One of the most common arguments used to justify the theft of intellectual property (IP) is the doctrine of "fair use." This doctrine is used, erroneously, to support the general notion that we as consumers have a right to utilize the IP that we "purchase"* however we want, such as ripping to CDs, copying to portable devices, etc. I've even seen it used to justify downloading music via P2P technology like Bittorrent, although that's clearly not within any rational person's definition of "fair use."

Just what does "fair use" mean, though? Does it provide the right to rip music to a CD, and to copy digital versions of IP to any number of devices? Does it give us the right to use software to strip off the DRM applied by any of the various vendors of digital media, such as iTunes?

According to the U.S. Copyright Office, "fair use" has a much more limited definition. It means, essentially, that one has the right to utilize parts of a copyrighted work for very specific, noncommercial uses such as research, news reporting, teaching, etc. Even then, one cannot utilize an entire work, although it's left up to the court to decide what's acceptable in any given context. Clearly, though, this definition does not allow the consumer any rights to copy a given piece of IP.

Other court decisions and case law have been used to justify copying IP, and in some cases might even be reasonable absent other considerations. For example, DVD's do get damaged, and it might seem perfectly reasonable to make backup copies. However, in reviewing a few DVD's that I've purchased, I've found that each states clearly on the label that unauthorized copying is prohibited. Therefore, my only options regarding those DVD's is to refuse to purchase them, or to abide by those terms.

In any case, I do not have a "fair use" right to copy those DVD's. Any other interpretation would appear to be an urban legend, and a dangerous one at that.

*Note that I put "purchase" in quotes, although I continue to use the word throughout the post. It's a topic for another discussion, but I believe it's more accurate to say that we license intellectual property rather than purchase it. And, we do so, in many cases, according to very specific terms. It might be that those terms need to be better communicated, as with software where the licensing terms are inside the box, but nevertheless those terms apply. Only if we destroy the concept of free, voluntary trade can we feel free to violate the terms of our own agreements.