Fred von Lohmann started the session by presenting his paper, "iPods, Tivo and Fair Use as Innovation Policy" (PDF). The general theme here is that we need to "rethink fair use in the digital age". The premise of his paper was that in some regard these potentially infringing technologies help create a "consumer surplus" which in the long run is actually a "complimentary use" for the content owners. Prof. Gerald Dworkin, the panel moderator, commented that under US law "fair use" equates to "free use". In reality, he said, there are three options for allowing use: allowing this free use, restricting access entirely, and allowing access with a compulsory (paid) license. He seemed to favor this last option - the idea of "compensation without control." Fred seemed to agree, both in the panel and in a side discussion after the panel, but added that without these initial free uses, the technology would likely not exist for the copyright holders to take advantage of such paid uses. I expect we'll hear more about this in the afternoon Grokster panel.
Richard Owens, director of Copyright for WIPO, then presented about limitations and exceptions in WIPO. He also addressed the "fair dealings" exception. Originally this was a purposive test, has now been expanded to "fair dealings in other uses", which isn't quite as broad as fair use but serves a similar function. In the panel, Mary Wong said that fair dealings is also no longer purpose driven in Singapore. Jule Sigall was pleased to hear that, despite other general perception, others realized that the US was actually one of the more relaxed nations on copyright.
Jule Sigall of the US Copyright office then talked about the relationship between P2P software and fair use, focusing primarily on Fred's "complimentary use" argument. He said there is a "low gravity" in the P2P market - that is, Grokster couldn't charge for its software even if it wanted to, because people would just switch to Kazaa or BearShare. Their goal in the Copyright Office is to raise that bar.
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