My pal Tim Wu continues to say incredibly smart and simple things about copyright, this time coming up with a great working definition of fair use for the 21st century.
Tim's been debating NBC's chief counsel on a New York Times blog, and they've gotten as far as fair use. Tim busts out a great working definition for fair use that simple enough to understand that it can be reliably followed by casual remixers and users of content, but not so simple as to be idiotic: if it adds new value, it's fair use; if it substitutes for the original, it's infringing.
It's going to take me a while to get my head around the implications of this — questions like how complex it will be to adjudicate "substitution" are thorny indeed ("I have a store where I sell licenses to move your DVDs to your iPod; your DVD-ripper substitutes for my product."). But if we expect the general public to abide by some kind of copyright system, it had better be one that's simpler and more streamlined than the current system, which has been described as incomprehensible even by its most renowned scholars.
That's why it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use. In my view that's a principle already behind the traditional lines: no one (well, nearly no one) would watch Mel Brook's Spaceballs as a substitute for Star Wars; a book review is no substitute for reading The Naked and the Dead. They are complements to the original work, not substitutes, and that makes all the difference.
This simple concept would bring much clarity to the problems of secondary authorship on the web. Fan guides like the Harry Potter Lexicon or Lostpedia are not substitutes for reading the book or watching the show, and that should be the end of the legal questions surrounding them. The same goes for reasonable tribute videos like this great Guyz Nite tribute to "Die Hard." On the other hand, its obviously not fair use to scan a book and put it online, or distribute copyrighted films using BitTorent.
We must never forget that copyright is about authorship; and secondary authors, while never as famous as the original authors, deserve some respect. Fixing fair use is one way to give them that.