When Is Fair Use Fair Enough?


(this page is part of the Family Guide to Digital Freedom, 2007 edition. Please do read that introduction to know more about the Guide, especially if you mean to comment this page. Thanks)

Before digital technologies and the Internet, just a few years ago, in order to duplicate music and movies on tapes or vinyl albums on other tapes or vinyl, you had to physically exchange them in the first place. Above all, the quality of any copy would have been worse than the one it came from: in practice, from every original album sold, only ten or twelve usable copies could be made. Now that music or, for that matter, almost any document or creative work can be coded as a sequence of digits, everybody can make millions of copies of it, all perfectly equal to the original.

This can lead to great cultural and economical progress, on a scale never imagined before, and to great benefits for artists and authors, but only if accompanied to different laws and, above all, a level of responsibility and basic knowledge in the general public much more diffused than it is today.

Otherwise, the consequences can be very dangerous both for the current media companies (which is not necessarily a bad thing) and, potentially, also for the artists and authors who do the real work or the real service.

Sure, today if one person buys one CD, everybody else could have a perfectly equivalent free copy in a few seconds, remotely. In spite of this, some fundamental concepts have not changed, and it is better to set them straight for the common good. Using music or any other creative work for free while it is still under copyright, against the wishes and livelihood of the actual authors is not fair. The same applies if somebody installs a commercial DVD SW player or any other software on his or her computer without paying whatever the author wants, as long as there is choice among many different software programs and it is possible to create free ones.

Moving for personal use music or other digital works legally obtained to any other media or device, as many times as one wants and without limits of time, is fair. Public redistribution of material which is still under copyright, without paying anything at all to the author, is not fair (unless, of course, this is just what the author wants, as it often happens). Making one thousand copies of a copyrighted DVD to sell or distribute them, for example, is certainly a crime, and must be prosecuted. And it was never different. It’s not like we’re “losing” any existing freedom. Since when copyright was introduced, it never was allowed to go beyond fair use and fair use never included public redistribution. Besides that, there is a lot of choice out there. If artist X starts to ask too much for his or her music, just go somewhere else.

Forcing people to pay many times for the same personal copy of the same piece of music is not fair. Forcing every author to lock him or herself into a corporation, or to change his or her line of work to survive isn’t fair either. File sharing and unrestricted redistribution have every right to exist (almost a duty, actually), as long as they are used to share for free what somebody created (created, not bought) and then freely decided to give away, or when the copyright is expired. The common “wisdom”, these days, is that copying music, movies or software without permission is never wrong, because copyright is an unfair privilege granted to a few companies, is in itself unfair and has no reason to exist. This may be true if thinking only of those companies, but it would also hurt artists, authors and society as a whole, both because the actual creators worked hard and because a lot of creative works would not exist otherwise.

Most of the problems created by copyright today are actually created only by its exaggerated extension in time. A copyright extended for many decades to all conceivable “uses” of creative works is only wanted by big media corporations, just because it is the only thing that makes really profitable to create and operate such big structures. A much shorter duration of copyright would make all the excesses of today not worth the effort, while still giving incentive to create many more works than would ever be possible through public or private patronage.

The fact that the duration of copyright has been unfairly extended beyond reason cannot be a justification to be unfair with artists and authors. It just means that it is necessary to reduce that duration, so that the actual authors can still get tangible benefits from their work, but the investment to control all of them is not convenient anymore.

Illegal copying, above all, is one of the most useless (hence stupid) crimes ever, because there are valid alternatives. It may even be the most effective way to give even more power and control to big corporations, so they can have even more control over your life and an even bigger slice of your money.

Such excesses are also influenced by, and influence in turn, how software is managed and developed. But you can and must, in your own family, do as much as you can to stop this self damaging behavior.

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