Barbara Feldman: Teaching Digital Citizenship

Teaching Digital Citizenship

Junior Achievement has created a program called "What's the Diff?" to teach middle-school students about copyright and explore the moral issues surrounding stealing (oh, excuse me, the politically correct term is "sharing") digital music. The program is sponsored by the Motion Picture Association of America, who understandably has a financial interest in movies NOT being "shared" freely online.

Other than the lame program title, the concept looks good to me. But look at this response from Dan "Rold Gold" Simon, of ArsTechnica.com, who says:

"Now while I think it is worthwhile to mention copyright laws to children at some point, it's not really fair to only allow one view to be presented in these discussions and not mention fair use."

One view? Copyright and the fair use of copyrighted material are the law of the land. And as laws, they can be changed. But using fair use as a excuse for stealing digital works is weak.

Quoting from "Understanding Your Rights: The Public's Right of Fair Use" by Robin D. Gross, here are the four tests to determine if a particular copy is fair use or not, with my editorial comments in bold.

1)"The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes -- Courts are more likely to find fair use where the use is for noncommercial purposes."

If the files are are not being sold, then "sharing" music may pass this fair-use test.

2) "The nature of the copyrighted work -- A particular use is more likely to be fair where the copied work is factual rather than creative. "

Music and movies are certainly creative, not factual; this test fails.

3) "The amount and substantiality of the portion used in relation to the copyrighted work as a whole -- A court will balance this factor toward a finding of fair use where the amount taken is small or insignificant in proportion to the overall work."

Copying 100% of a song or film fails this test.

4) "The effect of the use upon the potential market for or value of the copyrighted work -- If the court finds the newly created work is not a substitute product for the copyrighted work, it will be more likely to weigh this factor in favor of fair use."

Copying music or film certainly decreases the potential market, and therefore this test fails.

"Sharing" digital music and movies fails three of the four fair-use tests. That's why it is stealing, not "sharing."