Yesterday’s exchange with Ernest Miller got me to thinking about why I didn’t mention fair use in my initial posting. I realized there is another reason that I hadn’t stated before: that I was trying to avoid the rhetorical black hole that fair use has become.

A rhetorical black hole is like an astronomical black hole: events inside it have no effect on the outside, and yet it attracts everything in its vicinity.

Abortion is the classic rhetorical black hole in American politics. Nearly everybody has a strongly held opinion. Debate is fruitless because regardless of the merits of the issue, no amount of discussion is going to change anyone’s mind. Debates on the issue follow a predictable course, as though performed by predefined characters reading from a script.

The abortion debate has the two characteristics of a black hole. Since no minds get changed, events inside the debate have no effect on anything outside of the debate itself. And yet the abortion debate has a strong attractive power: any conversation that strays too close to the abortion issue will get sucked in, never to escape.

The same is true of the fair use debate. We see the same scripted arguments from the same characters. Some of these arguments are valid and some are not, but they keep coming back regardless. No minds are being changed anymore. And the fair use debate is sucking the energy out of other related debates.

I am not saying that these issues are unimportant. I am not saying that it doesn’t matter who is right. I am not saying that we should surrender and concede the field to the other side.

What I am saying is this: if you can make your argument without dragging in fair use, try to do so. Don’t let your argument get sucked into the black hole.

Sasha Volokh tells an amusing story about asking record companies for permission to tape recorded music. Once they realized he was serious, the companies almost all gave him permission and thanked him for asking.

We should do more of this. When companies make silly overreaching claims about the extent of their copyrights, don’t just ignore them. Call them and ask for exceptions. Call WalMart and ask permission to tell your friends about their prices. (WalMart told FatWallet’s ISP that that’s infringement.) Call Turner Broadcasting and ask permission to fast-forward through the commercials in their shows. (Turner Broadcasting CEO Jamie Kellner told Cableworld that commercial skipping is illegal.) Call Adobe and ask permission to read their e-book of Alice’s Adventures in Wonderland to your kid. (One of Adobe’s licenses prohibited this.)

Don’t call these companies just to harrass them. But if you do want an exception to their stated rules, go ahead and call.

(If any of you do try calling, please let me know what happens.)