Red Herrings
Author:  Michael O'Leary
Date:  07/12/2011

Yesterday, the Computer & Communications Industry Association (CCIA) released a report that aimed to measure the economic impact in the U.S. of what it describes as “fair use industries,” or “economic activity that benefits from copyright fair use and other limitations on the copyright regulatory regime.”

No surprise that the study turned up big numbers – Capital Trade, Inc., the firm that conducted it, found that one-sixth of economic activity and the jobs of more than 17 million workers in the U.S. could be attributed to these “fair use industries.”  

But what’s interesting is the us-versus-them language that’s all over CCIA’s announcement of the report, at least as it applies to the PROTECT IP Act and other efforts to prevent content theft.  This is from a statement by CCIA President and CEO Ed Black:

“Too often we hear about the cost of piracy without also considering the cost to legitimate sectors of the US economy of poorly targeted copyright enforcement measures like the pending Protect IP Act.  A better understanding of the costs of overzealous copyright enforcement should help policymakers make sure new rules, legislation and trade agreements protect rightsholders as well as innovation.” (emphasis ours)

Puzzling, because many of the “fair use industries” the report suggests would in some way be harmed by stopping the massive proliferation of online content theft include the people and organizations whose work and livelihoods are most at risk from that theft.  The version of CCIA’s report released last year, and we assume this one as well, counted the motion picture industry (that would be us) among the “fair use industries,” as well as independent artists, writers and performers; radio and TV broadcasters; software publishers; promoters of sporting events; and many others for whom copyrighted content is indispensable to their work.  (See Appendix I of the 2010 report.)  So what gives?
Here’s the real story.  Fair use and other recognized exceptions to the exclusive rights of copyright owners are important – but there’s an enormous difference between fair use and the blatant, massive, wholescale taking of intellectual property occurring online.  That isn’t fair use nor any other legally permitted use; it’s theft that robs the millions of people working in IP industries of jobs, retirement savings, and earnings to invest in future creations. 

It’s one thing to celebrate the clearly enormous contribution to the U.S. economy made both by those who create intellectual property and those who use it fairly as part of legitimate business models.  It’s another thing entirely to turn fair use into a red herring, obscuring the very real harm of content theft to our entire economy.

Ultimately, fair use depends on the availability of rich, creative, original content that is protected from infringement.  We welcome the support of the fair use industries – or should we say the other fair use industries? – as we work to pass legislation protecting from that theft the very same content on which they rely.