A Hidden Threat to Online Freedom: The Lost Balance of Fair Use and Intellectual Property

The current imbalance of our intellectual property system allows copyright law to strangle free speech and innovation. Ideally, the intellectual property system would strike a balance between the rights of the intellectual owner and those of consumer. Intended to support the property’s creator, copyright laws can promote fair compensation and allow for the continued creation of content. At the same time, intellectual property systems are designed so that after the creator is paid after the work enters the public domain and aids in the creation of new works. This balanced is threatened by the misuse and misunderstanding of the roles of copyright and fair use.

While content creators are an important beneficiary of intellectual property, the consumer is an equally (if not more) important consideration. In an effort to protect the consumer, restrictions are used to stop the IP owner’s expansion of power. Fair use and licenses of use are two important components of the intellectual property balancing act.

Trademark law requires a similar balance. Trademarks operate a bit differently than copyrights and patents. They benefit sellers of goods and services by allowing them to maintain their brand while also protecting consumers by ensuring that they know what they are buying. Much like IP’s balance between owner and consumer rights, with trademark law, a balance should exist between the marketplace and the consumer. Trademarks and intellectual property have the same end goals of ensuring fairness while fostering innovation. Both systems, when they work, are engines for creativity.

The terminology used in conversations surrounding intellectual property law is a bit complex. Thanks to the courts, the media, and superstar artists, there is particularly a great deal of confusion surrounding the doctrine of fair use. Fair use was not designed for the sole purpose of declaring exemptions from intellectual property laws. Fair use is an articulation of how copyright law can and cannot be used. By expressing these boundaries and preventing copyright owner overreach, fair use is a critically important part of a balanced intellectual property system.

A license of use can operate independently of actual ownership. Underscoring the absurdity that often results from these distinctions, FreedomWork’s Dr. Wayne Brough pointed out John Deere’s comment to the Copyright Office, which stated that farmers that farmers do not own their tractors; rather, they simply have “an implied license for the life of the vehicle to operate the vehicle.”

Unfortunately, the system of intellectual property has been thrown out of balance by increasingly frequent cries of “infringement.” These unproven (and often unfounded) allegations are enough to kill a startup, shut down a website, derail a patent application, take down an internet video, and the development of a new product.

As the Electronic Frontier Foundation (EFF) has explained, intellectual property owners use allegations of infringement as a sort of veto. It is a veto on the less powerful content creators and product developers who abandon their efforts when threatened with a lawsuit that could result in years of expensive and progress-stopping litigation. Through these threats, infringement cries can also veto the creation of the most innovative startups and biggest technological advancement. In effect, the “infringement veto” is a veto on new technology and the free market.

“Crying wolf” by crying “infringement” has a chilling effect on creativity, free speech, and innovation. Perhaps infringement accusers need to be told that they can’t cry wolf because somebody has already done that. Otherwise, intellectual property owners will need to realize that infringement threats are ill-suited for the digital age.

FreedomWorks’ Digital Bill of Rights would help restore the balance between content owners and those of us trying to create new products and spread new ideas. A Digital Bill of Rights would preserve the right to freedom of expression online and allowing for the existence of a robust public domain to foster creativity and innovation.

A Digital Bill of Rights would not only extend to the online world our protections established by the Constitution, it would also extend the freedoms of creation and expression that we enjoyed in years past into the digital era. The full text of FreedomWorks’ Digital Bill of Rights can be found here.