In a classic case of "my industry is bigger and more important than yours," the Computer and Communications Industry Association is campaigning to prop up the "fair use" exceptions to U.S. copyright laws, calling them "the cornerstones for creativity, innovation, and... an engine for growth for our country."
The CCIA, which represents Google (GOOG), Microsoft (MSFT), Yahoo (YHOO), and scores of other tech and Web companies that depend on fair use, released a study on Wednesday which claims that fair use of copyrighted works is "responsible" for more than $4.5 trillion in annual U.S. revenue -- about a third of gross domestic product. Compare the estimated $2.2 trillion in net revenue generated by fair use-dependent companies to the estimated $1.3 trillion contributed to the U.S. economy by copyright-dependent companies, and it's a no brainer which camp should be treated with kid gloves, the CCIA all but concludes. The CCIA goes on to claim that "fair use industries" are responsible for 18% of U.S. economic growth and almost 11 million American jobs. How can you argue with all that?
With a little clear-headed analysis. For starters, the CCIA study assumes that ALL gross or net revenues generated by the likes of Google and Microsoft, as well as by the myriad non-tech companies that benefit from fair use, would disappear if fair use were suddenly overturned or very narrowly interpreted. Divining just how much of the revenue of U.S. companies hinges on the copyright exceptions is an inexact exercise at best. (In the interests of open disclosure, InformationWeek and its parent company, CMP Media, benefit greatly from both copyright and fair use protections.)
According to the U.S. Copyright Office, fair use is based on four broad criteria: "the purpose and character" of the use (for nonprofit educational purposes vs. commercial ones); the "nature" of the copyrighted work; the "amount and substantiality of the portion used in relation to the copyrighted work as a whole"; and the effect of the work's use on the potential market for that work.
Of course, whether the reuse of copyrighted material is fair or illegal varies case by case. According to the CCIA report, the courts have established that fair use underpins software development, which "depends on making temporary copies to facilitate the programming of interoperability," and Web search engines. Less clear is whether it applies to movies, videos, and other copyrighted content distributed on third-party sites.
Read the rest of my argument on copyright, and leave your $0.02 at the InformationWeek Blog.
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