BUS YOUR OWN TRAY

Rupert Murdoch (via ericmortensen)

He might actually be serious.

Among overthinky legal types (i.e., law professors), there are many who argue that Fair Use only exists because it is occasionally difficult to make a socially-desirable use of someone else’s copyrighted material.  By “difficult,” I mean “burdened by transaction costs that make the whole license-getting process a real pain in the ass.”  And by “transaction costs,” I mean “lawyers.”

Example: a college professor wants to include a Wall Street Journal article in a hand-out.  By making a hundred copies of the article and passing them around class, he is committing copyright infringement.  However, the Fair Use Doctrine gives him a compelling defense, because we want our children to learn, etc.  The market failure theory argues that, no, it’s still copyright infringement, because there’s some actual market price the professor can and should pay for licensing the article.  Only thing is, the steps the professor needs to take to acquire such a license (the kaching of hiring a lawyer and the time spent negotiating the rights) make the cost of doing so like a thousand times higher than the license fee itself.  For an economist, this level of inefficiency is the moral equivalent of incest.  The social value of the infringement is higher than the icky waste of resources, and thus we consider such infringement to be “fair.”

Now it’s easy to see where this goes.  If transaction costs drop to zero, then there’s no reason to get all outraged and shit.  Enter the Internet, and rights clearinghouses, and micropayments — all things that cut down on the wasteful lawyer fees and allow a more perfect licensing market to develop.  If the actual cost to a professor to acquire a license to that Wall Street Journal article is $10, with no transaction costs, and the time it takes to acquire the license is the five minutes spent clicking on a few links and the PayPal, well, then ipso facto Q.E.D. thus and therefore there’s no need to justify copyright infringement.  Fair Use becomes unnecessary, economically speaking.

Ironically, much of what Google is doing to make it easier to buy shit is in fact eroding the Fair Use doctrine that they’ll likely try to hide behind when Murdoch lawyers up.

For those of you interested in boring yourself further, the seminal article on this is Wendy Gordon’s Fair Use as Market Failure, which is filled with hilarious references to Betamax tapes because it was written in 1982.