March 4, 2021

Fair Use as Black Hole (Cont.)

In response to my earlier posting on fair use, Siva Vaidhyanathan points out one reason for the messiness of the fair use debate – different people mean different things by “fair use”.

Some people (mostly lawyers) use “Fair Use” in a narrow, legalistic sense, to refer to a specific set of exceptions to the enumerated rights of copyright holders. This is the sense in which the Copyright Act uses “Fair Use” (although many of these people interpret even the Copyright Act’s definition narrowly).

Others (mostly nonlawyers) use the term “fair use” in a more colloquial sense, to mean any use of a work that is fair and reasonable. This includes, for example, uses that are traditional, uses that are socially beneficial, and uses that don’t impinge on the copyright owner’s business model. It also includes any other uses that are, well, fair.

When one side makes an assertion, assuming its own definition of “fair use”, the other side can easily refute that assertion, simply by assuming its definition. This kind of argument generates heat but not light.

What we need is another term, other than “fair use,” to refer to uses that are “fair” in the sense of being decent and reasonable. Perhaps something like “legitimate use” will do the trick. Any suggestions?

(Some of you may wonder why I am suggesting that the nonlawyers must surrender the terminological field to the lawyers. All I can say in response is that you should know better than to try arguing with lawyers about definitions.)