Robert S. Schwartz, Techdirt; The Demise Of Copyright Toleration
"Although denying fair use, these content owners were acknowledging a
larger truth about copyright, the Internet, and even the law in general:
It works largely due to toleration. Not every case is clear;
not every outcome can be enforced; and not every potential legal outcome
can be endured. Instead, “grey area” conduct must be impliedly
licensed, or at least tolerated.
Counsel then or now could not have cited a single court holding on whether the private, noncommercial recording of a song is a lawful fair use. Long before the Supreme Court in Sony Corp. of America v. Universal City Studios, Inc.
said that video home recording from broadcasts as a fair use, the music
industry could have pursued consumers for home audio recording from
vinyl records. But the risk of losing and establishing a bad precedent was too great.
Toleration endured because fair use, and the practicalities of
enforcement, had to be endured by content owners. They recognized that
their own creative members also relied on fair use in adapting and
building on the works of contemporaries as well as earlier generations.
They also realized that offending consumers by suing them might not be a
good idea – a reason (in addition to the possibility of losing) why the Sony plaintiffs dropped the individual consumer defendants they had originally named."
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