At issue in the twenty-first century is the trade-off between the necessity of writers, musicians, artists, and movie studios to profit from their work and the free flow of ideas for the public benefit. Movie (and music) industry participants claim that encryption programs are necessary to prevent piracy. Others, however, including the defendants in cases such as Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001), argue that the law should at least allow purchasers of movies, music, and books in digital form to make limited copies for fair use.
- Which side of this debate do you support?
- Is it possible to strike an appropriate balance between the rights of both groups on this issue?
From what I have read so far, the argument breaks down on two sides. Some believe that the artist or whoever owns the rights to the work has absolute rights over the work. The public can only view or use the work if s/he pays whatever the artist asks and the customer is willing to buy. This is a relatively easy argument to understand. The artist, some feel, should profit for the entire existence of the work. However, we know this is not really possible.
If someone writes a novel and it is purchased, can someone then give that novel away? The answer would be yes. So the second holder, or the next, or the next, may never have to pay for the object again. Likewise, if a person chose to resell the book, that would be their right, since they now possess it legally and it is their property. Further, if someone wanted to quote a passage and give accurate citation of the work they could also do that without having to pay for its use. This is the basis of the argument on the other side. How much copying or reproduction of a work constitutes fair-use?
Is it still fair use to make copies of a recently purchased DVD or mp3 file if you want to use it for yourself on multiple devices, or should you have to purchase the material over and over again? Should a person have to pay for the reproduction of them standing in front of the Mona Lisa they took on their iPhone? That would seem ridiculous, but that is essentially what we are taking about. Since the artist is theoretically only paying for the source material on which the art is inscribed, with the production costs built in, their claim for monetary damages is limited. What is the price of art, or a string of notes and singing, or a filmed, scripted play of professional actors? It’s very hard to tell sometimes. When you download an mp3 file, the artists incurs no extra cost if you copy it to another device. The artist, in my opinion should not be compensated for that copy unless it is being sold or presented for monetary compensation.
Fair-use implies copies made without charge. However, fair-use per individual should be limited. One individual could not make hundreds of copies and claim fair-use, whereas thousands of people sharing with a few of their friends could mean millions of dollars in potential revenue lost. I don’t agree though. This type of file sharing should be looked at for what it is, free promotion. In the digital age, file-sharing is the equivalent of coming over to a person’s house to listen to music. In the old days,” they used to call that word-of-mouth promotion.” Any advertiser should see this as an opportunity and embrace it. However, with record companies scrambling to justify their inflated salaries in an age of music sale decline, this issue was pushed to the forefront. The potential revenue lost to digital file sharing seemed enormous. Selling bootleg movies is another matter entirely because it involves profiting off of another’s work.
Miller/Hollowell, Business Law: Text and Exercises, 7th Ed., Cengage Learning, 2014