drawing upon real-life examples whereby content owners voluntarily permitted users to create copies of digital works (e.g. Apple’s FairPlay), the authors propose a “two-stage regulatory regime” that largely is reliant upon the competitive nature of business (p. 126-136) The creation of competition would come, suggest the authors, from the requirement by the Federal Trade Commission (FTC) that digital content providers (1) include in their products a conspicuous statement of access and use standards for consumers and (2) devise innovative technological ways of implementing that use and access. The authors hypothesize that this notice system will create competition amongst providers and encourage experimentation in access methods. As a result, users will be afforded privileges they do not presently enjoy. While the authors expect this system to be successful through this initial step, they nevertheless offer a “second” step to be used in the event the desired result is not achieved. The authors assume that competition and experimentation will have occurred and a wealth of data about what worked and what didn’t will become available. Should an extra nudge be needed, then, Congress should take this data and use it to draft a scheme of user accommodation, which the FTC would then be charged with enforcing.

While I agree with the authors about the powerful effect of competition, I also feel that their proposal suffers from the flaws of cost and of user savvy. Although the FTC is accustomed to regulating and enforcing a system such as that proposed (the authors analogize it to the FTC’s involvement in the privacy notice regime), the addition of this new and potentially larger task will be taxing on the present resources. Further, users may be stymied by constantly changing access modes to digital content, which may be the end result of the “experimentation” envisioned by the authors. Finally, I am left wondering if these notices of user privileges are necessary in light of the availability of Creative Commons licensing, an already established and simple to use system for notifying users of how digital content may be used. While the Creative Commons system lacks the technological component for controlling access, it may be more worthwhile to explore ways which this already developed notice system can be utilized rather than draft additional lengthy click-through notices that most users don’t take time to read.


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