Lessig on fair use

Larry Lessig's creative commons newsletter this week tackles the widely misunderstood concept of "fair use" and the associated problems with DRM:

DRM, we fear, will add a layer of restriction to the Internet that will defeat content interoperability, and weaken "fair use."

"Fair use": No word is more used in debates about copyright with less understanding. What is "fair use" (in America, "fair dealing" in most of the rest of the world) and how does DRM threaten it?

The law recognizes three kinds of "uses" of copyrighted works:
1. Free uses (uses that don't trigger the law of copyright, such as reading a physical book);
2. Regulated uses (uses that do trigger the law of copyright, such as republishing a book;
3. Fair uses (uses that trigger the law of copyright, but which are nonetheless free because the law deems them "fair" — such as copying words from a book in a review of the book).

Digital technologies are changing the balance between these three kinds of uses. As life moves online, "free uses" shrink. Because every act on a digital network produces a copy, and "copies" trigger copyright law, there are vastly fewer "free uses" in digital space than in analog space.

This shrinkage means that "fair use" must now shoulder the burden of protecting uses that were before free. Yet there isn't much precedent protecting these new "fair uses." For example, there is no case that says it is a "fair use" to give someone a book. That's because in the analog world, giving someone a book never triggered copyright law, so no one ever needed the copyright defense of "fair use" to authorize that giving. But in the digital world, giving someone a book means making a copy. If that copy is not authorized, then it is only "fair use" that can secure the freedom to share. And those trying to defend the freedom to give must look to a body of "fair use" law built for a different world.

This point is crucial: we now must rely upon a clumsy and expensive legal defense ("fair use") to protect freedoms that were before taken for granted. No doubt, with all the money and time in the world, we might imagine that "fair use" freedoms would balance out. But this is where DRM becomes a particularly dangerous problem.

For before you can claim your use is "fair," you must have the technical ability to use the work in a particular way. "Fair use" is a defense; you have to be able to use the material in a way that creates a copyright question before you get to play your defense.

Yet if DRM is deployed the way most of it is designed, then the technology will remove the technical ability to use the work in a way that even gives you the right to make a fair use. "Fair use" would thus not be removed by the law. "Fair use" would be removed by code. And as in the United States at least, it is an offense to build tools to tinker with that code — even if the purpose is "fair use" — you begin to see the danger of DRM: digital technologies have shrunk the range of "free uses" (since every use produces a copy); this new generation of digital technology (DRM) will shrink the range of "fair uses," by removing even the ability to use content in a way that would otherwise be "fair."