Just How Fair Is The Fair Use Campaign?

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, Microsoft, Yahoo, 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 revenue 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.

The CCIA's aim is simply to make sure lawmakers understand that copyright legislation requires "balance," especially when "there's an important chunk of the economy that's impacted," says association president Ed Black. Fair enough. But that doesn't argue for open season on copyrighted works, either. We wouldn't let financial services companies use pirated software if it were determined that the U.S. financial industry contributes more to the U.S. economy than the software industry does.

The release of the CCIA report came a day before pop star Prince said he plans to sue Google-owned YouTube and other Web sites for unauthorized distribution of his music. In a statement, he said YouTube is "clearly able to filter porn and pedophile material but appears to choose not to filter out the unauthorized music and film content which is core to their business success."

As much as it pains me to say it, Prince has a strong point, as does George P. Riddick, chairman of graphics company Imageline, who argues: "This is not a battle between an ultra rich 'copyright' minority and the 'creative' masses who are all homeless and starving. …Fact is, we have had to lay off dozens of very hard working, creative, and dedicated people due to flagrant Internet piracy over the years."