A Poor Fit for Copyright

In early January, a video of Tom Cruise discussing his devotion to Scientology appeared on several Internet sites, including Gawker and YouTube.  According to news sources (NYT, WaPo), the Church of Scientology requested that the sites remove the video, claiming copyright ownership.  Gawker refused, arguing that fair use principles protected it from liability.  This case is certainly interesting from a copyright perspective because it would seem to represent an instance when the first fair use factor (the purpose and character of the use) is more important to the analysis than the more commonly considered fourth factor (the effect of the use on the potential market).

More broadly, it suggests that copyright is a bad fit for maintaining secrecy.  As evidenced by the earlier Diebold dispute involving the dissemination of company documents describing voting machine problems, fair use principles often preclude copyright liability in these instances.  One could argue that this is as it should be.  Copyright has a specific incentive goal: to encourage the production and dissemination of creative works without fear that free riding will erode profits.  Control simply to maintain secrecy -- particularly when market effects are not apparent -- is contrary to this goal.