“Fair Use”

I’ve been considering “fair use” the last few days. For those unfamiliar with the term, “fair use” refers to the way in which content creators take existing media (eg video clips) to create new art. For example, Buffy v. Edward…

Copyright holders – particularly the big studios and record companies – object to such use. Yet as members of the digital culture continue to shift toward open source, content creation like this is being championed on a variety of fronts. Some organizations – like creative commons – exist to provide material to people for fair use, without the potential challenge from copyright holders.

I’ve straddled this particular debate for years. I’m not a fan or supporter of piracy – or thievery, as the RIAA now wants it to be known! – partly because of my belief that those who have created original content should be reimbursed for it, as they desire to be (so if someone wants their material distributed freely, that is one thing; but movies, music, etc. shouldn’t be passed around without some payment to the creator).

But I’ve also been increasingly frustrated with new and innovative DRM – digital rights management – being forced upon us and preventing what should be legal activities. Ever try to copy a DVD so your kids don’t keep snapping the original? The act of copying, if you can find a way, is illegal [breaking the Digital Media Copyright Act endorsed by our own Congress] because you have to “break” the DRM to do so; and yet, possessing the copy is not illegal!

When it comes to content creation, beyond the ubiquitous observation that “our culture is changing” and digital media allows for a great variety of artistic impression, I had a realization this week: Much of how I artistically express myself today is in part because of learning how to do so through “fair use.”

Consider, for example, my ability to write (however minimally I may do so!). I caught the “writing bug” while in 6th grade, when our teacher (Mr Clark!) assigned a creative writing assignment every week. Each Monday I began drafting a new short story, and would regularly read them aloud on Fridays. I freely “borrowed” concepts and characters from other authors, particularly Douglas Adams (I regularly interjected myself into standard Hitchhikers Guide to the Galaxy stories); though my own voice also began to emerge.

My unapologetic lifting of ideas from other authors is, in essence, similar to what new media content creators do when they mix music, movie, television, or other media sources into new creations.

I might also suggest that my ability to sing comes from “fair use.” Any talent or ability that I have today I owe to sitting next to and emulating Shaun Creighton, copying from him. Although I learned for myself, I also thought this week that perhaps this was a form of “fair use.”

Our ideas about copyright and plagiarism are all fairly modern (Shakespeare regularly lifted from Philip Marlowe, for example!), and are likely going to change in my lifetime. I think we’ll start to understand and accept “fair use” in the ways it is being championed for content creation in the cloud.


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