Fair is fair... or is it?

The Sony Betamax Supreme Court decision was one of the most important "fair use" decisions of the last 25 years, but it's been a constant source of frustration for Marybeth Peters, the Register of Copyrights in the US since 1994. As head of the Copyright Office, Peters is in charge of the triennial DMCA anticircumvention review process. And every three years, her office sees the Sony case used as the basis for the most popular requested exemption: DVD ripping.



Marybeth Peters

Each time the Copyright Office deals with the issue, consumer groups contend that fair use rights to use the material on DVDs are being violated by access controls, and they want an exemption in order to back up discs or to use video clips in noninfringing ways. After all, didn't the Sony case put an official blessing on all recording equipment that had substantial noninfringing uses? Doesn't this mean that consumers have a right to use DVD rippers and that an anticircumvention exception should therefore be made for all DVDs? The EFF certainly thought so, arguing as much at the first triennial rulemaking back in 2000.

But when I spoke with Peters about fair use, she pointed out that the Sony decision is in fact a narrow one and that fair use itself is often ambiguous unless defined by a judge. The Court's ruling in the Sony case was limited to "free, over-the-air television for time-shifting," she tells Ars. "It is not space-shifting; it's not anything beyond that. It's not off cable, it's not off video-on-demand, and yet if you talk to most consumers, they think that anything they do in the home that comes through their television set is fair use."

"That becomes a consumer expectation that you hear about that they want enabled," she continues, "and I don't disagree with that; that's what the market is demanding, and that's what the market should provide, but don't call it fair use."

"I don't want to say it's a crapshoot"

Her comment points out that fair use in the US can be a vague concept. Section 107 of the Copyright Act allows for the fair use of material "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" but speaks in broad terms rather than specific instances. Fair use can extend beyond these listed purposes (note the "such as" statement in the law), but to qualify as "fair," a use has to pass the famous four-part test, which considers the following factors:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

The nature of the copyrighted work;

The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

The effect of the use upon the potential market for or value of the copyrighted work.

What this means in practice is that people cannot know if something is fair use without testing their theory in front of a judge. This has happened on plenty of occasions—like the Sony/Universal case that opened the door to legal VHS recordings from TV broadcasts—but these rulings are generally quite narrow, applying only to the specific circumstances of the case. "Once a court has actually handed down a decision with regard to specific facts," Peters says, "if you fall within those facts, you're safe, but once you start wandering away from those facts then—I don't want to say it's a crapshoot—but it's not clear."

In the minds of many Americans, though, "fair use" means a whole host of things that are not contained in the Copyright Act or outlined in a judicial decision. As Peters puts it, "'fair use' has become a shortcut for what 'I think the balance should be as I look at the copyright law.'"

Take DVD ripping as an example. As noted above, it's an issue that Peters hears about without fail every three years as users seek a DMCA exemption to the anticircumvention protections that extend to DVDs. Why has the Copyright Office rejected the proposed exemption at each triennial rulemaking to date? In her words, it's because the widely-hacked CSS encryption on DVDs does not actually prevent fair use at all, and those who think otherwise don't understand exactly what rights fair use grants them.