This work is licensed under a Creative Commons License Redistribution is permitted for non-commercial purposes provided that proper attribution is included.
Content © 2004 Laurence Garfield, Nathan C. Hampton, and Jeromy Stark.
Copyright grants to the author of a work exclusive rights to the distribution and duplication of his copyrighted work. That right is established by the Constitution. However, the Constitution also ensures to all people the right of free speech, that is, the spreading of information. It is also understood that copyright is not an ends in itself; it is a means to an ends, those ends being to promote the progress of science and the useful arts. As such, there are cases where copyright should not apply. Judicial decisions over the years acknowledged this apparent contradiction, and established the concept of "Fair Use".
Fair use was codified in 1976 in Section 107 of copyright law [10], which stated that duplicating a copyrighted work "for the purposes such as criticism, comment, news reporting, teaching, scholarship, or research" [10] does not infringe upon that copyright. For example, criticism and comment often require reproducing a portion of the work in question, such as in a book review or referencing a work for satire. Dissecting a work into its constituent parts, which by necessity involves duplicating portions of it, is often necessary for research and scholarship purposes, as well as for teaching others about how such works are created.
Section 107 provides certain guidelines for whether or not a use of copyrighted works is infringing. Specifically, it provides guidelines for fair use that "shall include -
It also established the concept of "First Sale". [11] That is, once the copyright holder has provided a copy of his work to another, the receiver is free to transfer, sell, or grant that copy to another without requiring the permission of the copyright holder. That is, the copyright holder loses control over the non-duplicative use of the work after the "first sale". The active used book and used album and CD industries thrive on the first sale doctrine.
There are other fair use rights established by copyright law. Section 117, for instance, establishes that duplicating a work for personal backup and archival is considered fair use. [12] That includes copying a copy of a computer program, in case the first copy is damaged or destroyed.
Since the copyright act, the courts have established other fair use rights based on the guidelines laid down by the copyright act in section 107. One such fair use right is that of "time shifting". That allows a person to record and playback a copyrighted work ("shift" it to another point in time) for personal consumption when it is more convenient. [13] The "record" button on VCRs and personal video recorders such as the TiVo are explicitly legal for that reason. Also related is the concept of "space shifting", that is, moving the work from one location to another.
All of the aforementioned fair use rights have one common element: they do not significantly reduce the commercial viability of the copyrighted work, and thus do not decrease the copyright holder's incentive to create more works and thereby promote the progress of science and the useful arts.
However, in recent years a disturbing trend has developed, especially in the digital realm but in other fields as well. Some copyright holders have begun to force users to surrender their fair use rights by means of license agreements or contracts. Others have begun implementing so-called "Digital Rights Management" (DRM) systems, which control access to a work and technologically prevent the exercise of fair use rights.
Such license agreements, sometimes referred to as "shrink-wrap" or "click-wrap" licenses (since they are generally used on commercial software that is sold in shrink wrapped boxes, and the license agreement is tacitly accepted by clicking on an "accept" button during program installation), often require the user to give up certain fair use rights in order to use the covered work. Typically, the agreement is only available after the user has purchased the work, and if he decides for whatever reason to reject the agreement returning it is often difficult if not impossible. Most stores have no-return policies on opened software, and there is no way for the purchaser to see the agreement without opening the software.
These "agreements" are sometimes innocuous, but other times require the user to give up various fair use right or limit the ways in which the user may use or dispose of the work beyond the limits imposed by copyright. For example, recent versions of the Microsoft development tools include a license agreement that forbids the user from writing software that competes with certain Microsoft products. Other licenses from a growing number of software companies require the user to grant the copyright holder the ability to remotely monitor the usage of the copyrighted work, and even modify the configuration of the user's computer without warning. Others limit transferability of the work, violating first sale.
While the fair use rights still technically exist, the receiver of the work is, under such license agreements, required to surrender some of those rights. The concept of requiring someone to contractually surrender a right is itself a questionable practice at best, but even more so when it is a question of abuse of monopoly power. (Recall that all copyrights are a government granted monopoly.) It is even more questionable when the stated purpose of the monopoly is to "promote the progress of science and the useful arts." Fair use rights, by definition, are those that do not impede the progress of science and the useful arts. Restricting them goes against the stated purposed of copyrights in the Constitution.
There is also the larger problem that such license agreements effectively circumvent federal law. Copyright law provides for various fair use rights, but if they must be contractually surrendered in order for a person to even gain access to a copyrighted work, the the law becomes impotent.
Therefore, copyright law should be amended to include a statement to the following effect:
No party who has legally received a copy of a copyrighted work may be compelled to surrender any rights or rights of usage under the provisions of Title 17 of the U.S. Code (or any successor statute), including fair use, by means of contract, license, or other legal agreement.
Content © 2004 Laurence Garfield, Nathan C. Hampton, and Jeromy Stark.