Building The Foundation
"Fair Use" is a concept that has seen more than its share of reference in today's fight over digital usage rights. It is a loosely-defined legal term with a variety of meanings that vary depending on the specifics of each situation. Most courts seem to follow the "Reasonable Person" standard to help determine findings when they find themselves in those gray areas where the law is not specific enough. The idea goes something like this. You ask the question to yourself, "What would a reasonable person do in this situation?" or "Would a reasonable person consider that to be Fair Use?" Believe it or not, that standard works much of the time and in my opinion makes sense.
The original concept for this article started out a lot more limited in scope than it ended up being. But many topics, including fair use, are complicated and intertwined in a way that could only be the result of our legal system. One area rolled over into another and then another and before I knew it, I was overwhelmed with information that all somehow seemed to be related to each other. I've decided to break things down by categories and discuss them individually as a matter of clarity and will seek to tie them together by comparisons where needed.
DVD and VHS Movies
Movies are meant to be used in a specific place on specific equipment, and to be perfectly honest, I have no trouble at all with these being copy protected. Most people will not transfer them to multiple locations, from their cars, to work, or while jogging. There should be no issues in terms of Fair Use here, with the possible exception of trying to backup a damaged product.
But even with that, most people would consider the matter cut and dry. A reasonable person would probably say that if you damaged your tape or DVD, you should have to buy yourself another one. Since the price of DVDs and VHS tapes are almost always under twenty or thirty dollars, the impact of individual losses may not be that great and should not cause much trouble for the owner. If you have a collection of DVDs and VHS tapes and they are of value to you, it is also likely that they will be insured under some kind of residential policy. Given the realities of the marketplace and the re-issuance of many older titles onto updated DVDs, replacement should be a fairly easy thing to do.
The situation may be different for large institutions such as libraries and schools, but when it comes to individual consumers, I think most of us can see that there is no Fair Use issue here. As copy protections evolve, it may be necessary to update DVD players with new firmware, but that should be about it. People with computers may want to make copies of individual frames of their DVDs for display on their desktop, and that does not seem like a violation. In fact, most PC based DVD players allow for individual frame captures, and nobody seems to be having much of an issue with it.
These may fall into a different category, depending on how they are marketed. If the data exists only in an electronic form that is designed to be transferred from the memory of one device to the memory of another, then I believe it is reasonable that buyers have the right to make backup copies. However, if they are provided to the user on copy protected media, such as a CD or DVD and are designed to be viewed in a media player device, then to me they fall into the same category as a printed book or DVD movie. Again, the investment level is likely to be under thirty dollars, so the same logic would apply here regarding replacements of physical media.