International Journal of Law and Information Technology Advance Access originally published online on September 28, 2007
International Journal of Law and Information Technology 2008 16(2):176-204; doi:10.1093/ijlit/eam009
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Looking for zero-sum or win-win outcomes: A game-theoretical analysis of the fair use debate
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Abstract |
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DRM (Digital Rights Management) affects the traditional doctrine of fair use. Currently the fair use debate in essence involves an ‘interest conflict’ between the information industries and the individual user. That is, industry prefers fared use while the user’s preference is for traditional free use. In order to make the fair use solution feasible, it depends heavily on the industry and user’s willingness to obey the final outcome. This paper argues that the key point required to accommodate the fair use debate is the coordination concept which is important but long ignored because we have been used to treating fair use debates as an all-or-nothing problem. Hence, this paper recommends that the ‘battle of the sexes’ game, long accepted as useful for dealing with the coordination problem involving interest conflict between the parties and also Schelling’s ‘focal point’ concept (exploring expectation convergence of all affected parties) can provide useful game-theoretic insight for lawyers to think about how to avoid zero-sum solutions to the fair use debate.
Key Words: fair use • game theory • battle of the sexes • focal point • common knowledge • coordinated game • DRM • the developing world • the developed world