Dr. Matthew Rimmer Takes A Closer Look At Fair Use

from the fair-use-of-the-week dept

For this week's Favorites of the Week, Dr. Matthew Rimmer wanted to focus in on some of the specific points that came up in the Congressional hearing on fair use earlier this week. While a bit different than our usual "favorites of the week" post, it's a really fantastic in-depth look at some of the issues, which I'm sure many of you will enjoy.

It is twenty years since the Supreme Court of the United States handed down its landmark decision on copyright law and the defence of fair use in the "Pretty Woman" case, Campbell v. Acuff Rose Music. Inspired by the jurisprudence of Justice Story and Justice Leval, Justice Souter developed a doctrine of transformative use. His Honour stressed that "the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works." Justice Souter observed: "Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use."

In January 2014, the United States Congress held a hearing about copyright law and the scope of the defense of fair use. The House of Representatives Judiciary Committee - through its Subcommittee on the Courts, Intellectual Property, and the Internet - heard a number of pieces of evidence and testimony. Mike Masnick provided an astute summary of the issues raised in the hearing on Techdirt. Brandon Butler said that the hearing put "transformativeness on trial."

Professor Peter Jaszi is a leading public scholar and intellectual on matters of copyright law. He was instrumental in co-editing landmark collections of copyright law and authorship, such as The Construction of Authorship. Jaszi was quick to argue against the introduction of a copyright term extension in the United States. He has written extensively about the operation of the copyright defense of fair use – writing works such as Reclaiming Fair Use with Patricia Aufderheide.

In his written evidence, Jaszi emphasized four themes to the United States Congress about the defense of fair use. First, he observed that a "citizen's ability to make some socially and economically positive uses of copyrighted material without permission is a right, and now widely recognized as such – including acknowledgements by both the Congress and the Supreme Court, which has stressed the connection between fair use and the freedom of expression secured by the First Amendment."

Second, Jaszi commented that "fair use is working." He emphasized: "Everyone who makes culture or participates in the innovation economy relies on fair use routinely – whether they recognize it or not." He commented: "What's notable about the current situation is that more and more business and practice communities are actively acknowledging the ways in which their contributions to our collective cultural and economic life depend on the ability to exercise the right of fair use in appropriate circumstances." Jaszi has been a part of a recent study considering how artistic communities grapple with questions of copyright law, permissions, and fair use.

Third, Jaszi stressed that the defense of fair use is patterned, reliable, and predictable. He scoffed at the complaints of critics that the defense was vague, uncertain, and unpredictable: "The current state of the law is proving those critics wrong."

Finally, Jaszi maintained that there was no pressing need to revise or reform the defense of fair use in the United States. He observed that "the last decade has seen a proliferation of decisions applying this flexible, purpose-based doctrine to uses in the digital domain, from the development of interoperable software products and Internet search technology, to the practice of remix culture, though mass digitization in the promotion of access to knowledge." Jaszi stressed: "In effect, in only a few short decades, the courts have developed a robust 'unified field theory' of fair use which is fully capable of meeting the digital challenge and should be allowed to do so."

In conclusion, Jaszi held that "the fair use doctrine adds materially to our cultural choices, our learning opportunities, and our access to innovation." He commented: "We can only wonder (with some bemusement) why some of our most important foreign competitors, like the European Union, haven't figured out that fair use is, to a great extent, the 'secret sauce' of U.S. cultural competitiveness." Countries like Australia are at a competitive disadvantage, because their defense of fair dealing is much more limited and restricted than the United States doctrine of fair use.

In his testimony, Peter Jaszi deftly responded to questions from members of the United States Congress. Congressman Thomas Marino asked whether fair use encouraged piracy. This conflation of fair use and piracy is misleading and meretricious. The copyright industries have increasingly sought to slander fair use, by demonizing the defense, and scapegoating the doctrine for industry concerns about copyright infringement. Jaszi commented that internet piracy is not fair use because it would not meet the four factors under fair use and does not constitute transformative use.

Parker Higgins and Mitch Stoltz noted: "One area that got significant attention was the topic of mass digitization, which has been repeatedly determined by courts to be a fair and transformative use." Jaszi defended the legitimacy of fair use precedents relating to Google Books and Hathi Trust. He maintained that such decisions were success stories, rather than problems. Jaszi made the strong point that the decisions promoted the fundamental principles of copyright law – the progress of science and the useful arts, access to knowledge and education. The Hathi Trust decision is particularly socially useful because it addresses the pernicious problem of disability discrimination.

Moreover, Jaszi also discussed the new fair use ruling involving the financial information company, Bloomberg. The debate in the United States Congress was further heightened by a new United States decision on copyright law and fair use. In the case of Swatch v. Bloomberg, the Court of Appeals for the Second Circuit held that Bloomberg's recording and distribution of an earnings call by Swatch was protected by the defense of fair use. The court commented:

In the context of news reporting and analogous activities, moreover, the need to convey information to the public accurately may in some instances make it desirable and consonant with copyright law for a defendant to faithfully reproduce an original work rather than transform it. In such cases, courts often find transformation by emphasizing the altered purpose or context of the work, as evidenced by surrounding commentary or criticism.

