The Library of Congress added a number of ambitious new exceptions to the Digital Millenium Copyright Act's prohibition of breaking copyright technologies today, most notably concerning iPhone jailbreaking and unlocking. The Library adds and renews exceptions every 3 years and as Sarah Perez argued this morning, these ones go well beyond the iPhone.

I'd like to take this opportunity to celebrate "fair use," the general principle that copyrighted materials can legitimately be used by other parties, without payment, within reasonable limits. It's not just legally acceptable, it's a paradigm that could provide a foundation for a richer, fairer, better future for everyone.

The Library of Congress validated some key instances of fair use today, concerning DVDs, eBooks and mobile phones. Other instances remain legally unsupported. The general principal, though, is one that ought to be expanded in the interests of innovation, democratization and economic growth. Fair use is essential in a post-scarcity world, which is what the digital world is fast becoming.

What is Fair Use?

In determining whether an action constitutes fair use, four factors are taken into consideration by the legal decision makers, according to the Stanford University Library's explanation.


  • the purpose and character of your use - Are you adding value by adding new expression, meaning, new information, new aesthetics, new insights or understandings?

  • the nature of the copyrighted work - Factual information is more acceptable to copy than fiction, published info more than as yet unpublished info.

  • the amount and substantiality of the portion taken - Did you take a lot of what was copied, the heart of it? Unless you're doing parody, taking the heart of a work is not acceptable.

  • the effect of the use upon the potential market - Does your copying deprive the copyright owner of income? This was key to the iPhone ruling, as the Library said that people have to buy iPhones before they jailbreak them.

Why see those factors as criteria for permissible exceptions when they could be treated as a blueprint for a big new sector of economic activity?

For more in-depth discussion of how these four considerations played out in today's rulings in particular, see Ars Technica's coverage. More good analysis is available from the LA Times.

Note that as has been pointed out in comments below, today's news is far from an indication that an economy based on adding value to existing work. The limitations on commercial re-use of content under fair use, for example, are a major obstacle that remains. But it could and should be a start.

Why Fair Use Grows More Important Every Day

For most of history, the objects of economic transactions have been physical, expensive to produce and valuable because of their scarcity. While in many of the most important parts of the human experience that's still true, it's no longer true when it comes to culture and the communication of ideas.

A company certainly can spend a whole lot of money producing cultural artifacts and limit their availability in order to charge a high price. But that's no longer the only way that substantial value can be created.

Fair use is a lubricant for an explosive new type of economic and cultural activity. On this day when a few more high-profile holes have been made in the dam, let's get excited about what this paradigm means for the future.
From content remixes to APIs to lightweight social media creativity marathons like the recent Old Spice YouTube videos (see "How the Old Spice Videos Are Being Made"), a whole lot of value these days is created by mashing up content from disparate sources and adding a dollop of originality on top. It's cheap, it's fast and it can be very effective. The world needs more of it. Legal decisions, like today's, need to be made to facilitate more of it.

Further, what are the most potent engines of economic activity and creativity the web sees today? It's not the production of discrete items of value, it's the creation of development platforms. No one company can create as much value as a whole empowered ecosystem of distributed, independent developers working on a platform. Likewise, few developers can build as much value independent of a big platform as they can with one. A development platform is a foundation that commoditizes things like scale, basic infrastructure and distribution.

What if a company wants to keep control over its platform, limit developer access, etc.? According to the Library of Congress today, in the case of mobile phones at least, the consumer has every right to break that control in order to make software developed for the machine they purchased truly interoperable.

It's a value-added, remixed, platform-built economy these days. That's a whole new channel opening up for innovation, the democratization of the economy and for revenue creation. Does it cannibalize the old economy? Not if the experience of two of history's fastest-growing platform dynamos (iPhone and Facebook) are any indication. This digital economy could be called post-scarcity not because scarcity is no longer realistic or valuable, but because it's no longer a precondition for the creation of value. In fact, scarcity may produce less total value in the future than the ecosystem of augmentation, annotation, remixing and fair use of the items formerly considered scarce will.

When there is a legal safe zone for these types of value-adding economic activities, that could open up the floodgates to all the more of it. The people at Creative Commons say the benefit of clear conditions for re-use communicated ahead of time is that it facilitates far more re-use than would happen if people wanting to re-use content were slowed down by having to ask for permission each time. Something similar could be said about fair use.

Fair use is a lubricant for an explosive new type of economic and cultural activity. On this day when a few more high-profile holes have been made in the dam, let's get excited about what this paradigm means for the future.

Photo of DJ Future from Phil Campbell.