New Content Industry Talking Point: Fair Use Is Bad Because It Leads To Litigation

from the say-what?!? dept

Mon, May 2nd 2011 11:52am — Mike Masnick

While we were initially skeptical of a planned review of copyright law in the UK (after all, it had been done just five years earlier, with most of the key points then ignored by the government), we were encouraged by some of the folks who were included as a part of the process. However, it looks like, once again, politics may have gotten in the way. We had laughed at the ridiculous claims from the UK copyright industry folks that fair use was bad and would put a "chokehold on innovation." After all, we have fair use in the US, and we've seen no evidence that fair use holds back innovation in any way, shape, or form.

And yet, as the report is about to come out, reports are leaking that the committee has decided not to support an American-style fair use law in the UK. The suggestion is that they bought the ridiculous claim from the entertainment industry that fair use is a problem because it leads to a lot of lawsuits:

According to sources close to the review, the panel decided fair use would be too problematic to replicate from scratch in UK law because it emerged from a number of US case law precedents. Fair use, which is employed as a defence against infringement claims in the US, has also given rise to a high volume of litigation.

Frankly, this makes no sense (at all), unless there's a lot more to it. Yes, fair use in the US developed through case law, and was then codified in 1976. And, yes, there has been additional case law on the matter since, but the UK now has all of that case law to look at, and it's entirely possible to write smarter fair use laws today. You can't just throw up your hands and say because it developed out of case law in the US that it leads to too much litigation. The proper response is to better define the contours of fair use, such that there need not be as much litigation. Tragically, that appears to be unlikely this time around.

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Filed Under: case law, copyright, fair use, uk

33 Comments

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The eejit (profile), 2 May 2011 @ 11:12am

You know who has a vested interest in making laws? Politicians. If they made laws that made sense, they wouldn't be needed.

This explains the entirety of copyright.
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DannyB (profile), 2 May 2011 @ 11:55am

My new talking point
Copyright is bad because it leads to litigation.

Patents are bad because they lead to litigation.
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:Lobo Santo (profile), 2 May 2011 @ 12:01pm

By that logic...
Courts are bad, as they allow litigation.

In fact, if we just removed courts and laws, there will be no litigation at all!

(Problem solved.)
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Anonymous Coward, 2 May 2011 @ 12:17pm

Fair Use does not is not easily transported into the UK's system of laws, primarily for the reason that Fair Use in the US has as one of its principles the reconciliation of copyright with the US Constitution's First Amendment freedom of speech and of the press.

This does not mean it cannot be done, but only that the system of laws in the US and the UK do not fully coincide.
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Anonymous Coward, 2 May 2011 @ 12:22pm

"After all, we have fair use in the US, and ..."
And so what ? the US is not the model for the rest of the world you know ?
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Anonymous Coward, 2 May 2011 @ 12:23pm

Re: My new talking point
Well, it's against the law because it's bad for you and it's bad for you because it's against the law! Simple really.
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Michael, 2 May 2011 @ 12:25pm

Re: My new talking point
Courts are bad because they lead to litigation.

Laws are bad because they lead to litigation.

...all roads lead to litigation?
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Michael, 2 May 2011 @ 12:26pm

Re:
Good point.

Perhaps we should...you know...stop making laws for other countries.
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Chris Brand, 2 May 2011 @ 12:27pm

US influence
No doubt in a few years it will turn out that the US embassy kindly agreed to write this report for the committee...
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Mike Masnick (profile), 2 May 2011 @ 12:27pm

Re:
And so what ? the US is not the model for the rest of the world you know ?

Never said it was. Did you even read the next sentence which explains why I said that?
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sheenyglass (profile), 2 May 2011 @ 12:44pm

You keep saying that word (causation)...
I think its kind of funny that the argument is that an affirmative defense increases litigation. As an affirmative defense it will only be used AFTER the commencement of litigation.

Self-defense should be abolished because it "gives rise to" far too many murder prosecutions!
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Josh in CharlotteNC (profile), 2 May 2011 @ 12:44pm

Re: Re: My new talking point
When all you have is a hamm^H^H^H^H lawyer...
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Anonymous Coward, 2 May 2011 @ 12:50pm

Re:
To suggest that fair use is not well suited for UK law does not comport well with history, since even a cursory reading of Story's 1841 Folsom v. Marsh opinion reveals that the fair use doctrine sprang from the UK doctrine of fair abridgment.

It is true that is is now viewed as the safety valve by which the First Amendment coexists with the Copyright Act, but it it does not follow that the conforming parts of the Copyright Act could not exist without the First Amendment.