Mike Masnick commented upon the ruling: "All in all, a nice clear win for fair use even when the full work is used for commercial reasons."

Edward Black from the Computer and Communications Industry Association lamented that technology developers were not well-represented in the debate over copyright law and the defense of fair use in the United States Congress. He maintained that the defense of fair use was particularly important in facilitating a range of emerging technologies:

The same fair use principle that saved home video has also served MP3 players, DVRs, smartphones and a considerable portion of modern Internet functionality, like cloud computing, that we depend upon today. In recent years, we've seen courts invoke fair use to validate a variety of transformative, socially valuable services, including online search engines, including image and book search; commercial-skipping and time-shifting with DVRs; and a service that compares students' papers against a database for plagiarism (who, understandably, might not want to authorize use of their papers to prevent cheating).

Black concluded:"Not only does fair use serve extensive societal interests, it has been a commercial boon to the U.S. economy -- something policymakers should be interested in protecting."

Mike Masnick makes the strong point that "fair use is the public's right" and not only provides protection for "free speech" but enables "great and powerful innovation as well." The emergence of new technologies such as 3D printing and cloud computing will pose new challenges for copyright law, and the flexibility of the defense of fair use, and the doctrine of transformative use.

Remix Culture, Fan Fiction, and Transformative Works

Also for the same hearing, Naomi Novik, provided an eloquent submission presentation to the United States Congress on copyright law, fair use, and remix culture.

One of the founding members of the Organization of Transformative Works, Novik is an American writer who is best known for her Temeraire series, which tell an alternative fantasy history of the Napoleonic Wars, featuring dragons.

This was a timely submission given the copyright litigation of late over remix culture. There has been much copyright litigation over literary mash-ups such as The Wind Done Gone and 60 Years Later; appropriation art by Shepard Fairy and Richard Prince; and digital sampling and musical quotations; and television advertisements such as GoldieBlox's parody of the Beastie Boys.

Novik discussed the role of the defense of fair use with respect to remix culture, fan fiction, and mash-ups. She noted: "I am not a lawyer, but as one of the creators and artists whose work is deeply affected by copyright law, I hope to explain how vital fair use is to preserving our freedom and enabling us to create new and more innovative work." Novik maintained: "I urge Congress to not only preserve but strengthen fair use, to encourage still more innovation and creative work by more new artists. I would ask in particular that Congress consider improving protections for fair users, especially individual artists, who are threatened with lawsuits or DMCA takedowns."

Nostalgically, Novik recalled her early experiences, experimenting with fan fiction in an online remix community:

In 1994, while I was still in college, I first came across the online remix community. Over the next decade, before I wrote one word of my first novel, I wrote fanfiction, built online computer games, wrote open­source archiving software, and created remix videos. I met hundreds of other artists creating their own work, and found an enthusiastic audience who gave feedback and advice and help. I had no money for licenses or lawyers. Neither did my fellow artists. No one would have sold us one anyway. We weren't trying to make money off our work. We were gathering around a campfire to sing and tell stories with our friends. The campfire was just a bigger one, and instead of telling new stories about Robin Hood, we told new stories about Captain Picard, because that was who we saw on television every week. Fair use gave us the right to do that.

Novik emphasized: "Our work was transformative in every sense of the word." She stressed: "We weren't simply retelling the old stories — we were creating new stories, and ones that weren't being told." Novik commented: "We transformed the original work, and we transformed ourselves by doing so." She discussed how the creative community facilitated creativity: "We learned to think of ourselves as writers, artists, programmers, as creators." She observed: "We took our craft seriously and so did our audience, and that audience was invaluable."

Novik reflected that the history of art, literature, and drama has been one of borrowing:

Vincent van Gogh deliberately copied Japanese woodcuts so that he could find his own style. Shakespeare borrowed heavily from earlier sources. No one could deny that he transformed them. But imagine if the laws of his time had barred him from doing so. We wouldn't have Hamlet, we wouldn't have King Lear, we wouldn't have Romeo and Juliet. And if Leonard Bernstein hadn't borrowed from Romeo and Juliet, we wouldn't have West Side Story. Now if we prevent the next generation from borrowing from West Side Story, we cap the flow of creativity, we dam the river of innovation.

Novick indicted that "Original work, work that stands alone, doesn't just pop up out of nowhere." She stressed that "It is at the end of a natural spectrum of transformation." Novik emphasized that "Fair use protects this spectrum, this incubator if you will." She noted: "It's a space where artists can play with ideas and develop our skills, and share our work within a community and learn."

Novik was skeptical of arguments by copyright owners about the utility of copyright licensing as a solution instead of fair use. She noted: "Licensing is not a realistic option for most artists and communities who rely on fair use." Novik observed: "On the purely practical level, the vast majority of remix artists doing non-commercial work simply don't have any of the resources to get a license — not money, not time, not access." She stressed: "And speaking as a copyright holder, licensing is not a realistic option for most of us on the other side of the problem either." Novik commented: "I very much don't want the difficulty and legal risk and expense involved in coming up with a license and issuing one to everyone who would like to write their own story about becoming a dragon captain in the Temeraire universe." She emphasized: "And more importantly, licensing still doesn't work even if the practical considerations are removed, because licensing invariably stifles transformative work."

