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Fair use protects so much more than many realize

FBI anti-piracy warning text, to be displayed on digital and software intellectual property, is unveiled at a press conference in Los Angeles, California, 19 February 2004
FBI anti-piracy warning text, to be displayed on digital and software intellectual property, is unveiled at a press conference in Los Angeles, California, 19 February 2004

David McNew/Getty Images

This statement was originally published on eff.org on 2 March 2018.

With copyright being abused to shut down innovation and speech, and copyright terms lasting for generations, fair use is more important than ever. Without fair use, we'd see less creativity. We'd see less news reporting and commentary. And we'd see far less innovation.

Fair use allows people to use copyrighted materials for certain purposes without payment or permission. If something is fair use, it is not infringing on a copyright.

A video remix or a story that critiques culture by incorporating famous characters and giving them new meaning or context is an example of fair use in action. Culture grows because creators are constantly reworking what's in it. If Superman is portrayed as someone other than a white man, that is a clearly a commentary on the symbol of "truth, justice, and the American way."

Commentary also relies on fair use. Criticism is made stronger when the material being interrogated can be included in the critique. It is difficult to show why someone was wrong or add context to someone else's report without including at least part of it. We recently wrote about the Second Circuit's decision that part of the service offered by TVEyes, a subscription company that provides searchable transcripts and video archives of television and radio, was not fair use. In particular, the court seemed to say that what makes TVEyes so objectionable was that it made material available without Fox News' permission. One of the reasons fair use is so important to the First Amendment is because it doesn't require permission. Who would let researchers, academics, and journalists get access to their material for the purpose of saying if and how they're wrong?

The ways fair use improves our creative culture and our commentary are apparent every time we see fan art on the Internet or watch news commentary. The ways fair use protects innovation can be more subtle.

Copyright also covers software, which is working its way into every part of our life. We're entering a world where your lights, toothbrush, coffeemaker, and television are all connected to the Internet. And transmitting all sorts of information all the time. But if you want to ask an expert how to change that, you're probably going to need fair use.

Much of the problem lies with Section 1201 of the Digital Millennium Copyright Act, which bans breaking restrictions on copyrighted works. That means, for example, that if someone wants to develop an app that better secures your phone but doing so means breaking the digital lock the manufacturer put there, then that inventor faces trouble. Or, say you want to pay a mechanic to fix your car, but that requires them to break the encryption on the computer in it, then Section 1201 would prevent you from getting that help.

Section 1201 can prevent access to things that fair use allows people to use. For example, you may want to make fair use of a clip from a DVD but be banned from breaking a lock to rip the clip. And because of the impact that could have on fair use, there is a process for securing an exemption to it. The exemption process occurs every three years, and we'll get a new set of exemption in 2018.

Because fair use is important for creativity, commentary, and innovation, and because the ban on circumvention makes that so much harder, convincing the Copyright Office to issue common-sense exemptions is necessary. In 2018, EFF is asking for exemptions for:

- Repair, diagnosis, and tinkering with any software-enabled device, including "Internet of Things" devices, appliances, computers, peripherals, toys, vehicle, and environmental automation systems;
- Jailbreaking personal computing devices, including smartphones, tablets, smartwatches, and personal assistant devices like the Amazon Echo and the forthcoming Apple HomePod;
- Using excerpts from video discs or streaming video for criticism or commentary, without the narrow limitations on users (noncommercial vidders, documentary filmmakers, certain students) that the Copyright Office now imposes;
- Security research on software of all kinds, which can be found in consumer electronics, medical devices, vehicles, and more;
- Lawful uses of video encrypted using High-bandwidth Digital Content Protection (HDCP, which is applied to content sent over the HDMI cables used by home video equipment).

It would be even better if hoops like this didn't exist for fair use to jump through, but while they do, it's important to keep showing how important it is.

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

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