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Fair Use?

NMC/Radio and Records eChart main column as published in the 8/30/02 issue of R&R It seems as though every time a defender of our right to share files on the Internet runs through the litany of reasons why the government/media giants/mean old labels want to limit our choices, the phrase "fair use" comes up. To hear some promoters of file piracy sites talk, "fair use" is all about the people being able to access what the horrid copyright owners want to completely control. That's not fair.

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Take a look at the four tests that are implicit in Section 107, Title 17 of the US Code that is so freely tossed about, sometimes by people who should know better. Once you understand that although fair use is something that is still left up to the courts to interpret, it's not nearly as hard to understand as it appears.

From the code:

...In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

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

(2) the nature of the copyrighted work;

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

(4) the effect of the use upon the potential market for or value of the copyrighted work.

In the case of (1), the law is promoting the reference and use of pieces of the work in research, criticism, news stories, and the like. The law is decidedly not promoting the opposite: commercial exploitation or the replacement of a potential sale of the original.

It is with (3) and (4) that every single instance of piracy masquerading as "sharing" fails. "Sharing" an entire musical work, as opposed to a clip of it, is not fair use. You want to let someone know how much you like that new Eminem cut? Fair use means sharing 30 seconds or so of it, more along the lines of a callout hook, not the entire Track 7, ripped from The Eminem Show CD.

And "sharing" the entire single in a format (128k joint stereo MP3 or higher) that is good enough for most people to re-burn on CDs provides an excellent "sales replacement" on a mass basis. If CDs are truly unaffordable, as some vehemently argue (despite the fact that CD prices haven't changed in over 20 years, meaning with inflation, CDs are less expensive today than when they were introduced), then how does it follow that downloading 6,000 MP3 files will somehow alter the purchasing power of file sharers? It doesn't, but free MP3 files, put up en masse on the Internet, is a powerful competitor to CD's available at any price.

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