Naomi Novik was concerned about the impact of copyright lawsuits on remix artists. She pleaded:

I would ask Congress to make it easier for developing artists, who are often at a significant disadvantage currently, to exercise their fair use right. I have never received a cease­and­desist letter. But some of my fellow remix artists have, despite the fact that their work was completely noncommercial and highly transformative. It drove several of them completely out of the community and caused them to stop sharing their work, or it stopped them creating it at all. Virtually every remix video artist I know (including myself) has had their videos taken down from multiple platforms by automated systems that look for even minute fragments of copyrighted work. In order to restore them, if that's even possible, they have had to file counter­complaints in the face of terrifying automated warnings telling them that they could be fined enormous amounts of money, and making them feel like criminals.

She lamented the destruction of remix culture: "I have gone hunting for stories and art and videos that were so good they stuck in my mind even years later, only to find out that they had been yanked down and were effectively destroyed." In this context, there is a need for Fair Use Projects to ensure that creative artists have legal support, so that they can exercise their fair use rights.

In conclusion, Novik emphasized the importance of the defense of fair use to remix culture, amateur production, and fan fiction:

Our country is the world leader in innovation because here we ask those what if questions, and we are free to imagine what the answers look like. We're encouraged to look around us at the things that exist and imagine how we could make them better, how we could take them to the next level, how we could transform them.

That is the spirit behind fair use. Fair use invites us to tinker and transform, and it frees us to explore ideas and share them with one another. It gives new artists and creators more tools to play with early in their careers and facilitates the evolution of genres and new forms. Any narrowing of fair use is inimical to this spirit.

The eloquent submission of Novik was an important reminder that the defense of fair use plays a critical role in encouraging artistic expression, creative freedom, and cultural sharing.

Unfortunately, creative artists in other jurisdictions do not necessarily have the flexibilities of the defense of fair use under copyright law. In Australia, there has been much policy debate about the inadequacies of the current defense of fair dealing, which is limited to specific purposes. Notably, in the "Kookaburra" case, Men at Work's classic Australian anthem, "Down Under", was found to have infringed the copyright in a Girl Guide campfire song about kookaburras. This has led to much debate as to whether there should be a modernization of Australian copyright law, and the introduction of a defense of fair use.

The IT Pricing Inquiry, and the Australian Law Reform Commission heard a range of evidence, supporting the introduction of such a defense into Australian law. The new Conservative Government, though, seems antagonistic to law reform in respect of copyright exceptions. The new Attorney-General, George Brandis, has been sympathetic to the demands of copyright owners for stronger measures with respect to copyright enforcement.

Furthermore, there is a need to ensure that remix culture, fan fiction, and mash-ups are not penalized under the proposed Intellectual Property Chapter of the Trans-Pacific Partnership.

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Filed Under: copyright, fair use, naomi novik, peter jaszi

Fair Use Protects Some Uses, But It Is Still Way Too Weak To Be Effective For Many

from the we-need-to-exercise-it,-but-it's-still-scary dept

A few weeks back, we wrote about Andy Baio's excellent video concerning the limits of fair use, in particular his awful and soul-wrenching experience being sued for infringement in a situation that was almost certainly fair use. Baio eventually settled for $32,000 rather than deal with a long and expensive trial that might end poorly. Baio points out that even when we have fair use, the fact that you can still be sued and can still have to fight your way through the court system is incredibly scary, and creates a chilling effect on creativity.

Following that, Pat Aufderheide, one of the world's foremost experts on fair use, and someone we've discussed before, wrote a response to Andy's presentation challenging some of the claims he made, and arguing that people need to strongly exercise their fair use rights and that we shouldn't be fearful of such lawsuits. Aufderheide, along with Peter Jaszi, have been creating "best practice" guides in fair use for creators to rely on, hoping that having some clear and accepted guidelines will help creators more confidently express and use their fair use rights.

What happened to Andy Baio is creepy. But Andy inadvertently is making things even worse. He generalizes dangerously from his experience, and spreads wild and false charges in the last part of his presentation. The chilling effects of his talk could be considerable.

He claims, astonishingly, that “fair use is not a law.” Uh, it’s section 107 of the Copyright Act. Like other parts of the law that protect free expression, it is applied by courts case by case; you exercise it in context, and courts take that context into account.  That doesn’t make it “not a law,” nor does it make it impossible to apply. Creative people make judgments all the time about whether our works are obscene, libelous or treasonous, for example; there are no bright lines there, either, but we act with confidence, knowing the law is on our side.

True and False.

Andy warns ominously that “anyone can sue you for anything, always, and even without grounds.” Yup. That is true, and just as true for obscenity, libel, or treason charges, and in a million other places in life. If someone slips on the sidewalk in front of your house after a snowstorm, or chokes on an appetizer at your dinner party, or objects to your choice of lawn furniture, they can sue you. Copyright trolls like Prenda are suing people who have done nothing at all. But we somehow conduct our lives and even have dinner parties knowing this ugly reality.

He warns fellow remixers everywhere, “fair use will not save you,” and “nothing you have ever made is fair use.”  Whoa. Neither of these statements is true.

