Fair Use is Not a Right

[Note - this is an archived version of the original posting from 10:40 PM EDT, Apr 24 2003]

Here is a copy of a posting I made last year to the cypherpunks mailing list. It challenges claims made by some that DRM is evil because, among other things, it can take away "fair use" rights. This is an argument from a libertarian perspective that DRM is a perfectly fair type of contract even when it offers no exceptions for "fair use".

Suppose you know someone who has been working for years on a novel. But he lacks confidence in his work and he's never shown it to anyone. Finally you persuade him to let you look at a copy of his manuscript, but he makes you promise not to show any of it to anyone else.

Hopefully it is clear in this situation that no one is doing anything "evil". Even though he is giving you the document with conditions beyond those specified in the current regime of copyright, he is not taking advantage of you. Even though you hold the bits to his manuscript and he has put limitations on what you can do with them, he is not coercing you. You voluntarily accepted those conditions as part of the agreement under which you received the document.

It should also be clear that it would be ethically wrong for you to take the manuscript and show it to other people. Even if you take an excerpt, as allowed under "fair use" exemptions to copyright protection, and include it in a document for commentary or review purposes, that would be a violation of your promise. This example demonstrates that when two people reach a mutual agreement about how they will handle some information, they are ethically bound by it even beyond the regulations of copyright law.

And surely it is clear that no decisions by Congress or any other legislative or judicial body can change the ethics of this situation. In fact, it is absurd to look to Congress for guidelines on ethics! Surely everyone reading is aware that it is one of the least ethical bodies in existence. Those who look to Congress to justify breaking their promises are not looking for ethics, they are looking for excuses. Congress excels at providing those.

The point is that this situation is exactly analogous to what might happen if you purchased a song or other information content by downloading, and restrictions were placed on how you could handle it as a condition of that purchase. One of the restrictions might be that you can make no more than 2 copies of the song for personal use. Another restriction might be that if you give a copy to someone else, you have to delete your copy.

Such restrictions cannot be evil, any more than was the even more strict restriction imposed on the recipient in the book example above. Evil only exists when someone is forced to do something they don't want to. Offering a song or a book with conditions does not force anyone to do anything, because the offer can always be refused. There can be no evil in making someone an offer, even an unacceptably restricted one.

In fact, making or accepting any kind of offer, with any restrictions which the parties choose, is a fundamental freedom which everyone reading this should fight to support. To say that people can only make or accept offers which some third party deems acceptable is a coercive infringement on people's liberty to make their own decisions and to control their lives. It is despotism of the worst sort. Third parties have no right to interfere in the agreements which others make.