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“fair use,” which sets out the factors a judge can use to weigh the
question of whether an infringement should be punished. While
fair use is a vital part of the way that works get made and used,
it’s very rare for an unauthorized use to get adjudicated on this
basis.
No, the realpolitik of unauthorized use is that users are not
required to secure permission for uses that the rightsholder will
never discover. If you put some magazine clippings in your mood
book, the magazine publisher will never find out you did so. If
you stick a Dilbert cartoon on your office-door, Scott Adams will
never know about it.
So while technically the law has allowed rightsholders to in-
finitely discriminate among the offerings they want to make
— Special discounts on this book, which may only be read on
Wednesdays! This film half-price, if you agree only to show it to
people whose names start with D! — practicality has dictated that
licenses could only be offered on enforceable terms.
When it comes to retail customers for information goods —
readers, listeners, watchers — this whole license abstraction falls
flat. No one wants to believe that the book he’s brought home is
only partly his, and subject to the terms of a license set out on the
flyleaf. You’d be a flaming jackass if you showed up at a con and
insisted that your book may not be read aloud, nor photocopied
in part and marked up for a writers’ workshop, nor made the sub-
ject of a piece of fan-fiction.
At the office, you might get a sweet deal on a coffee machine
on the promise that you’ll use a certain brand of coffee, and even
sign off on a deal to let the coffee company check in on this from
time to time. But no one does this at home. We instinctively and
rightly recoil from the idea that our personal, private dealings in
our homes should be subject to oversight from some company
from whom we’ve bought something. We bought it. It’s ours.
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