Tuesday, November 27, 2007

Fair Use vs. Fared Use

"Information wants to be free," claim those who decry the overpowering grasp of copyright law. But they cannot mean what they say. Information wants nothing at all. The epigram speaks not to what information wants, but rather to what people want: people want information for free.

So restated, the catch-phrase still rings true. Who would not prefer to get information--that increasingly vital good--at no cost? But, alas, information never comes for free. We can only account for its costs as fully as possible, try our best to minimize them, and allocate them fairly.

. . .

. . . Fair use is not free use. Users have to pay somehow, whether in lost opportunities or cash. Thanks to technological advances—digitalization, computers, and the internet—buying permission to use an expressive work often costs less than using it without permission. Thus has Apple's iTunes service flourished. As such fared use expands, fair use does and should give way.

Still, fair use will and should remain potent when a copyright holder entirely refuses to license access. Markets then do not simply fail; they fail to even exist. In such a case, fair use might well excuse the unpaid and unauthorized use of a copyrighted work. This holds especially true with regard to critical reviews, parodies, and investigative reporting.

What if copyright holders employ common law tools, such as licenses or automated rights management, to bar even the fair use of a work? In that case, we might well judge that copyright policy fails, on net, to promote the general welfare, the progress of science, or the useful arts. To remedy that wrong, however, we should not attack common law rights. If copyright and common law combine to give copyright holders too much power, we should trim back the former. As a special exception to common law, the Copyright Act remains, at best, no better than a necessary evil.

This chapter argues, in sum:
  • The scope of fair use will shrink as fared use grows, though objectionable uses will remain fair uses;
  • Copyright holders may use common law to limit fair uses; and
  • If in combination copyright and common law restrict too much expression, we should not throw out the latter with the former.


[NB: The above text comes from part of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Specifically, it comes from the introduction to Part I, Chapter 4: Fair Use vs. Fared use. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. I welcome your comments.]

[Crossposted to Intellectual Privilege and The Technology Liberation Front.]

4 comments:

Anonymous said...

Have you really so completely missed the point of the phrase "information wants to be free"? It has nothing to do with how much you pay for it. It refers to free as in speech, not beer. It simply means that it is much more difficult to keep information under wraps than to let it spread. Once a secret is out, it is nearly impossible to hide it again.

Clyde said...

The saying "Information wants to be free" has a history and a context. I suggest you look into them. As it is, your remarks seem embarrassingly ignorant.

A summary of its history is on Roger Clarke's page here http://www.anu.edu.au/people/Roger.Clarke/II/IWtbF.html

One of its fullest discussions is in John Perry Barlow's article here http://www.wired.com/wired/archive/2.03/economy.ideas_pr.html

You say "they cannot mean what they say." They cannot mean it *literally*, but they can and do mean it. It cannot be reduced to "people want information for free."

Ryan said...

Tom, I think the previous poster is being a dick--he could have phrased his comment far better, and far more cogently. But as much as it pains me to reinforce a flame, he's kind of right: I think you are mis-interpreting the catchphrase "Information wants to be free," or at least under-interpreting it.

While I'm having a hard time citing anything in particular, I believe that the original usage refers to the Internet acting as a solvent against information asymmetry. Inherently interesting info, whether it's MP3s, encryption algorithms, DVD decryption keys, source code, or state secrets, tends to disperse from high to low concentrations in a similar fashion to the conduction of heat.

The quote does take literacy license and personify "information", in the abstract, as having an inherent will. But this is done in the same spirit as, perhaps even as a snowclone of, sayings from physics and the hard sciences like "water seeks its own level."

The reality behind the literary device is somewhat as you describe: Human desires actually drive the propagation of information, as it has no inherent will of its own. But whereas you describe these human motivations as merely the desire of the person on low end of an information asymmetry seeking to obtain something for free, the reality is a bit more complex.

As demonstrated by the successes of the open source software movement, Wikipedia, and the multitude of freely-available, topic-specific forums available these days, there's also something obtained by the giver of information, as well as the receiver. This might just be the emotional warm-fuzzy derived from helping your fellow man, or it might be the ego boost of knowing that people are reading your opinions and taking them seriously. It might even be a case of deriving some "real" benefit from the release of the information: A whistle blower gets his boss fired by posting embarrassing company secrets to Wikileaks to speed up the promotion process. Or, the MySQL AB company posts its software and documentation online and encourages free use, and then reaps the rewards when its technology becomes a de facto Internet standard and the market for its unmatched consulting expertise for MySQL balloons. In all these cases, the information propagation is not driven directly by the desire of the receiver to benefit, although that usually plays a role in shaping the direct cause of the propagation: The perceived benefit the propagator sees for him- or herself.

While these motivations have always existed in some form, the existence and ubiquity of the Internet drastically alters the benefit calculations. Through various communications and information aggregation mechanisms (cheap and easily-installed forum software packages, SourceForge, Wikileaks, etc.), the transactional cost per viewer of publicizing information is signficantly reduced. Without the cheap, mass exposure powers of the Internet, a few anecdotes about my daily life don't have enough perceived value to make up for the costs of getting them in front of people. With the Internet, well... LiveJournal, ta da!

So that's the idea--as a medium of interpersonal communication, the Internet is much more conducive to the flow of information, which in turn opens more opportunities for individual actors to "free" information. The analogy with heat conduction breaks down pretty readily, though. I think it's better described, really, as a condition wherein non-public information sits at some kind of local minima of potential value, in a stable state, like a chemical compound. When the right catalyst comes along to overcome some minimum activation energy threshold, the compound will fall to a lower minima that has less potential relative to the intial state and release some energy.

Anyway, the book looks neat. I'm looking forward to it.

Tom W. Bell said...

Sorry, guys; I thought I'd posted a reply but it apparently didn't take. Anyhow, I don't think anybody's being rude, here. I'm pleased that you take my arguments seriously enough to (try to!) rebut.

Recall that you are looking at a version without footnotes. Those, you can find in the draft. In those notes, I give some of the history and context that you gents appeal to.

Even so, granted, I give a different spin on that old phrase than many folks like. Perhaps that irks. But I still think that attributing intention to information--even if only poetic license--threatens to mislead. It looks descriptive but in fact carries a normative agenda. I daresay that the ire I've roused offers some proof of that!

Here, again, is my short take. Yeah, information is hard to contain. In large part, that is because people try to get it. No surprise, there; we all want good stuff for as low a price as possible. But we do ourselves a disservice if we overlook the very human motives of the folks who produce and consume information. You won't end up describing very much very well if you ignore that.