When two people who I normally agree with are in disagreement with each other, I sit up and take careful notice. It surprised me at first to see these two clear supporters of remix culture and of fair use disagreeing so vehemently with each other. I think they both make points that are correct, as well as points that are exaggerated for effect. I think that the two would actually agree more than they disagree, and the disagreements are much more in the margin than is implied above.

While Aufderheide is correct that there are lots of things that people can sue you over, those kinds of lawsuits are not the same as what Baio was talking about, in a few ways. First, the statutory damages associated with copyright are so out of line with any potential harm created by the situations that Baio is talking about. If the requirement involved some showing of actual damages and/or much lower statutory damages, I would be more inclined to agree with Aufderheide on this point. Second, while she is correct that fair use has been "riding high" in a number of court cases lately, that is not always the case. Fair use determinations by courts quite frequently have the appearance of arbitrariness. I've seen copyright lawyers note that it is possible to make the four factors test in fair use come out on either side in almost any case if you really want to. That uncertainty and that risk is a concern.

I applaud, wholeheartedly, Aufderheide and Jaszi's tireless work at reducing that uncertainty with their attempts to "reclaim fair use." And I hope that one day, the uncertainty will be greatly minimized. But we really are just not there yet. Baio's case is hardly an outlier.

As for Baio's claim about fair use and the law, he was making an inexact statement that within the context did, in fact, make sense. Yes, fair use is a part of the law, but copyright maximalists, and some courts, have treated it merely as a defense, rather than a direct right. This is almost certainly a misreading of the law, because the law states clearly that a fair use is not an infringement ("the fair use of a copyrighted work... is not an infringement of copyright") but if fair use is merely a defense than there would have to first be infringement. So, clearly the courts have misread the law there. However, Baio's statement was about the practical reality of this, in that in order for him to plead fair use, he effectively has to go through a full legal process, which is timely, costly and risky.

I agree that we need to "reclaim" fair use and that one way to do this is to continue to exercise those rights. But I don't think it's right to suggest that relying on fair use is a guaranteed safe place under the interpretations of the law today. Should it be? Yes. Should we strive to drive the law and the judicial decisions in a way that establishes a clear safe place for fair use to occur? Absolutely. And while Aufderheide and Jaszi have done incredible work on that front, the points Baio made still ring true for the vast majority of people who might face the threat of a copyright infringement case concerning a fair use remix, or another transformation of a copyright-covered work.

Filed Under: andy baio, fair use, pat aufderheide, peter jaszi

The Case For Copyright Reform: Techdirt Book Club

from the let's-discuss dept

First off, a reminder that this Friday, at 1pm PT (4pm ET), we'll be hosting a live Q&A concerning the Techdirt Book Club book for May, Reclaiming Fair Use by Patricia Aufderheide and Peter Jaszi. If you want to see the first excerpt, the second excerpt, the third excerpt and the fourth excerpt go check them out. Patricia will be joining us for the Q&A on Friday, so get your questions ready.

And, with that I wanted to introduce the June book, which is The Case for Copyright Reform, by Rick Falkvinge and Christian Engstrom. This time, I don't have to include an excerpt, because you can download the whole thing for free in a variety of different formats. Of course, you can also buy a physical copy if you'd like to.

And... then you can do whatever you want with it, as the authors have explicitly declared that they retain no copyright in the works, and you are free to do with it what you will. Just to whet your appetite, I'm still going to include a very brief excerpt of just the first few paragraphs, which highlights the key point of the book. Rick and Christian will be joining us for a (I expect, lively) chat at the end of the month as well. Anyway, here's the excerpt:

Today’s copyright legislation is out of balance, and out of tune with the times. It has turned an entire generation of young people into criminals in the eyes of the law, in a futile attempt at stopping technological development. Yet file sharing has continued to grow exponentially. Neither propaganda, fear tactics, nor ever harsher laws have been able to stop the development.

It is impossible to enforce the ban against non-commercial file sharing without infringing on fundamental human rights. As long as there are ways for citizens to communicate in private, they will be used to share copyrighted materials. The only way to even try to limit file sharing is to remove the right to private communication. In the last decade, this is the direction that copyright enforcement legislation has moved in, under pressure from big business lobbyists who see their monopolies under threat. We need to reverse this trend to safeguard fundamental rights.

At the same time, we want a society where culture flourishes, and where artists and creative people have a chance to make a living as cultural workers. Fortunately, there is no contradiction between file sharing and culture. This is something we know from a decade’s experience of massive file sharing on the Internet.

In the economic statistics, we can see that household spending on culture and entertainment is slowly increasing year by year. If we spend less money on buying CDs, we spend more on something else, such as going to live concerts. This is great news for artists. An artist will typically get 5-7% of the revenues from a CD, but 50% of the revenues from a concert. The record companies lose out, but this is only because they are no longer adding any value.

It may well be that it will become more difficult to make money within some parts of the cultural sector, but if so, it will become easier in some others – including new ones, that we have not even imagined so far. But as long as the total household spending on culture continues to be on the same level or rising, nobody can claim that artists in general will have anything to lose from a reformed copyright.

Should this also have the side effect of loosening up some of the grip that the big distributors have over cultural life, then so much the better for both artists and consumers.