That is a sort of post hoc ergo prompter hoc error, there.
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John Doe, 2 May 2011 @ 12:56pm

Litigation is the fault of the industry..
Fair use is needed to protect people from litigation, not to cause litigation. It is the over zealous content owners doing the litigation. I don't even know how you could even talk about books, movies or music without fair use. Hell, you barely can with fair use.
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Anonymous Coward, 2 May 2011 @ 1:42pm

Fair use only leads to litigation if the copy protection holders decide to sue. It's kinda disingenuous for IP maximists to claim that they want fair use abolished because it will lead IP maximists to initiate more lawsuits.

"If you include fair use into your laws, it will cause me to sue more people, and you don't want that".
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Duke (profile), 2 May 2011 @ 2:58pm

Fair use would be a bad thing in the UK
I drafted large chunks of the Pirate Party UK's response to the Hargreaves Review, and recommended against having switching to a "fair use" defence. To be blunt, for many of the reasons given by the Telegraph - it is a common law defence and we don't have the case law here - as it is, there's enough confusion about fair dealing due to a lack of case law, adding "fair use" is unlikely to make things better.

As it is, it doesn't seem to be working that well in the US - it seems to be every other week there's a story on TechDirt about copyright lawsuits with an obvious "fair use" defence. PPUk recommended that rather than creating a new, vague defence, we limit the scope of copyright to when it is actually needed rather than expanding the defences.
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DG, 2 May 2011 @ 3:54pm

It's too hard to implement fair use
The collision between fair use and laws supporting moral rights of authors beyond the U.S.'s VARA (17 U.S.C. �106A) just may be too complex. Moral rights approach ownership of ideas and not just expression by extending rights beyond ownership of expression.

On the other hand in such locales 'Fair Dealing' could be permissible for where moral rights are limited, as in works for hire. In the U.S. copyright infringement is focused on commercial values (losses), while moral rights can also encompass less tangible value.
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Anonymous Coward, 2 May 2011 @ 6:12pm

Re: Re:
"Perhaps we should...you know...stop making laws for other countries."

Yeah, that's right ... err no wait ... that's not what I meant. Ok, only the laws I like should be adopted overseas.
You freetards are always twisting the words about
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abc gum, 2 May 2011 @ 6:17pm

Re: You keep saying that word (causation)...
Heh - good point.
Self defense leads to too much litigation and we can not have that sort thing.

Claim that fair use is a right and not a self defense in 3..2..1
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chris, 2 May 2011 @ 7:08pm

fair use is bad because it leads to litigation

Is that really what they're concerned about? Because if so we could save a lot of trouble and just get rid of this whole copyright thing. That would certainly lead to less litigation.
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Anonymous Coward, 2 May 2011 @ 9:50pm

Re:
It's almost like a threat or an ultimatum. "Don't include fair use or else ..."
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Anonymous Coward, 2 May 2011 @ 10:17pm

My ability to do what fair use allows me to do exists without government. It's not fair use that needs to be justified, its its lack. In fact, copy protection infringement doesn't need justification, it's the existence of copy protections that need justification. Copy protections do not exist outside of government.

http://www.techdirt.com/articles/20110428/13214514072/bogus-infringement-takedowns-da nger-relying-third-party-services-with-no-backbone.shtml#c518

The burden is on those who want monopolies to exist to justify their existence and they must also show that the social benefits of such monopolies outweigh any harm they cause. The reason I want IP abolished is

A: IP causes many problems.

B: The burden to justify their existence has not been met. It hasn't even come close to being met. Since the burden is on IP proponents to justify the existence of IP and that burden has not been met, IP should be abolished.
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Andrew Foster (profile), 3 May 2011 @ 5:16am

Re:
@ AC:

A: IP causes many problems.

B: The burden to justify their existence has not been met. It hasn't even come close to being met. Since the burden is on IP proponents to justify the existence of IP and that burden has not been met, IP should be abolished.

I think you have a very strong argument there, but I do think it ignores the impact of the status quo. In an idealistic world constructed from scratch, yes, there might be no case for IP. But our starting point is the real world, where we do have IP and where there is a massive transaction cost to the change. "Abolishing" IP per se isn't really feasible as a proposition, given the lie of the land.

I also happen to think IP CAN be a good system when properly limited, though (needless to say) it's not at the moment.
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Andrew Foster (profile), 3 May 2011 @ 5:35am

Let's not parse the report beyond all meaning...
No one is rejecting the proposition that copyright should be limited with a system of exceptions. What the report does, as far as can be gleaned without seeing it, is come out in favour of the UK's system of fair dealing rather than fair use. That is, not a set of relatively-amorphous principles determining what "infringements" might let the defendant escape a judgement for thousands of dollars after a long court battle, but rather a framework of specific, well-defined exceptions (i.e. you can copy with impunity if your purpose is on this detailed list of purposes).

