Fair Use Drives Free Speech and the Economy

According to a recent study by the Computer & Communications Industry Association (CIAA) , the fair use doctrine in copyright law not only facilitates criticism, news reporting, teaching, scholarship and research, but fair use-related industries add $2.2 trillion dollars to the United States economy each year in the process.

While some corporations see fair use as a thorn in the side, suing on everything from reverse engineering of software (Sony v. Connectix) to linking thumbnail images in internet searches (Perfect 10 v. Amazon.com), and stress the economic importance of strong copyright protection , it makes sense that fair use pumps significant funds into the economy.

Without fair use, our knowledge based economy simply could not function as it does. For example, fair use permits search engines, like Google, to provide a vast array of information without infringing. So absent fair use, the search engines we use each day to access information would not be able to run.

If fair use didn't exist, it would be illegal to replay a copyrighted television show on a VCR or through services like TIVO (Sony v. Universal City Studios) and newspapers and magazines could not include quotes from books in their reviews.

Indeed, it would be hard to imagine a world without fair use. Fair use enables major recording artists, like the Beastie Boys, to sample from earlier works (Diamond v. Newton) and comedy shows like "Saturday Night Live" and "The Daily Show"to create and broadcast parodies.

Radio and television broadcasting, data hosting, audio and video manufacturing equipment, search engines and many other industries depend on various forms of fair use for product development and innovation. So while copyright has long been recognized as an economic force, limitations to copyright, such as fair use, also serve as an engine for growth.

Fair use plays an expanding role in the digital economy, as "an important foundation of the Internet economy" which permits "a range of activities that are critical to many high technology businesses." According to the CIAA's study, the strongest growth in fair use related industries occurred in electronic shopping, audio and video equipment and Internet publishing and broadcasting. In 2006 alone, fair use related industries accounted for 16.6 percent of the total U.S. GDP. In addition, fair use related industries are responsible for the creation of new products (like the iPod), new businesses, and jobs (one of every eight workers is employed in a fair use related industry).

Recognizing the important role that fair use plays in promoting and safeguarding free speech rights, the ACLU has long defended fair use in diverse contexts.

When Harvard researcher, Ben Edelman, sought to circumvent software blocking programs to study their free speech implications, the ACLU defended his actions as fair use.

In the groundbreaking Napster litigation, the ACLU voiced concerns that a restriction on filesharing had the potential to suppress a variety of protected and non-infringing online speech and urged that "efforts to protect intellectual property rights in the digital environment must preserve a robust fair use privilege."

And more recently, the ACLU of Northern California has advocated on behalf of individuals whose online parodies and political speech have been threatened with take down for alleged copyright infringement. See our work with blogger, Justin Watt, and YouTube user, Allen Asch.