Filed Under: book club, christian engstrom, copyright reform, fair use, patricia aufderheide, peter jaszi, rick falkvinge

Myths And Realities About Fair Use

from the and-a-quiz dept

Here's the final excerpt from our Techdirt Book Club selection for May, Reclaiming Fair Use by Patricia Aufderheide and Peter Jaszi. If you want to see the first excerpt, the second excerpt and the third excerpt go check them out.

Also, Patricia will be joining us for a live Q&A discussion session about the book on Friday, June 8th at 1pm PT/4pm ET. If you have some initial questions, you can post them below or on the Step 2 discussion page, and we'll try to incorporate them into the Q&A.

Myths and Realities about Fair Use

MYTH: Fair Use is only valid when it is non-commercial.

REALITY: Fair use is designed to expand the range of cultural production, not just the range of non-commercial cultural production. Almost all the occasional litigation on fair use, which has determined this legal trend of interpretation, has been over commercial uses. (Generally lawsuits aren't begun if there is no money to be gained.) Fair uses can be made of copyrighted material in any commercial context, so long as the “four factors” of consideration tilt toward the value of new contributions to culture against the cost to current owners. Currently the simplest calculation, the one preferred by the courts, is to find transformation (reuse for a different purpose), and to make sure that only as much of the original has been used as is necessary for the transformation; this is best done with a justification for the habits and practices of a particular creative or user community.

MYTH: Any non-commercial use is fair.

REALITY: Who's it hurting, right? That's a common argument, especially among vidders, remixers, and other creators in the online video environment, but the law doesn't in fact exempt non-commercial uses. The law does privilege such uses in some cases, but you will unfortunately today be in a grey zone if you lean exclusively on the fact that you're not selling your work. That's especially true in online situations, where you may not be making money off your work but somebody else is—usually an advertiser placing ads on a site, or a data miner. (There is no legal definition of “non-commercial.”) Besides, giving work away that contains valuable pieces of other people’s work can indeed hurt someone else’s pocketbook. If you have a legitimate fair use claim, that pocketbook problem can be overridden (depending on how severe it is). Simply not making money does not give you a fair use pass.

MYTH: Fair use is always valid if you're using it in an educational context, and especially within a classroom.

REALITY: Being a good guy is not necessarily enough. Educational uses have their own special exemptions, but fair use in any educational context will have to abide by the same logic as in other contexts. But because fair use analysis is always done, implicitly or explicitly, within the context of a community of practice, you can refer to the mission and needs of your field. Educational contexts provide some very easy justifications for transformation (such as that students are analyzing the content). Educators need to pay particular attention to their claims to fair use if they are using commercial materials explicitly designed for their educational environment. In that case, an educator's use might not be transformative. Sometimes codes of best practices apply; for instance, media literacy teachers can consult the Code of Best Practices in Fair Use for Media Literacy Education (centerforsocialmedia.org/fair-use/best-practices/media-literacy).

MYTH: Fair use is only about criticism and commentary, like parody for example.

REALITY: Criticism, commentary, satire and parody are all great examples of ways in which copyrighted material is reused for a different purpose than for its original market, in the process of creating more culture. (How does satire differ from parody? They are closely related. Parody holds up to usually-funny commentary a particular work. Satire pokes usually ironic fun at anything including behavior.) But they are not the only kinds of activities that qualify as transformative fair use. Pastiche without a specific point to make—a collage or mashup--can also be a fair use. So might quotation for discussion--and much more.

MYTH: Fair use is “the right to hire a lawyer.”

REALITY: In fact, fair use is no vaguer or unclear than other rights of free expression. Like with questions of libel, indecency or obscenity, there are clear areas of comfort and safety, marginal or risky areas, and troublesome areas. Most people most of the time know where they are. Your greatest comfort is in knowing that your peers in a community of practice have already agreed upon standards of interpretation. Many people have taken the comment of legal scholar Lawrence Lessig, made at the beginning of the 21st century, that “fair use is only the right to hire a lawyer” at face value and repeated it many times since. But Lessig made that remark before the beginning of the current fair use movement, which has greatly clarified safe interpretations of fair use for many communities. Indeed, he made that before he himself founded the Fair Use Project at Stanford, which encourages wider interpretation of fair use.

MYTH: Fair use needs a really good “test case” in the courts, to set precedent.

REALITY: There are several reasons why we shouldn’t wait for litigation to improve our access to fair use. First, fair use is only occasionally litigated; this is particularly true now, since fair use is regarded with such favor by judges. Copyright holders with good lawyers understand that any greater record of the useability of fair use is not good for their side. Second, any particular lawsuit may be an outlier in any direction to a trend. Third, when you initiate a lawsuit, much can happen that confuses or changes the story, muddying the judgment you wanted to get. For instance, the artist Shepard Fairey seemed to have a very clear fair use right to use a photograph of Barack Obama for a poster. But during preparations for the trial, he admitted lying about the photograph he used, creating great distrust and prejudicing his case. Far better than waiting for a definitive “test case” is establishing clear standards of interpretation. Such standards can be highly useful in any ensuing litigation.

MYTH: Fair use is too dangerous; even if you win a lawsuit, your life and finances could be ruined.

