[free-sklyarov] The Fundamental Nature of Fair Use

Jonathan Weesner Jonathan at Weesner.org
Mon Aug 6 13:29:40 PDT 2001

The notion of Fair Use is fundamentally a legal judgement on the uses of 
physical property.

With the advent of digital information, there has been an effort to create the 
concepts, legal framework, and (to a minimal extent) moral framework, for a new 
class of property, often called Intellectual Property (IP).

Unfortunately, there does not currently exist an IP equivalent notion of Fair 
Use.  In fact, the DMCA makes any such notion impossible.

The following is a discussion of our current, physical-property based notion of 
Fair Use:

SHORT FAIR USE DEFINITION: Fair Use is a Court opinion about the legality of an 
existing, physically possible, property use.

GENERIC FAIR USE EXPLANATION: If I, as the owner of a physical object (my 
property), find that I am physically able to do X with it, then fair Use tells 
me whether or not it is legal for me to do X with it.

REALWORLD FAIR USE EXAMPLE: If I, as the owner of a VCR (my property), find that 
I am physically able to record a TV program with it, then Fair Use tells me 
whether or not it is legal for me to record a TV program with it.

IMPORTANT FAIR USE POINT (1) : Fair Use does not say that I must be given the 
ability to record TV shows.  It only states that if I find myself able to record 
a TV show, it is legal for me to do so (within certain limits not discussed 
here).  If I have a MacroVision VCR that cannot record certain TV shows, have my 
Fair Use rights been violated? No. I am physically unable to record TV shows so 
Fair Use does not apply to this case.  You may respond : "Yeah? Well a screw 
driver and a soldering iron can fix that!".  You are probably correct.  The DMCA 
is designed to address this issue in the area of digital information (IP).

IMPORTANT FAIR USE POINT (2) : Fair Use is decided on a case-by-case basis by 
the Court.  In practice, Fair Use is decided on a scenario-by-scenario basis 
because the Plantiff / Defendant can argue that their case is very similar to a 
previous case (similar scenario), and should therefore have the same outcome as 
the previous case.  In the VCR example, We know this is Fair Use because of a 
legal battle a few decades ago. One party -- the owner of a VCR -- noticed that 
it was physically possible to record a TV show, and argued that it should be 
legal for him to do so.  The other party said that this amounted to theft and 
argued that it should be illegal.  The court ruled that (within certain limits) 
it is legal for a VCR owner to record TV shows.

IMPORTANT FAIR USE POINT (3) : Fair Use applies to specific uses that are not 
already specifically addressed by Criminal Law and Property Law. For example, if 
Bob uses his gun to kill someone, he could argue that he has discovered his gun 
is able to kill people, and that this use should be legal under Fair Use. Of 
course, Bob's trial will deal with existing Criminal Homicide Law and Fair Use 
will only come up if Criminal Law does not specifically address his actions 
(unlikely!).  The DMCA is designed with this point in mind.

The fundamental nature of Fair Use is very different from the fundamental nature 
of Constitutional Rights.

CONTRAST: FAIR USE VS. CONSTITUTIONAL RIGHT.  Consider our Constitutional Right 
to Legal Representation.  If this was a Fair Use "Right" then it would read 
something like this: If you are able to find a lawyer in your area, and are able 
to persuade this lawyer to represent you, then Fair Use says that it is legal 
for this lawyer to represent you in court.  The implication of Fair Use is that 
if I am unable to find / afford a lawyer, then I must go through trial without 
legal representation!  Clearly, our Legal Representation Right is more than Fair 
Use.  Actually, this is a poor example because it does not contain the concept 
of Physical Property.  I just wanted to point out that Fair Use and 
Constitutional Right are fundamentally different.

I Am Not A Lawyer.  Just a concerned US Citizen who has researched this issue. 
I know that my understanding is not perfect and welcome any feedback.  I do 
suggest that you consider replying to me directly (off list), since this forum 
is focused on Freeing Dmitry and Fair Use is peripheral to that noble goal.

I have another rant about why I believe that the DMCA prevents the IP equivalent 
of a Fair Use notion... but I think many will agree that I have preached enough 
in this forum :o)

Send me email if you are interested in more....

Jonathan Weesner
Jonathan at Weesner.org

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