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The farce behind 'Digital Freedom'

perspective RIAA President Cary Sherman says the fair use doctrine is in danger of being twisted beyond its framers' original intentions.

perspective Last month, the Consumer Electronics Association and other groups announced a "Digital Freedom" campaign that latches onto the concept of fair use--supposedly to benefit consumers.

Seems like a worthwhile effort. But in truth, it's merely a return to an increasingly used playbook, an extremist interpretation of fair use to frighten and mislead consumers and policymakers.

Like a trademark that becomes generic, the fair use doctrine is in danger of losing its meaning and value if CEA's self-serving claims are taken at face value. CEA has twisted and contorted "fair use" beyond its true intent, turning it into a free pass for those who simply don't want to pay for creative works.

Critics like CEA sometimes lose sight of the fact that record labels and other copyright owners are as dependent on fair use as consumers.

So what is fair use, really? It's codified in section 107 of the Copyright Act, intended primarily to promote such uses as criticism, comment, news reporting, teaching, scholarship or research. The determination is further guided by four factors--including purpose of use, the type of work, the amount used, and the effect on the market for or value of the work--which must be balanced to establish whether a particular use is "fair." It is not an all-purpose excuse to make use of someone else's property for free. And it is certainly not an excuse to boost the sales of electronic devices and services on the backs of hard-working creators.

Fair use is an undeniably important plank of copyright law. Critics like CEA sometimes lose sight of the fact that record labels and other copyright owners are as dependent on fair use as consumers. A healthy and robust fair use doctrine is critical to us, since so much of what we create is built on the art that came before.

The "Digital Freedom" proponents have consistently staked their case out of the mainstream. 's comment that unauthorized downloading is neither "illegal nor immoral" is illustrative of the extremist position of that group, especially given the U.S. Supreme Court's opinion otherwise in its 2005 Grokster ruling.

The CEA was on the wrong side of that unanimous decision, supporting illegal file-sharing network Grokster while Justice Breyer, one of the court's most tech-savvy judges, declared that the activity on Grokster's system was "garden-variety theft." In fact, every court has refused to accept the argument that such activity is fair use. Yet the fair use revisionists keep trying, relying on grandiose notions of the doctrine that have no basis in law and reflect bad public policy.

Fair use is, fundamentally, a balancing of interests. All interests. Fairness requires us to look in all directions and to hear from all sides. The thousands of people who work in our industry--from songwriters, to musicians, to artists, to producers, to engineers, to promoters, to label employees--deserve that consideration.

Let's be clear. The CEA's primary concern is not consumers, but technology companies--often large, multinational corporations which, like us, strive to make a profit. A moneymaking mission is perfectly acceptable. After all, it is this funding that enables progress in technology and opportunities for creativity. But to seize the mantra of "consumer rights" to advance that business interest is simply disingenuous. And to do it at the expense of creators' right to be compensated for their work is short-sighted.

Devices and technologies are only as good as the content they use. As the U.S. Chamber of Commerce noted: "The coalition led by the Consumers Electronics Association is pursuing a self-defeating strategy. Demolishing the rights of creative artists will hurt consumers and technology providers, not help them. Musicians, artists, filmmakers and others won't produce rich, diverse content if they don't believe their creations will be adequately protected from IP theft and other unfair, illegal uses. Without content, the market for technology designed to deliver it will dry up quickly."

The "Digital Freedom" campaign claims that the entertainment industry's goal is to "outlaw new digital technology and devices." This kind of knowingly false and incendiary rhetoric is designed to distort the issue and thwart solutions by demonizing us. The fact is, we are not only music fans, but technology fans, too. We celebrate advances in technology and recognize the importance of finding new ways to deliver content.

Instead of redefining fair use to promote a short-term free-for-all, let's embrace the existing concept to allow for long-term growth of technology, while valuing and protecting the content it carries. That benefits us all.