Archives for December 2002

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.)

In 1641, John Wilkins published the very first book in English about cryptography. (It discussed many other topics as well.) The book’s title was “Mercury; or, the Secret and Swift messenger, shewing how a man may with privacy and speed Communicate his thoughts to a Friend at any distance.”

Wilkins ended the discussion with two pages on the policy implications of cryptography, in which we can see many of the issues we are still debating today. (For images of the two pages, courtesy of Ross Anderson, click here and here.) This is what Wilkins wrote:

The Poets have feigned Mercury to be the chief Patron of Thieves and Treachery …. And the Astrologers observe, that those who are born under this Planet, are naturally addicted to Theft and Cheating.

If it be feared that this Discourse may unhappily advantage others, in such unlawful courses; ’tis considerable, that it does not only teach how to deceive, but consequently also how to discover Delusions. And then besides, the chief experiments are of such nature, that they cannot be frequently practised, without just cause of suspicion, when as it is in the Magistrates power to prevent them. However, it will not follow, that every thing must be supprest which may be abused. There is nothing hath more occasioned Troubles and Contention, than the Art of Writing, which is the reason why the Inventor of it is fabled to have sown Serpents Teeth: And yet it was but a barbarous act of Thamus, the Egyptian King, therefore to forbid the learning of Letters: We may as well cut out our Tongues, because that member is a world of wickedness. If all those useful Inventions that are liable to abuse, should therefore be concealed, there is not any Art or Science which might be lawfully profest.