Should consumers be treated the same as competitors?
Jonathan Zittrain, in a NYT article on file sharing, is attributed as saying that "there is no obvious historical analogue to the scattershot subpoenaing of individuals in copyright law enforcement, which has traditionally been aimed at businesses or people who are profiting from illegally copied material." [via FurdLog]
Zittrain is drawing two distinctions here. The first is between use of the copyright and use of the work. A competitor uses the copyright, whereas a consumer simply uses the work. The second is that historically, copyright is a tool used against businesses i.e. competitors, i.e. the person selling pirated copies on the street, and not against consumers.
A Note on Fair Use
To further validate these points we can look at the fair use doctrine. 'As originally promulgated, the fair use doctrine was a fair "competitive" use doctrine designed to enable a rival author or publisher to use a copyrighted work in preparing another publication.’ Therefore, the doctrine applied only to competitors, not consumers. [cite]
What this means
1. If consumers don't use the copyright, then there can be no copyright infringement.
2. If copyright law hasn't been enforced against consumers for centuries, then can it be fairly be applied against them now?
And that, I believe, is the brilliance of the simple statement Zittrain made above:
1. to situate the debate historically in terms of legal / illegal use of copyright; and
2. to indicate that our anger is completely justified in response to the slew of RIAA subpoenas.
Another POV
Mark Rasch discusses "Copying is Theft ..." and other legal myths in the looming battle over peer-to-peer in his column on SecurityFocus. Although, Rasch believes that copying is not theft, he, like others, lumps together copying with piracy. He also believes that fair use is required in order to allow for certain uses of copyrighted works.
This ignores the historical origins of copyright and places emphasis on fair use, when all that is required is ordinary use.
Trackback: Derek Slater
Zittrain is drawing two distinctions here. The first is between use of the copyright and use of the work. A competitor uses the copyright, whereas a consumer simply uses the work. The second is that historically, copyright is a tool used against businesses i.e. competitors, i.e. the person selling pirated copies on the street, and not against consumers.
A Note on Fair Use
To further validate these points we can look at the fair use doctrine. 'As originally promulgated, the fair use doctrine was a fair "competitive" use doctrine designed to enable a rival author or publisher to use a copyrighted work in preparing another publication.’ Therefore, the doctrine applied only to competitors, not consumers. [cite]
What this means
1. If consumers don't use the copyright, then there can be no copyright infringement.
2. If copyright law hasn't been enforced against consumers for centuries, then can it be fairly be applied against them now?
And that, I believe, is the brilliance of the simple statement Zittrain made above:
1. to situate the debate historically in terms of legal / illegal use of copyright; and
2. to indicate that our anger is completely justified in response to the slew of RIAA subpoenas.
Another POV
Mark Rasch discusses "Copying is Theft ..." and other legal myths in the looming battle over peer-to-peer in his column on SecurityFocus. Although, Rasch believes that copying is not theft, he, like others, lumps together copying with piracy. He also believes that fair use is required in order to allow for certain uses of copyrighted works.
This ignores the historical origins of copyright and places emphasis on fair use, when all that is required is ordinary use.
Trackback: Derek Slater
