Q: What is the value of protecting fair use? There are some who would argue that stronger copyright law would enhance sales of music and CDs and would be better for the economy. Of course, there’s no trade group that really represents fair use rights.

A: That’s true because the people who depend upon fair use are typically not financial interests. It’s people in society. Fair use rights are fundamental to the exercise of First Amendment free speech rights. In the absence of a fair use doctrine, free speech would be significantly hindered. For example, everyday you use the fair use doctrine whether you realize it or not. If you quote a line from a poem in the course of your conversation, you are doing that without the permission of the author of that poem, but your right to do that is protected through the fair use doctrine.

If you could not do that, think how much speech would be restricted, because so much of what people say borrows from the ideas of others and often times it borrows from copyrighted material and it’s practically impossible to get the approval of the owner of that copyright before you speak. If you whistle a tune as you’re walking down the street, that is technically a public performance of that song. And if the copyright has not expired on that song, if it is not in the public domain in the absence of fair use you would be violating the copyright law. So everyone every day depends upon a vibrant fair use right in order to carry on the normal dialog of just living as a citizen.

Then there are more practical applications. For example, libraries depend upon the fair use right for their very survival. When a person goes to the library to perform research, that person may need to photocopy a page from a book when writing a term paper so the library makes available a photocopier just for that purpose. A copy technically under the copyright law is not permitted until you get the permission of the copyright owner.

But because it is being done for a limited non-commercial purpose for personal convenience, it falls within the protections of the fair use right. And the individual who is doing research for a term paper is permitted to make that temporary copy or that one copy of one page or two pages or whatever is required without having to get the consent of the copyright owner. So libraries will tell you that the fair use doctrine is fundamentally important to their operations.

The same is true of universities. In higher education people are always borrowing a concept that is copyrighted in order to make a point in class or to include a quote in instructional materials. In the absence of the fair use doctrine that could not be permitted.

Let me just add too that consumers and society by the millions have now adopted the practice protected by the fair use right of making customized compact disks so that the disks contain exactly the songs they want to hear in the order in which they want to hear them from the music that they have lawfully acquired. A person can go to a music store, buy a CD and then rearrange that CD into an order in which he likes to hear it and add to that CD tracks from other CDs so that he has a customized compilation of music that is precisely the songs he wants to hear in the order in which he wants to hear them. That right is protected under the fair use statute. That right is at risk with the introduction of copy protected CDs

I’m just giving you a sampling of the application of the fair use law. But in each of those instances, protecting fair use is important to protecting the rights of ordinary Americans. Let me just add that in none of those instances is the copyright owner injured at all. In none of those fair use exercises is the copyright owner injured. As a matter of fact, the ability to make customized CDs in my opinion expands the market for music because people are much more interested in buying a CD if they know that they can take the three tracks from that CD they want to hear and add it to three tracks from another CD that they want to hear which they also buy for that purpose and create a customized CD.

In the absence of being able to do that, people are going to be a lot less willing to buy CDs. That’s going to be the result. So I would strongly make the point that the proper exercise of fair use rights is not against the commercial interests of copyright owners.

Q: Would you care to speculate as to why the technical community has been so ineffective in making their case?

A: I don’t think they’ve been ineffective. Let me just say that until the arrival of the digital era, sometime in the 1990s when digital media became commonly commercially available, the debate over fair use rights versus copyright owner rights resided in a kind of a backwater of Congressional activity. This was not a hot button issue. There really weren’t any major controversies; everyone essentially had acknowledged the need to have a balance between copyright owner rights and user rights and the subject just wasn’t spoken about very much.

All during that period however, the creative community, the Motion Picture Association and the Recording Industry Association of American were developing very close ties with the member of Congress who were involved in intellectual property laws. That community has always had a close contact with the members of Congress who develop these laws. That’s just a normal part of the political process. The technology community had never seen a particular need to establish those same relationships because there just weren’t any issues that really involved technology to any substantial extent that were current before the Congress.

Now I will say that every generation of new technology did create something of either a legislative or a legal flurry starting back with the player piano roll. When that was first introduced a hundred years ago, people who owned copyrighted interest in music tried to have it declared unlawful. Congress resolved the debate by creating a compulsory license to allow player piano rolls to be manufactured and each time one was manufactured and sold a blanket license fee was paid to the owners of copyrighted [songs].

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When the VCR was introduced, Universal Studios attempted to have it declared unlawful as a product that contributed to copyright infringement. The Supreme Court held in the 1980’s--I can’t recall the precise year, 1984 I think--that because the device had both non-infringing and infringing uses, it was legitimate technology. In other words, the Court held that you would not punish the manufacturer of burglar tools that could be used for legitimate purposes but of course, the burglar who decides to use the tools for illegitimate purposes could be punished. A very important doctrine was announced in that case--technology that has substantial non-infringing uses is legitimate even if it has infringing uses. That is a principle that we can well remember today.

In each of these instances, there has been something of a flurry of legislative activity or legal activity surrounding the introduction of new technology, but always resolved without a great deal of difficulty. We’re in a different climate now. We’re in a climate where the arrival of two technologies simultaneously, digital media and the Internet has created what I think will be a sustained level of Congressional and legal activity over a much longer period of time. The result of that is that you now see the content community doing what its always done and that is striving to protect its interests and now you see a group of people on the other side of the equation. People who are defending user rights becoming organized as well.

Q: Is there some level of technical education that needs to be brought to the members of Congress or do you feel that everybody is pretty much up to speed with what the implications of the various bills are?

A: Oh, I don’t think everybody is up to speed at all. As a matter of fact, I’m one of the co-founders of the Internet caucus and I co-founded the caucus in 1996 along with Congressman Rick White. It’s now, by the way, the largest caucus and the most active caucus in the Congress and our purpose is to make sure that members of Congress and their staffs have ample information about the various information technology policy challenges that relate to the Internet that are being considered by the Congress.

We don’t take positions pro or con during the Internet caucus sessions; we simply present information on both sides and let people draw their own conclusions. But our goal is to make sure that members do have ample information upon which to base reasoned and knowledgeable judgments. So we have a mechanism for imparting information to those who want it. But are members of Congress generally attuned to copyright issues? No. Are the members of the committees that have primary responsibility for these issues more attuned? The answer is yes but that is not uncommon, that’s the way it is with a lot of issues considered here.

I think that even though what I've said is true, it’s important to continue to provide more information, and I think those of us who are defending user rights and fair use rights have a particular challenge in that members are sometimes being acquainted with these legal doctrines for the first time. They have a deeper knowledge of the copyright community’s interest, I think we now have to acquaint them with a countervailing set of values and the interests of those who need to have fair use rights for copyrighted material.