There's less room for judicial interpretation, so it's less flexible because it generally requires legislation to add new exceptions... but by the same token, it absolutely does reduce litigation by virtue of its being far more certain. That in turn means it's far more reliable, which means a "fair deal-er" can go ahead and create without needing enough in the bank to fend off a potential lawsuit. It means far less of the infringement-intimidation, bullying tactics that everyone hates, because litigation is generally NOT a necessary step in exercising users' rights.

That's what's being proposed here - that the UK stick with the well-defined and reliable system rather than move to a more flexible but less-certain one.

Indeed, from the linked article it actually looks like the review recommends broadening the system of exceptions - among other things with a format-shifting exception (long overdue for the UK) as well as proposals for access to orphan works, which I think would put it actually ahead of the US, unless anyone can correct me on that?

Let's not focus on one miniscule clause and lose the bigger picture of what is, I think, looking like a victory for good copyright reform in the right direction.
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Anonymous Coward, 3 May 2011 @ 7:56am

Re: Re:
"and where there is a massive transaction cost to the change. "

The massive transaction cost hurts those who benefit from these laws, that is, mostly those who are the ones who lobby for these laws. As far as I'm concerned, those people should be in jail for all the harm they caused the public (that includes, but is not limited to, the pharmaceutical industry and the **AA). Any 'harm' that IP abolition causes them is the least of my concerns. To me, it's no different than saying that preventing bank robbery has transaction costs. Those transaction costs are to bank robbers, but who cares.
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Anonymous Coward, 3 May 2011 @ 7:57am

Re: Re: Re:
(IOW, if you benefit from IP, then you deserve whatever 'transaction costs' result from its abolition and more).
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Anonymous Coward, 3 May 2011 @ 7:58am

Re: Re: Re:
(oh, and it includes the agricultural industry like Monsanto as well. Sorry, didn't mean to leave them out, but these people truly deserve to be in jail).
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Anonymous Coward, 3 May 2011 @ 8:04am

Re: Re:
"but I do think it ignores the impact of the status quo."

You meant to say it ignores the impact to the status quo. I'm not ignoring the impact to the status quo, it's just that this impact is the least of my concerns.
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Andrew Foster (profile), 3 May 2011 @ 8:57am

Re: Re: Re:
No, I did mean to suggest that your reasoning ignores the impact of the status quo.

My point was that if you imagine we can create an ideal world, starting with the void and writing laws from scratch, then the question of "What law should we implement?" can be reasoned out in the way you've done.

But given that we can't, and we have to work forward from the way things are just now, the ideal course of action has to take account of where we are standing today. That is, we have to consider the impact of the status quo, on the question of how the law should be proceeding.

I think it's probably a little shortsighted to suggest that the transaction cost of abolishing IP would be borne only by the content industry.

Consider for example (the status quo:) how ingrained the idea of copyright is in public consciousness. To get support for abolishing it completely, you'd need a massive and expensive re-education campaign, and that's even if you pretend "re-education" can succeed. Consider that (the status quo:) the content industries have massive funding, impressive lobbying expertise and are well-versed in persuading the public of how essential copyright is.

I think that, taking account of the status quo, there is at present absolutely zero prospect of successfully abolishing the IP system outright. And I think most people with a grounded view of the matter say the same. So arguing for it is not just a waste of time and energy that could be better spent achieving real change, but it's also counterproductive - it just makes it even easier for the content industry to paint advocates of better copyright as clueless and out-of-touch with reality.

Much better, I think, to advocate gradual change towards a more effective system.
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Anonymous Coward, 3 May 2011 @ 10:56am

Re: Re: Re: Re:
IP is not about maintaining the status quo, it's about promoting the progress.
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Chris Ball (profile), 3 May 2011 @ 11:12am

Broad exceptions > flexible exceptions
I've been involved in a lot of discussions about copyright policy in Canada, where a similar debate has been going on about whether we should adopt U.S.-style "flexible" fair use. Unlike most of the people who I usually agree with on copyright issues, I also take the view that flexible fair use is a bad idea. Not so much because it leads to litigation per se, but because it leaves a lot of room for interpretation. That leads to copyright owners making really broad threats that have chilling effects. Copyright litigation is expensive. Would you be willing to put up $50,000 in legal costs if you are 90% sure you are going to win? More likely, you'll just give in; or you'll avoid the problem entirely by just not engaging in any use unless there is no conceivable argument that it isn't "fair" use.