REALITY This is a conclusion that is drawn from two common but unfortunate practices: looking only at lawsuits, not at practice; and lumping together all kinds of intellectual property conflicts. If you only look at lawsuits, you will only see danger. If you look at lawsuits in context, you will see them as the very occasional and circumscribed circumstance in a wide sea of perfectly legal and uncontested practice. In reality, people are employing fair use casually and comfortably every single day across the nation, often without thinking about it, and get no trouble at all. They are in the safe-harbor areas of fair use. You can understand what those are as well. In the rare event of a copyright lawsuit, defendants have a solid phalanx of pro-bono lawyers who are eager to litigate on fair use, including Stanford Fair Use Project, the ACLU, EFF, and some intellectual property clinics. Courts strongly encourage settlement and discourage trials. Anyone who proceeds with litigation has rejected plenty of opportunities to settle. If defendants decide they do not want to proceed, they will get plenty of opportunities to settle for relatively small costs. But the most important thing to remember is that lawsuits are extremely rare, the exception to the rule.

People frequently confuse one kind of danger with another. For instance, the RIAA has sued a clutch of average-citizen downloaders. The RIAA originally attempted to create enormous publicity and public awareness about the illegality of downloading copyrighted material available for sale by a few strategic lawsuits. These lawsuits proved entirely useless in discouraging downloading, while racking up enormous legal bills for the RIAA and others. But the RIAA's case against downloaders bore no relation to any fair uses. Downloaders were simply accessing material they could buy for free, typically to use in exactly the way it was being marketed. The music industry may be backward- looking, but its legal case was technically sound. It was not grounded in fair use arguments. Fair users do not need to be frightened of RIAA lawsuits.

MYTH: Fair use is just a defense, not a right.

REALITY: Fair use is in fact a right that comes into play once someone accuses you of infringement. At that point, you would respond by saying that you had a right to use that material. Until then, everyone is simply going along minding their own business, creating culture. The right of defense occurs in other contexts as well. For instance, if you are physically attacked, you have the right of self-defense. This right never comes into play until you are both attacked and someone accuses you of hurting them. Then you will invoke your right of self-defense. The fact that fair use is a defense does not make it any less of a right.

MYTH: Fair use is just an interpretation, not part of the law.

REALITY: Fair use is neither new nor a mere interpretation. A 150-year-old feature of the law (and widely exercised before that, without being explicitly invoked), it is a key element of a policy dedicated to promoting culture. Fair use is an essential tool for us to be able to exercise our First Amendment rights.

MYTH: I can't use fair use, because the copyright holders would never agree to it.

REALITY: Fair use is a right that you employ simply by accessing material, copying it and incorporating it into your project within an appropriate context. You do not need to get anyone's permission to do that, and you do not even need to let them know that you did it. Some legitimate and uncontested claims of fair use are even made after one or more attempts to license; the attempt to license may even increase one’s case for fair use, if the material is vital to what you are trying to say. Some people like to alert the people whose work they took, as a gesture of respect or homage, and this act of politeness is very often deeply appreciated. Sometimes they may want to alert a vendor or archives holder of their fair use, because they have an ongoing business relationship that involves licensing, they may want to eliminate ambiguity about the use, and they may want to stay on the best terms possible.

Filed Under: aclu, book club, eff, fair use, free speech, patricia aufderheide, peter jaszi, riaa

How Does Fair Use Fit Into The Critique Of Copyright?

from the reclaiming-fair-use dept

Here is Part II of our excerpt from Chapter 1 of Reframing Fair Use by Patricia Aufderheide and Peter Jaszi, which is our May selection for the Techdirt Book Club. You can read Part I here. We'll have another excerpt soon, and will be scheduling the author chat in the near future.

Fair use was in eclipse for decades, with judges, lawyers, legal scholars, and creators unsure of its interpretation and convinced of its unreliability. Since the late 1990s, fair use has returned to the scene, and has become a sturdy tool for a wide range of creators and users. This transformation has been remarkable; we discuss it in detail in Chapter 5, and provide highlights here.

It happened in part because of changing scholarship. A generation of legal scholars has developed arguments for fair use as they have analyzed copyright’s effect on cultural expression. At the same time, cultural studies scholars have showcased the relevance of fair use to their work, which often involves analyzing popular culture. Teachers and scholars are beginning to take up the fair use banner, publicly using their rights and encouraging their students to do the same.

Settled, established communities of creators, administrators and users—filmmakers, teachers of English and visual art, librarians, makers of open course ware, poets, and dance archivists--have identified fair use as a necessary tool for them to use to achieve their missions. They have turned to the sturdy tool of consensus interpretation, by making codes of best practices in fair use through their professional associations.

Members of these communities have become active advocates for fair use. Their organizations and representatives have appeared before the Copyright Office to testify about the way that the DMCA, which makes illegal the breaking of encryption on DVDs, limits their ability to employ fair use in their work.

Remix artists of all kinds, working online, have come to adopt the claim of fair use as an anti-corporate banner. They trade information on fair use in conferences and conventions. When they receive takedown notices on YouTube, they issue counter-takedown notices and explain why their uses are fair. Remixers have also gone before the Copyright Office to protest the way that the DMCA impedes their creations, which are often socially critical.

