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Estimating fair use - September 13, 2007

I've never put much stock in those research studies purporting to document the economic contribution of the copyright industries so I guess it's only fair that I'm not putting much stock in the new CCIA report documenting the contribution of industries that rely on fair use.

Not because it isn't a worthy effort. As with the copyright industries reports, anything that adds to our understanding of how the world works and the risks and rewards of our actions is worth undertaking in my book.

My problem with all of them is the premises from which they start, specifically the "but for," premise: The assumption that, but for the specific activities under study (usually those of the report's sponsor) some or all of the other virtuous activity the report describes would not or could not have occurred.

The CCIA report, to its credit, is at least explicit about the premise.

"The methodology used in the report defines a set of 'core industries' that either would not exist, or be much smaller, but for the limitations and exceptions to copyright law," the report states in its introduction [emphasis mine].

That, of course, is unknowable, unless someone has figured out how to rewind history and play it back with different inputs (would recording history for later playback be a fair use?!). To accept the premise, you have to accept that there is no possible combination of licensing regimes, business relationships, market pressures and alternative innovation strategies that could have produced a comparable level of economic activity. Which is a lot to accept.

It also assumes that all of the economic activity made possible by industries that rely on fair use is, in fact, fair use, when that almost certainly is not the case.

I understand that researchers need to start somewhere, and that assumptions are a part of any attempt to model behavior. But the "but for" premise on each side of the copyright economics argument hides what is essentially an ideological axiom.

The copyright industries tell us, for instance, that, but for the activities of the major studios, on-set catering business would be tough to come by in LA.

True, but to assume that all that economic activity would cease to occur without the major studios is to assume that no other form of catering would provide a viable substitute, or that entrepreneurial caterers would make no effort to develop other markets, or that those currently employed in on-set catering are incapable of other kinds of work.

You would only assume that if you were determined to conclude that the business activities of the major studios are essential to any healthy economy, a proposition clearly at odds with the many counter examples of healthy economies that are not host to the major U.S. studios.

All of which proves that, not only will different assumptions lead to different conclusions but that different conclusions require making different assumptions.


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