When Does Fair Use Go Too Far?

January 18, 2011 -

When does fair use go too far? That's a hypothetical question ask by a columnist over at the New York Times, who, after snapping photos from several home decor magazines and books at Barnes & Noble for a home design project (using their iPhone), wondered if he might be breaking the law.

So he turned to several experts on the subject including Julie A. Ahrens, associate director of the Fair Use Project at the Stanford Law School; Stan Liebowitz, a professor of economics at the University of Texas at Dallas and the director of its Center for the Analysis of Property Rights and Innovation; and Charles Nesson, the Weld professor of law at Harvard Law School and founder of the Berkman Center for Internet and Society. Their answers varied.

"The core issue here is that you are creating a copy of something rather than buying it," said Ahrens. "Is it morally incorrect? Maybe. But it entirely depends how much of the book you copy, and what you do with that copy, that would determine if it was illegal."

Stan Liebowitz, who spent years "investigating the economic impact of the Xerox machine on the publishing industry," said that copying books was more akin to music piracy: "When you’re talking about people making copies of things with their cellphones, it’s much closer to people making MP3s than people using Xerox copies of books. In the 1970s, everyone didn’t have a photocopier sitting in their home. Now everyone has a cellphone in their pocket that can easily copy anything."

Of course, no one ever copies a sample of an MP3, a movie, or a game.

Charles Nesson agreed that "documenting a book" bears similarities to pirating music: If people are taking a picture of a picture to take with them, then is it is exactly like the MP3 issue," he said. He adds that, for now, the question is unanswerable for now because the publishing industry doesn't go after individuals like the music industry has.

"I think the law and the draconian action of copyright holders will stay the way it is for a long time," said Nesson. "There’s change in the air, but it’s not a change that’s going to come very quickly."

Source: NYT


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