Comments on: Easterbrook on Fair Use

By: Fred von Lohmann

Fred von Lohmann — Wed, 14 Dec 2005 20:08:45 +0000

And doesn’t Easterbrook’s focus on the fact that she kept the tracks after sampling them strike anyone else as bizarre in the context of his discussion of substitution? After all, isn’t the relevant question whether she continued to play the tracks?

Seems to me that if you keep the tracks, but then never play them after the initial couple of times, that is empirical evidence that it is not a substitution. Plays, of course, can be measured by forensically examining the computer (or just looking in iTunes, which keep track of plays). In other words, in a digital age, using possession as a proxy for use seems pretty wrong-headed, especially when we can now measure actual use.

By: MT

MT — Mon, 12 Dec 2005 19:43:20 +0000

Actually I guess Eaterbrook isn’t assuming the CD thief ought to know but rather analogizing and asking us to admit we wouldn’t allow CD’s to be taken and paid for later and so we ought to make that the rule for CD information as well. It’s not a true analogy though. Copying information doesn’t deplete inventory and a priori it isn’t any easier to do without being held accountable.

By: MT

MT — Mon, 12 Dec 2005 19:19:07 +0000

If you don’t fence your yard and put up a “no solicitors” sign, a solicitor doesn’t tresspass in coming to your door. That’s partly from respect for commerce, and if Gonzalez was trying before buying she was engaged in commerce too. This idea of the “thief” who takes from the CD with intent to pay later I think implicit assumes the actor “ought to know” he or she is thieving (Tarzan wouldn’t know and wouldn’t be jailed). But file sharing is a new behavior, so Gonzales can’t be expect to have known and (as said above about “fair use”) it’s up to the courts to rule what’s to be known and what future people ought.

By: Brett Frischmann

Brett Frischmann — Mon, 12 Dec 2005 18:02:03 +0000

Mike,

I wrote a much longer comment, but it was lost in the post process. So I am going to be much shorter this time. Great post, you are absolutely right that you can argue with the economics and logic. Good points. I would just add that while I agree with the outcome on the specific facts, what jumps out at me is the broad sweeping points Easterbrook makes about copyright and fair use. E.g.,

“With all of these means available to consumers who want to choose where to spend their money, downloading full copies of copyrighted material without compensation to authors cannot be deemed “fair use.”

This seems overly broad (and Demsetzian) to me. That there are many licensed means available, does not necessarily make unlicensed means unfair.

“Copyright law lets authors make their own decisions
about how best to promote their works; copiers such as
Gonzalez cannot ask courts (and juries) to second-guess the
market and call wholesale copying “fair use” if they think
that authors err in understanding their own economic
interests or that Congress erred in granting authors the
rights in the copyright statute.”

This is just confused. Copiers can ask courts (and juries) to second-guess the market and call wholesale copying “fair use.” That is the point. Wholesale copying is not per se infringement. Depending on the context, it can be fair use.

Copiers, including Gonzalez, are not claiming “authors err in understanding their own economic interests;” whether or not authors understand their economic interests is completely irrelevant to fair use. Moreover, when copiers argue for fair use, they are not claiming “Congress erred in granting authors the rights in the copyright statute.” They are simply arguing about the express limitations Congress put on those rights.

Easterbrook’s reasoning reflects his view of copyright as just another form of property and of fair use as a very narrow limitation that shrinks as new markets and technology emerge to facilitate authorial control. Very Demsetzian, and as Mike notes, with ProCD-like potential to shape copyright’s future.