Lawful Personal Use

We are perfectly fine with personal use. - Mitch Bainwol, Recording Industry Association of America, 2005 1 Despite having sued more than 20,000 of its customers,2 the recording industry wants the world to know that it has no complaint with personal use. Copyright lawyers of all stripes agree that copyright includes a free zone in which individuals may make personal use of copyrighted works without legal liability.3 Unlike other nations, though, the United States hasn't drawn the borders of its lawful personal use zone by statute.4 Determining the circumstances under which personal use of copyrighted works will be deemed lawful is essentially a matter of inference and analogy, and differently striped copyright lawyers will differ vehemently on whether a particular personal use is lawful or infringing.5 The dispute is not simply a question of where one lives on the copyright food chain. The contours of lawful personal use are fuzzy as well as contested.6 Every time a study of copyright law queries the scope of lawful personal use, it concludes that the answer to the question whether any particular personal use is lawful is indeterminate.7 Wherever the fuzzy borders of lawful personal use lie, however, most would agree that the lawful personal use zone is shrinking. Congress has significantly expanded the breadth of copyright protection in the past few decades; some of that expansion has come at the expense of personal use.8 The proliferation of digital technology has made personal use both easier to track, trace, and charge for,9 and a more formidable threat to conventional commercial exploitation of copyrights.10 Copyright owners have therefore launched a variety of initiatives to replace unmetered and unmonitored personal uses with licensed ones. They have demanded the restraint of unauthorized personal use as a necessary step in encouraging the new commercial services to flourish.11 Meanwhile, individuals' claims to make personal copies and pass them on to friends and family seem more questionable when those copies are digital.12 Copyright owners have insisted, with some success, that digital devices must be equipped with copy-prevention technology before being made available to consumers.13 Increasingly, what consumers have viewed as a "right" to make fair uses of copyrighted works is painted as a historically and technologically contingent privilege that may need to yield to copyright owners' new licensing strategies.14 Fifty years ago, copyright law rarely concerned itself with uses that were not both commercial and public.15 Twenty years ago, when the Supreme Court's decision in Sony Corp. of America v. Universal City Studios, Inc.16 was still fresh, people believed they were free to use copyrighted works noncommercially, and the law for the most part backed up that belief.17 Today, however, the recording industry has sued more than 20,000 individuals for making personal uses that can be characterized as "commercial" only by redefining commercial to mean "unlicensed." Today, trading music with your friends is called "piracy" and collecting photocopied articles relevant to your job is stealing.18 Today, it's a major concession when the lawyer representing the recording industry acknowledges to the Supreme Court that it is lawful for twenty-two million iPod owners to use them to listen to music they've copied from recordings they have purchased.19 Whether the shrinking of lawful personal use should disturb us depends on whether personal use has intrinsic value. If personal use was once lawful solely because of enforcement difficulties, the easy enforcement of copyright prerogatives against individuals for unlicensed personal uses is yet another benefit of technological progress. If the only factors discouraging us from welcoming the reduction in the scope of lawful personal use are concerns for the collateral damage to our privacy arising from vigorous enforcement of copyright within the home, or the effects of reduced access on social equality, we could address those fears directly by legislating new privacy rights or encouraging the adoption of innovative pricing models. …