In the current copyright debates, critics are constantly complaining that intellectual property protections, in particular the Digital Millenium Copyright Act (DMCA), stand in the way of “fair use.”
But such critics often fail to make a specific case for a specific fair use, and thus seem to be arguing for fair use on the basis of convenience, rather than upon any legal basis.
In "What's 'Fair'?," a new Issue Brief published by the Institute for Policy Innovation, University of Utah professor Lee Hollaar discusses fair use, and how fair use today is being pushed well beyond its roots of encouraging "transformative" or "productive" works that add to the body of knowledge. He notes some cases in which fair use should probably be updated and extended, and also several new trends that may actually invalidate the original justification for the fair use copyright exception in those cases.
In the landmark Sony decision on the VCR, the Supreme Court found fair use based not on the creation of any new work, but on an economic justification. But Hollaar points out that under "economic fair use," what is fair today might be unfair tomorrow. Each new technology or changes in the market require a new evaluation of whether a use remains fair. Copyright owners can reduce claims of "fair use" by making their works available in ways that not only eliminate the economic arguments, but also lessen the possibility of misuse, such as setting up a center for licensing movie scenes for legitimate classes or critics while keeping the entire movie from being copied.
And because there is no other justification in the copyright laws for the intermediate copies needed to use a digital work, "fair use" has become the explanation. Congress should address this "fair use of necessity" by updating the statutes to explicitly permit such uses, with appropriate restrictions so that they don't become excuses for unfair infringement.
Because fair use is really a case-by-case issue, those concerned about copyright "fair use" need to make specific arguments for their cause, rather than making broad arguments based on convenience that would have the effect of dramatically reducing the usefulness of copyright protection.