New businesses have flourished employing fair use, and their trade associations have supported them. Google, the Consumer Electronics Association, and the Computer and Communications Industry Association have all advocated for fair use. Legal and professional services for communities of practice, such as lawyers and web developers, have built their fair use expertise to serve their clients better.

Think tanks and advocacy organizations have promoted fair use. The Electronic Frontier Foundation, Public Knowledge, the American Civil Liberties Union, Duke University’s Center for the Study of the Public Domain and the Stanford Fair Use Project have all taken action on fair use. Between the scholars, the creators, artists, and organizations, fair use is emerging out of a twilight existence where, for decades, it had lived. During those decades, many professionals and especially professionals in the corporate media environment—whether broadcast journalism, cable documentary, or newspapers—routinely and extensively employed fair use. But if you weren’t a professional, you might not even have heard of it. That has changed.

The goals of various actors in this resurgence of fair use differ. Some simply want to assert their rights to be able to improve their work, lower their costs and start or grow new businesses. Some want to expand the sphere of freedom of expression, so that copyrighted culture does not become off-limits for new work. Some believe that an expansion of fair use rights is imperative both to keep fair use as copyright policy is tinkered with, and to maintain the crucial principle of balance between owners’ rights and the society’s investment in new cultural creation. Some believe that fair use, exercised to the maximum, will provide concrete experience of the limitations of today’s copyright law, and point to more effective change. They all share a common understanding that individual and community action simply to assert their rights has an immediate and long-range effect on markets and policy.

The resurgence of fair use, the topic of this book, forms part of a much greater discourse in the U.S. and world-wide, critiquing the most stifling, confining features of copyright practice today. That discourse is variously called copyright reform, copyfighting, the copyleft, and cultural/creative/intellectual commons, depending on your angle of entry. Some people call it a movement, though it still lacks evidence of broad social mobilization (as Patrick Burkart has noted for music). The people in this discourse share an acute awareness that copyright policy and practice are tilted unfairly toward ownership rights, in a way that prejudices the health and growth of culture. This broader discourse is evident in many ways, besides the efforts to make fair use more useable: proposals for formal copyright reform; efforts to create copyright-light or copyright-free zones or to expand the public domain; and civil disobedience.

Some propose copyright reform to shrink the monopoly claims of owners. Veteran legal scholar Pamela Samuelson has proposed reconceptualizing copyright law from a blank slate. She imagines a simpler, shorter copyright law, grounded in principles rather than the “obese Frankenstein monster” it has become through stakeholder pressure and endless tinkering. Neil Netanel has proposed a range of tweaks to pull back the extent of copyright protection, such as limiting copyright length and dropping protection against the preparation of derivative work, so that less licensing is needed. Lawrence Lessig also has argued for simplifying and minimizing copyright protection for owners.

Some people offer suggestions to improve the efficiency of licensing, which today is messy, clumsy, and frustrating. Prof. David Lange, for instance, proposed increased use of statutory (or compulsory) licensing schemes, such those that allow today for the retransmission of TV signals by cable and satellite systems. Others have suggested new voluntary digital platforms through which users could make “micro-payments,” tiny payments for each individual access to copyrighted material offered commercially. Legal scholar William Fisher has proposed a voluntary collective administration system, akin to those that today enable public performances and broadcasts of music, and to collect licensing payments through Internet service providers and distribute them to copyright owners and artists whose material is used online. Some copyright owners, including the Association of Commercial Stock Images Licensors, are even toying with how to restructure their own licensing schemes, to eliminate archaisms such as regional rights in a transnational Internet age.

The ideas and projects all respond to the real problem that copyright law now fits ever more poorly the way people are actually making culture. They may well take some time to become useful, though. The big stumbling block both to fundamental copyright reform and to licensing reform is that large copyright holders—key stakeholders in any change in licensing schemes—are not able to agree on what they would like to do. They do not know what business models will be most relevant in a few years, so living with a lumbering, archaic licensing system with a lot of holes in it looks better to them than change that might have unanticipated downsides. As major stakeholders in any legislative reform, they will stall, derail or rewrite legislation in the same unbalanced direction as today, until their interests shift with shifting business models. As major actors in licensing, they will collaborate on new methods of licensing when they understand how emerging business models favor their interests.

Another part of this broad copyright critique is a range of efforts to expand copyright-free and copyright-light zones, discussed by David Bollier and James Boyle. People in this arena often invoke the phrases “the public domain,” “open access,” and “Creative Commons.” Projects such as open source software (collaboratively created and freely offered software), open source (free and accessible to all) academic and scientific journals and databases, and OpenCourseWare (freely available curriculum materials) offer such alternative zones. The various Creative Commons licenses contribute to this alternative zone by offering a way for creators to give their work away more easily, although with conditions, by labelling it appropriately.

These efforts have indeed created significant copyright-light zones, as well as creating enormous enthusiasm for a more flexible copyright policy. They work well for people who want to give their work away and share it without economic reward. A pool of noncommercial works now exists, but it is tiny compared with the field of copyrighted and often-commercial work. Viacom and News Corp will continue to copyright their holdings and treat them as assets. The existence of copyright- light zones, however large, does not address the frequent need that people have to access mass commercial culture to make new cultural expression.

