Technically, it’s not. At least, there is no section in the 1976 or the 1990 statute codifying exactly what is and what is not “fair use.” The way I currently understand it, fair use is only a defense to a claim of infringement- so it doesn’t come up until someone has already been accused of infringement.
So, when a guy who works for a copyright cartel writes an editorial to assert that people shouldn’t expect to be able to make fair use of a product that one of the member companies is selling, nobody should be surprised. When you start with the conclusion you want to reach and then reason backwards from it, it’s pretty hard to have the answer come out any other way. But the problems with rationalizing a decision rather than reasoning forward from facts to a conclusion is that you often find yourself making crazy assertions. Like this one:
There is no question that in the Digital Age, consumers need a better understanding of both the rights of creators as well as the limits on those rights through fair use.
Aside from its poorly structured grammar (fair use does not limit unlicensed use; fair use is a doctrine which allows unlicensed use where it would normally be prohibited), that statement is preposterous. You don’t need to know how to make a DVD player, or even use a DVD burner, in order to watch a DVD. You don’t need to study music theory to make a song with GarageBand. And you shouldn’t need a law degree to to copy and paste stuff off the internet.
I think that copyright in the digital age is an area where real life has simply outpaced the law, and that it is much much much more likely that the law will be gradually (or maybe even precipitously) changed to mirror people’s real-life expectations than it is likely that the law as it stood in 1976 will be enforced against the current generation of Americans.
The article linked above was written to appeal to the unwashed masses. He talks about Barry Bonds. But what he has obviously failed to understand is that the unwashed masses are the very people his organization is attacking. And whether or not he likes it, we will make fair use of any media we acquire, whether or not the courts or the government agree that such use is legal. And as you might expect, the folks at /. aren’t real happy about the article either– they’ve accepted that you can’t get something for nothing, but they are willing to take the discussion back where it belongs: the only reason that copyright exists is for the public benefit. If copyright owners want to destroy that benefit, some members of the public are clearly prepared to void the protections upon which their business is founded. One of my favorite comments:
Fine, let them win. Okay, fair use is not a consumer right!
And copyright protection is not a producer right either.