Even as it is, Canada's existing system of fair dealing still has most of the same uncertainties as the U.S. system, so making it more "flexible" probably couldn't do any harm. But it might not do much good either, if users can still be threatened with a lawsuit. It would be much better to just have well-defined, broad exceptions to copyright, so that people can engage in all sorts of reasonable uses without any worries that they are going to get sued.
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Anonymous Coward, 3 May 2011 @ 8:41pm

Re: Re: Re: Re:
"the ideal course of action has to take account of where we are standing today."

So instead of abolishing (race based) slavery, lets just place restrictions on slave holders to help ensure the safety of slaves.

If slavery shouldn't exist then it should be abolished. Likewise, if IP shouldn't exist then it should be abolished. IP is wrong. I haven't seen sufficient justification for its existence. I want it abolished. I will continue to advocate its abolition. I don't care what the current state is because the current state of things is irrelevant to what should be. I will continue to advocate what should be.

"I think it's probably a little shortsighted to suggest that the transaction cost of abolishing IP would be borne only by the content industry."

It would be borne to many (as I mentioned above, many in the pharmaceutical industry would suffer, among many others). But those who would incur the costs deserve it and more.

"Consider for example (the status quo:) how ingrained the idea of copyright is in public consciousness."

Given how much the industry complains about mass piracy, I do not think the public cares about maintaining these laws all that much. If so many people are pirating then clearly these laws aren't all that important to people. I very highly doubt it is the public that wants 95+ year copy protection laws. No, these laws aren't a product of a public consensus, they're a product of a one sided industry based decision. and, despite the fact that the mainstream media and our educational system has been spending a ton of resources trying to brainwash everyone into supporting these laws, I still see very little evidence to suggest that the people really want these laws. I remember, for instance, much earlier on, one of Obama's talking points was that he will reduce patent lengths for pharmaceuticals (or at least the extension that the FDA can grant). Politicians themselves seem to understand the public support they get by advocating for less strict IP laws. It was the media and the industry that seemed to not like the idea. and despite the fact that our monopolized mainstream media (a media that benefits from govt imposed monopolies) is very one sided on this issue, often only presenting one side of the issue while censoring criticisms and negative information about IP (ie: the info that we get here on Techdirt), there still seems to be little evidence that the people want these laws. In the face of the many criticisms we see here on Techdirt, I think it will be easy to convince the public that these laws are nefarious. Heck, I think many of them already know. People aren't stupid.

"it just makes it even easier for the content industry to paint advocates of better copyright as clueless and out-of-touch with reality."

It's not easy to paint advocates of better copy protection laws as clueless and out of touch with reality. Sure, it's easy to try, but it's hard to sell. People aren't stupid and no one (besides our bought politicians, but they're bought anyways) believes it.

"Much better, I think, to advocate gradual change towards a more effective system."

You assume that advocating IP abolition must either only accomplish abolition or IP stasis/expansion and that it can't accomplish IP reductionism (or the retardation of its expansion). While I would like IP abolished, it's perfectly possible that demanding IP be abolished could result in a reduction in IP protections.

"and are well-versed in persuading the public of how essential copyright is."

I don't really see this working very well. People aren't stupid.
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Andrew Foster (profile), 5 May 2011 @ 9:41am

Re: Re: Re: Re: Re:
Well, to indulge the (missed-the-point) slavery analogy, you're absolutely right that if slavery shouldn't exist then it should be abolished.

So you should work towards the abolition of slavery - clearly. But if the overwhelming majority of people will not yet take seriously any proposal to abolish slavery, then campaigning to abolish slavery is a counterproductive, time-wasting way to work towards the end goal. That is my point. Maybe you're right and IP should be abolished, but shouting about that while no-one will listen is far less effective than shouting about gradual reform that makes people pay attention.

I haven't somehow failed to see that advocating full abolition might in the meantime achieve weaker IP laws (please appreciate that we disagree but I'm not stupid). My point is that if we advocate a gradual loosening of the current laws then there's a case for opponents to answer; if we advocate the total abolition of all IP then they can laugh off the "freetards" who don't understand how the real world works.

We obviously disagree on whether there is a public appetite for the full abolition of IP. You think everyone will suddenly get on board with abolition if we keep doing exactly what we've been doing; I don't. I can tell I'm not changing your mind but do remember that it's very easy to read only Techdirt, Lessig, Boyle etc and convince yourself that everyone agrees with you... but I really don't think everyone does. Don't get me wrong, I AGREE with you on the need for less IP, but I think it's very naive to believe that everyone else is suddenly going to take seriously proposals for its abolition. Frankly I'd say the state of our current laws is pretty clear evidence that there is next to no broad appreciation among the public or among politicians of the dangers of IP.
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