The Move to Counter the Move to Counter Fair Use

“Fair use” has two meanings. In its colloquial guise, most people who buy books, CDs, DVDs, software, or consumer goods think that it is only “fair” for them to be able to use their purchases however they choose, and that it would be “unfair” for the manufacturer to prohibit noncommercial use. In its technical guise, fair use is a copyright law doctrine that mirrors the colloquial conception quite imperfectly. As technology enables consumers to engage in new and exciting activities with the information products that they purchase, the intuitive colloquial notion of “fair use” expands — increasingly often in ways that appear to contradict the copyright laws. Congress responded to this expansion in the Digital Millennium Copyright Act of 1998 (DMCA). The DMCA explicitly prohibits “circumvention,” or the disabling of a technological solution that a copyright owner put in place to “control access” to the copyrighted product. The DMCA also reopened the discussion of numerous issues related to third-party liability for copyright infringement. Both of these issues have proved critical in the recent battles among copyright holders, technologists, and the public.