Tim Lee’s recent comments on the Lee HoLllar essay on fair use for the Institute for Policy Innovation missed the point
entirely. In particular, Mr. Lee took exception to the position that
fair use does not equal convenient use. But, Hollar’s legal analysis
is sound.
In his essay, Mr. Hollar quotes the Second Circuit in Universal City Studios v. Corley:
We know of no authority for the proposition that fair use, as
protected by the Copyright Act, much less the Constitution,
guarantees copying by the optimum method or in the identical format of
the original… Fair use has never been held to be a guarantee of
access to copyrighted material in order to copy it by the fair user’s
preferred technique or in the format of the original.
Lee argues that when making fair use of an audiovisual work, it is
preferable to use actual clips rather than a transcript. Okay. The
Copyright Act, the DMCA, and the case law do not prevent that. Snippets
can be made of the work using other
technologies, such as a camcorder. It may not be the most convenient,
but it does accomodate fair use without undermining the policy goals of
copyright law.
Lee’s claim that "Fair use is about carving out a zone of autonomy
around the individual that’s not governed by copyright law,"
demonstrates a misunderstanding about the principles of fair use and
copyright law in general. In testimony presented to the
Subcommittee on Courts, the Internet and Intellectual Property in a
hearing on the broadcast flag, Marybeth Peters, the Register of
Copyrights, addressed this common misunderstanding about copyright law:
The proper fair use inquiry would include an assessment of whether the
consumer’s activity, if permitted on a widespread basis, will provide
benefits to the public without undermining the incentive for the
creation and distribution of works- that is, the ability of authors to
receive compensation for the dissemination of their works. Consumer
expecations…are not particularly relevant to this question.
Certainly fair use is an essential component of copyright law. The
public is enriched by "criticism, comment, news reporting, teaching.,
scholarship, or research." However, allowing unathorized access to
protected digital works undermines the policy goals of copyright to
balance the rights of the creator and the benefits to the public. It
seems to me that Lee’s response amounts to a missed opportunity to
effectively communicate what opponents of the DMCA mean when they talk
about fair use.