Floating in the air of last week’s Internet & Society 2007 conference was the whiff of a grand bargain between universities and the content industry: publishers give clear and broad fair use clearance (“transformative use”), and universities help publishers crack down on piracy (“consumptive use”). If such a bargain is truly in the works, it presents to me a Necker-cubish appearance.
From one perspective, universities would be agreeing to help the RIAA and MPAA reap profits in exchange for something to which they already have every right — fair use of copyrighted works for educational purposes. Looked at this way, the publishing industry is holding education hostage and asking for file-swapping royalties as ransom.
From another perspective, both parties are simply asking for logistical help. Universities want a copyright/fair use “clearinghouse.” Publishers want help tracking down individuals who swap files illegally. The issue of abstract rights (right to fair use, right to profit from copyright) is secondary to the practical ability to enjoy those rights.
Either way you look at it, the two parties (broadly speaking) are engaged in a negotiation, and universities can do quite a bit to strengthen their hand. Perhaps the easiest and most important thing they could do is to establish a legal defense fund and begin pushing back the boundaries of fair use, which are shrinking because of general counsels’ risk aversion. An insurance policy would balance that risk aversion and put the initiative back into universities’ hands to define fair use by their own interests.
