Fair use is not just one copy!

My backlog includes plenty of Canadian proceedings that I'm overdue to comment on here, but today I took a break anyway and watched the first segment (just over 2 hours) of the Webcast of the above-linked hearing.  This was a hearing before the US House of Representatives Subcommittee on Commerce, Trade, and Consumer Protection, about HR 107 - the "Digital Media Consumers' Rights Act" which would overturn some of the worst aspects of the DMCA. Lots of high-powered people were there, including Lawrence Lessig and Jack Valenti; seeing them on Internet television was kind of neat because until now, I've only ever encountered either of them in print.

Overall, the points made were much as you might expect.  I was pleased with the general attitude of the Subcommittee members.  Most of them seem to have a pretty good handle on what this is all about and why it's important.  I especially liked the speech given by Joe Barton, the head of the main Committee - he made a lot of the same points I like to make about how "If I pay for the DVD, I own it!" and they sounded extra good in his Texas accent.  I loved the bit about how trying to stop him from copying his own DVD that he paid for, in his own house, is just like trespassing; at any second I expected him to pull a shotgun and threaten the DRM industry with it, in a perfectly dignified and collegial way.  Congressman Boucher did a good job of playing to the camera; so did Jack Valenti; most of the other participants just sort of mumbled into their own laps.  I think Lawrence Lessig shouldn't cross his arms as much as he does.

Jack Valenti lived up to my expectations.  He is a liar and a sleaze.  He denied ever having opposed the introduction of the VCR. In his alternate version of history, this testimony in 1982 was only aimed at securing a copyright royalty much like the Canadian BML. I was particularly unhappy with his proclamation that the most important reason the DMCRA shouldn't be adopted is because the DMCRA legalizes hacking.  Full stop.  No further explanation necessary, let alone any definitions.  It legalizes hacking, we all agree what that means and that it's bad, so that's obviously a reason the DMCRA shouldn't be adopted.  Well, the statement is offensive in at least three ways.  First of all, he's stolen the word "hacking" - that word once referred to an honourable activity.  Second, he's misusing it even under the revisionist definition that has become popular in the media recently.  Third, even under the further-warped-from-there definition he seems to be using (apparently "hacking" = "circumvention of DRM for purposes of piracy"), his statement "the DMCRA legalizes hacking" still isn't even true.

Then, of course, if you provide the necessary definitions and filter out the lies, what you end up with is a tautology.  Of course the DMCRA legalizes circumvention for fair use.  That is its purpose.  The statement, at root, is just a more elegantly-stated version of Suzanne Conway's "If you change copyright law, then you are changing copyright law!" (from the Ottawa consultation meeting of 11 April 2002).  I can't argue with Ms.  Conway on that point, but I'm not sure why she thought it was a necessary point to make.  Is that kind of thing really the most important objection to the DMCRA? If so, full speed ahead!

I was sorry nobody asked Jack Valenti straight-out "Do you believe you have the right to block fair use?" because in his testimony he said that he believed that several times over, but never directly, and it would have been awfully nice to get either a "yes" or a "no" into the record - "yes" would have shown everyone exactly where he stood, and "no" could have been used to support a claim of inconsistency.  Basically, the bottom line on Valenti's testimony was that he said a lot of random things that did not really make any sense, but which superficially sounded profound and hard-to-dispute.

If I had been a witness, then to the Subcommittee member who claimed that this was about "jobs" I would have wanted to say, you're damn right it's about jobs - it's about my job!  I am a computer scientist, and my work requires me to be able to exercise fair dealing (what would be "fair use" in the US) towards the work of others - including reverse-engineering access control systems and publishing commentary on them.  I could not do my job in a DMCA regime; that's a big part of the reason that I didn't apply to any US universities when seeking my current position.  This is not a question where the "jobs" at risk are on just one side - passing the DMCRA might maybe threaten some jobs if you believe the statistics of the MPAA (which is an organization headed by a sleazy liar), but not passing the DMCRA definitely threatens a lot of jobs including mine, and it's not so easy to say whose jobs are the most valuable.  I myself think my own job is valuable.

To the member who mentioned that she was a former high-school English teacher, I would have wanted to say, in that case you know as well as I do how important it is for scholars to be allowed to quote, cite, and review other scholars' work - not to plagiarize it, but to actually use it according to scholarly standards.  That is exactly fair use.  That is what this debate is all about.  The existing DMCA threatens it.  The propososed DMCRA restores it.  Instead of saying "The DMCRA would be like allowing my students to plagiarize each others' essays!" you should consider that without the DMCRA, your students are not allowed to write their essays in accordance with standard scholarly practice in the first place.

Now, the main point I want to make in this entry is actually something else, and it relates to the definition of "fair use" or "fair dealing".  Everybody in the entire proceeding (at least, in the first segment which was the part I saw) seemed to fall into the same rhetorical trap.  Lessig, Valenti, all the Subcomittee members, and all the witnesses.  I don't know if this trap was deliberately created by someone or just an unfortunate accident of the way the debate ran, but I think it's very dangerous to our side and should be avoided carefully.

The trap is this:  they all talked as if the number of copies was the most important, or the only, distinction between piracy and fair use.  There were lots of questions about whether it was possible to allow the viewer to make one copy but not one thousand copies.  Answer:  such a limitation is not technologically possible, but that issue is so totally irrelevant as to be freakishly dangerous to the possibility of a sane debate on the real issues!  We should not be pursuing "limit on number of copies" as a technological goal, and we should not be making policy based on the ability, or lack thereof, to limit the number of copies.

Fair use is not determined by the number of copies.  If I make one copy, that may or may not be fair use.  If I make ten copies, that may or may not be fair use.  If I make ten million copies, that still may or may not be fair use.  The number of copies is seldom even a significant part of the fair use test, and it should never be the sole determining factor.  If we have to limit the fair use test to just one prong that a machine can check, then the number of copies is almost the worst possible thing for the machine to check.

Fair use covers making a backup copy of a disc I purchased, but that's relatively unimportant.  As many people pointed out, if I can afford to buy one, I can usually afford to buy two.  The really important purpose of fair use is in research and scholarship - and especially political comment.  I need to be allowed to put a quote in my scholarly paper and publish it.  The "and publish it" is absolutely key.  It's not good enough for me to be allowed to put a quote in my paper, put one copy of the paper on my shelf, and have that be the end of it.  For fair use to serve its purpose, I have to be able to distribute that essay to others.

Fair use comes down to freedom of expression, and freedom of expression does not mean "freedom to express each idea to yourself exactly once".  It means freedom to express an idea to the entire world.  Fair use cannot retain its democratic purpose when limited to any smaller number of copies than one for every person in the world.

[Fair use is not just one copy!]

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