But it’s disturbing that the cartoon purposefully makes the Fair Use “explanation” unintelligible. Presumably that’s because Fair Use is so complex and so difficult to defend that Google doesn’t even want to raise it as a possibility. Nevertheless, it seems like a missed opportunity to do some education. Worse, it’s a sign that we’ve pretty much given up on Fair Use.

Likewise, many of us were disappointed when Google Books dropped its Fair Use defense and instead came up with a settlement (since overturned) with the authors and publishers. It was another lost opportunity to provide Fair Use with some clarity and oomph.

Fair Use doesn’t need just a posse (Lord bless it). It could use a bigtime hero with some guts.

The fair use debate is important, but it is not the only problem with DRM. Equally important, but thus far largely overlooked, is the impact on user-innovation and on the permitted development of media technology. Because DRM systems, by design and contract, must be hardened against user-modification, they foreclose a whole class of technology and mode of development. Moreover, this problem is distinct from that of fair use. Even if we could wave a magic wand and fully accomodate fair use in DRM, the incompatibility with user-innovation would persist, because it stems from a different and deeper aspect of the DRM system. Even the “fairest” DRM systems on the market today are unfair to the developers of new technology.

Anticircumvention law, backing TPMs [Trusted Platform Modules] and robustness rules, is fundamentally incompatible with deep-level user innovation…

Here is Wendy’s “Tell ‘em what you’re going to tell ‘em” paragraph:

First I briefly review the history and existing academic debates around DRM to consider why they have so overlooked the user-innovation impacts. The next sections examine the law and technology of digital rights management, particularly the interaction of statutory law, technological measures, and the contractual conditions generally attached to them. I focus particularly on the “robustness rules” in licenses at at this inter- section. I then introduce the rich literature on disruptive technology and user innovation, to argue that these copyright-driven constraints significantly harm cultural and technological development and user autonomy. I conclude that the mode-of-development tax is too high a price to pay for imperfect copyright protection.