'Fair use' folk confront Hollywood

Use of content for free is 'foundation of digital age'

WASHINGTON -- Some of Hollywood's traditional opponents are attempting to beat the entertainment industry at its own game after the so-called "fair use" industries delivered a study Wednesday that claims they can be credited with more than $4.5 trillion in annual revenue for the U.S.

Fair use, while difficult to define, is a defense against copyright infringement penalties. It generally enables the use of copyrighted material for certain purposes, like excerpts in a book review, without the copyright owner's permission. Fair uses usually are intended to further scholarship, education or to keep the public informed.

There is constant tension between those who argue that the fair use defense should be expanded, allowing the use of copyrighted works for free with no strings attached, and those who want to shrink the definition so they can more profitably exploit their copyrights, trademarks and patents.

The study, released during a Capitol Hill ceremony by the Computer and Communications Industry Assn., is an effort by the organization's members -- such companies as Microsoft, Google, the Linux Foundation and Yahoo -- to counter assertions by MPAA and RIAA members that the intellectual property they produce is one of the biggest contributors to the U.S. economy.

The entertainment industry has long used this economic contribution as a reason for the White House, lawmakers and regulators to back policies that benefit it. Those arguments have helped it win the battle for increased anti-piracy efforts, tougher laws that target infringement and for beneficial trade policies.

Now, some of the companies harmed by these policies aresaying that they too make a major economic contribution, even if their numbers appear to be outsized. While it's unclear how many policymakers will buy the claim that any one industry -- no matter how broadly defined -- accounts for what is equivalent to one-third of the nation's GDP, there's no doubt the new numbers will get bandied about in the policy fights to come.

"As the United States economy becomes increasingly knowledge-based, the concept of fair use can no longer be discussed and legislated in the abstract. It is the very foundation of the digital age and a cornerstone of our economy," CCIA president and CEO Ed Black said. "Much of the unprecedented economic growth of the past 10 years can actually be credited to the doctrine of fair use, as the Internet itself depends on the ability to use content in a limited and nonlicensed manner," like search engine citations, for example.

The MPAA and the RIAA referred questions about the study to the Copyright Alliance, an umbrella group that represents the broad range of copyright companies.

Alliance executive director Patrick Ross said the CCIA is missing the point.

"There is no fair use without original creative works. Period," Ross said. "It is like trying to imagine a librarian without books. All those who embrace fair use must understand this and support creators who are producing the works they so prize."

The copyright industries have their own numbers, claiming that in 2005 they accounted for about 11% of the GDP, or $1.38 trillion.