Fair Use Bill of Rights

Ross Mayfield praises the Digital Consumer bill of rights, asserting the rights that consumers have had until recently. These include:

  • The right to “time-shift” media (recording a TV show and watching it later).
  • The right to “space-shift” media (copying a CD to a portable MP3 player).
  • The right to make backup copies of your media.

This is a step in the right direction, and would be improved by going a step further.
We need a strong expression of “Fair Use”, including:

  1. Consumer fair use: “time-shift”, “space-shift”, and “back-up
  2. Creative fair use: the right to sample, quote, and recycle artistic ideas in the creation of new art
  3. Satiric fair use: the right to quote a work for the purposes of satire and parody
  4. Technical fair use: the right to take somthing apart to see how it works, in order to improve on it or interoperate with it
  5. Journalistic and academic fair use: the right to quote snippets for news, commentary, education and research

To my understanding (I’m not a lawyer), only the last item in the list is codified in the 1976 Copyright Act. Other cultural rights, which were a part of the balance in copyright law intended by the framers of the constitution, and were developed in US legal tradition, are being rapidly eroded by increasingly harsh laws that restrict the use and creation of culture.
Just as the Bill of Rights enshrined a core set of rights for citizens, the “Fair Use Bill of Rights” would enshrine a set of rights for consumers and creators of culture.
Please add items missing in the list, and correct errors of fact.

4 thoughts on “Fair Use Bill of Rights”

  1. I think this is a dangerous idea. Rather than boxing in fair use to a set of enumerated purposes, we should be working to limit the rights of proprietary interests.
    This is like telling a bully: Don’t cross this line. Ok, well then, don’t cross this line. Well, don’t cross *this* line, I really mean it …

  2. Chip,
    I think this would be true if the “bill of rights” tried to create tight definitions, which will inevitably prove too tight (this is one of the flaws of the DMCA).
    My thought is they would be better articulated broadly, like, say: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
    This leaves the definition of “freedom of speech” to future definitions, while enshrining it as a principle.
    One of the challenging things about advocating against the S-DMCA is that the bad guys have been so successful portraying users as potential criminals. With this prejudice, a law that says “don’t modify your computer with intent to defraud a service provider” sounds almost reasonable.
    In order to win this battle in the long term, we need to change common sense, so that people think of content use in terms of rights and freedoms, not just in terms of theft.

  3. Seriously. We are loosening all this fair uses that are mention above. Look for instance at the DVD. You can

  4. A couple things: Although copyright holders are quick to take offense, the right to satire and to quote are part of fair use (don’t know where they’re explicitly defined). Recycling as in sampling is not fair use. Time-shifting has been upheld, I think, by the Supreme Court for VCRs. Likewise backups.
    But I agree with Chip: ideally there would be a limited definition of a copyright’s protection (something like “you have the right to enjoin others from redistributing for profit your work in whole or large part”), and everything else is fair game.

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