January 26, 2006
Fair use has always been a forward-looking doctrine. It was meant to leave room for new uses, not merely "customary historic uses." Sony was entitled to build the VCR first, and resolve the fair use questions in court later. This arrangement has worked well for all involved -- consumers, media moguls, and high technology companies.
Now the RIAA and MPAA want to betray that legacy by passing laws that will regulate new technologies in advance and freeze fair use forever. If it wasn't a "customary historic use," federal regulators will be empowered to ban the feature, prohibiting innovators from offering it. If the feature is banned, courts will never have an opportunity to pass on whether the activity is a fair use.
Fair use redefined. "Historic use" will kill innovation. "Historic use" is a joke. Write your senator about this now while it's still in draft.
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