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Absolutist vs. Populist

NMC/Radio and Records eChart main column as published in the 12/14/01 issue of R&R So much of the discussion over whether the "sharing" of online files is covered under the Fair Use doctrine that is part and parcel of our Copyright Act. I had Robin Gross on recently, a lawyer for the Electronic Frontier Foundation, a group that is dedicated to preserving what they feel are the trampled rights of online users when it comes to free speech.

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I never quite understood why we so loudly disagreed on the Dmitri Sklyarov case and the Napster case and yet agreed wholeheartedly on the Edward Felten/SDMI case. Robin and I were in total agreement when it came to the abject disappointment we felt over a judge not ruling in Dr. Felten's favor. I stated that perhaps it was because Dr. Felten wasn't looking to commercialize his findings, but that almost every other case involves that. Gross responded that artists capitalize too much on their works without giving the public fair use.

And then it struck me: while she was describing what she felt was a major imbalance between what the nasty old label controlled artists thought was their right, husbanding their works and how they are heard and played and owned by the public, it was clear that Gross and others who want individual songs to be able to be shared among the public under Fair Use are copyright "populists." Copyright populists want the public to have unfettered access to the artists' works, the artists' well being be damned.

Copyright "absolutists," like me, argue that an artist's rights are supreme to the public's, that only an artist should be able to control his or her or their works, and decide to allow the public to see or hear those works when they choose, in the forum and format they choose, and at the price they want to charge, when they are damn good and ready. We see this all the time in limited releases of songs, movies and books, and controlling the flow of that art can increase its value to the public. That's all heresy to the copyright populists, who don't want to be manipulated by artists and are willing to go to court to fight for a swing in the other direction.

If one assumes that the copyright populists manage to convince the Supreme Court to forever tilt the copyright balance more in favor of the public, then what is to stop the crackers in the world from hacking the rights-managed files they find online with not only glee, but with legal standing? What economic incentive will be left for the labels in the new year and years to come to even have an online service if the music can be lifted under fair use?

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