More on Real’s Store, and Free Use v. Fair Use

DRM Watch is more suspicious
of Real Player 10’s interoperability with iTunes songs, asserting that
it might violate the DMCA.  I still don’t understand the mechanics
of it precisely (see previous post and article) – I’ll try to find more out later.

Brad Hill now has his review up. Not quite a ringing endorsement: “RealPlayer10
Music Store is a heinous experiment in proprietary formatting that,
even if it worked as advertised, would harshly constrain consumer
value. Once again, RealNetworks is taking money for (or through)
a broken beta program.”

Only slightly related: Here’s a line from the DRM Watch article that
exemplifies how twisted the concept of fair use has become: “No one would argue that
this [playing an iTunes Store song in Real Player] is unacceptable
behavior or not ‘fair use.'”  For fair use to enter the picture,
you have to implicate a right of the copyright holder.  What right
does playing a song implicate?  Yes, you’re copying the song into
RAM, but that’s true whether you use Real Player or iTunes. 
Playing a song in a player of your choice hasn’t been – and, I’d say, shouldn’t
be – a copyright issue.

This is a point I’ve talked about before,
and one that Professor Lessig stressed during his iLaw talk last
year.  To put it in his terms: forget fair use; what happened to
“free use”, use that copyright doesn’t touch in the least? Today copyright holders have a right of access,
a right to use, because of the DMCA.  Not only does that set aside
the fair uses we have, but it also eliminates many of the free uses.

In most discussions, though, fair use takes center stage.  Fair
use is now the umbrella term for all uses that are not
infringement.  And thus all uses are seemingly treated as
conditional, riding on a case-by-case balancing test or copyright
holder authorization.  But there used to be this other zone of copyright too.

To some extent, this is all just semantics – people who say “we need to
protect fair use” often mean that we should move more fair uses into
the category of free uses, perhaps by legislating clear, affirmative consumer rights
That’s all well and good, but it’s worth remembering that having this grey
area of fair use is also good.  We need a balancing test, too, to deal with evolving uses.  So, I think, both conceptually and legally, it’s worth retaining this separation of fair use and free use.