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Wednesday, May 22, 2002
"Fair Use" is getting unfair treatment


To hear the entertainment industry tell it, a wave of digital piracy threatens to destroy the future of movies, records, and other media. While the danger of piracy is real, the other side of the story is that Hollywood has been on a remarkable legislative and legal winning streak in its campaign to win increased protections. Along the way, some long-established consumer rights may disappear. And the message from the courts so far seems to be "Get used to it."

The invention of digital media has made it possible for people without any special skills or equipment to make copies that are essentially indistinguishable from the originals. It has also given the creators of media the technical means not only to prevent copies from being made but to limit the ways consumers use products they have purchased, for example, by blocking the playing of U.S. DVD movies in Europe or preventing certain music CDs from being played in computers.

Copyright law has always tried to strike a delicate balance between the rights of content creators to be compensated for their work and the rights of consumers to use what they have paid for. But the development of digital media and Big Media's attempt to completely control it have destroyed the delicate equilibrium that is copyright law.

UNDER ASSAULT. Two legal doctrines, called "first sale" and "fair use" are threatened by these technical changes. Under first sale, the buyers of copyrighted works in the U.S. may dispose of their purchases as they see fit [this isn't true in all countries]. If you own a book, record, or DVD, you can sell it, lend it, or give it away. Fair use is a broader and vaguer concept, but it covers such things as quoting from a book in a review, copying part of a work for classroom use, or, most relevantly, making a copy of a music recording for personal use.

Both doctrines are now under assault. The most recent blow came in a May 8 ruling by U.S. District Judge Ronald M. Whyte in San Jose, Calif., in which he upheld the constitutionality of key provisions of the 1998 Digital Millennium Copyright Act [DMCA].

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