Finally, copyright critique is seen in opposition and resistance, such as giddy, open flouting of copyright law by “culture jammers,” pranksters and appropriation artists. Burkart describes this work as part of the incipient and still-inchoate cyberliberties social movement, taking up “the politics of symbolic action,” typically “weapons of the weak.” These people and groups—Negativeland, the Yes Men, Adbusters magazine and others—position themselves on the margins of official culture, and see themselves as reclaiming culture one image or gesture at a time. They also see themselves as challenging the terms of long and strong copyright. Ironically, many times the uses they make of copyrighted material are actually completely legal fair uses.

This broad and diverse discourse calling for changes in long and strong copyright thus has many faces and approaches, each with opportunities and limitations. They add up to a broad public awareness of trouble around long and strong copyright. Within this discourse, efforts to make fair use more useable stand out because they can be done now, by people in many walks of life; they can be publicized and celebrated, thus spreading the word; and because using this right expands its range of uses.

Fair use is not necessarily a popular phrase for all in this broader collection of copyright critics. Some regard it as hopelessly compromised because of technologies such as encryption, which override a user’s will to excerpt. Some believe that exemptions such as fair use are good but that fair use is too murky or unclear to be a helpful exemption. Some believe that fair use partakes too much of the status quo, and that another copyright-free world is possible. One way that concern is expressed is to argue that it is too limited a doctrine, and that we need to reach beyond it to accomplish our goals.

In fact, under the current interpretation, fair use does apply in a wide variety of situations. They range from making copies of TV programs on our DVRs to creating digitally annotated critical texts to making an archive of the worst music videos ever to making relevant curriculum digitally available to students. Fair use has evolved, having different functions at different moments in U.S. history. Today it has an ever-growing importance and value within copyright, as a primary vehicle to restore copyright to its constitutional purpose, and the transformativeness standard assists in creating that value. Fair use is like a muscle; unused, it atrophies and exercise makes it grow. Its future is open; vigorous exercise will not break fair use.

Fair use will continue to be important, no matter what the success of other aspects of long and strong copyright protests and proposals. Even if we could wave a magic wand and execute reform of copyright policy that rolls back some of the longest, strongest terms in copyright policy, fair use would still be an important tool to free up recent culture for referencing in new work. Even if licensing were much easier than it is today, it would never address all the needs people have for use of copyrighted material. Even if copyright-light zones vastly expanded, the need to access the copyrighted material existing outside those zones without permission or payment would still remain. Sometimes people need to use materials that the copyright owner simply will not license to them. Fair use will be important to anyone working in the cultural mainstream. Culture jamming can be fun, although some culture jammers are actually just employing their fair use rights without knowing it. But most creators, teachers, learners and sharers of information don’t see themselves as criminals or pirates, and don’t want to.

Reclaiming fair use plays a particular and powerful role in the broader range of activities that evidence the poor fit between today's copyright policy and today's creative practices. In a world where the public domain has shrunk drastically, it creates a highly valuable, contextually defined, “floating” public domain. The assertion of fair use is part of a larger project of reclaiming the full meaning of copyright policy—not merely protection for owners but the nurturing of creativity, learning, expression. Asserting fair use rights and defending the rights of others to use them is a crucial part of constructing saner copyright policy.

Filed Under: book club, culture jamming, education, excerpt, fair use, patricia aufderheide, peter jaszi, remix

Combating The Culture Of Fear And Doubt By Reclaiming Fair Use! (Techdirt's May Book Club Choice)

from the fair-use-matters dept

We're running a bit late with book club related stuff due to my ridiculous travel schedule, but we're going to get back on track. First up, rather than just having Jason Mazzone, the author of April's book club book Copyfraud, do a blog post, we're going to host a live chat here on Techdirt, and that will take place this Friday at noon PT/3pm ET. Just show up on the site then and assuming no technical difficulties, we'll do a Q&A session/chat using the popular CoverItLive platform. If you haven't yet read Copyfraud, please check out the chapter we posted (part one and part two).

As for the book for May, it is the excellent Reclaiming Fair Use by Patricia Aufderheide and Peter Jaszi, two of the most recognized scholars on fair use issue. It's really a great book if you're trying to understand fair use and why it's important. As always, the book is available in lots of places -- with Amazon being a popular one. While I recognize the ebook pricing is still somewhat higher than some folks here think is reasonable, it is at least lower than the last few books. Also, Patricia has granted us permission to re-publish a fair bit of content, which we'll be doing over the coming weeks. Today, we'll kick it off with part of chapter one on The Culture Of Fear And Doubt, and How To Leave It. So with that, we'll jump right into the excerpt from that chapter:

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Gordon Quinn, for forty years a professional filmmaker including as executive producer on the award-winning film Hoop Dreams, was working on a public television program in 2001. New Americans is about the lives of new immigrants to the U.S. In one scene, Israel Nwidor, a Nigerian immigrant trained as a chemical engineer and now working as a cab driver, is listening to a George Strait song in his car when a white guy on a motorcycle pulls alongside and gives him the evil eye. It's one of those little moments that reveal a lot.

Twenty years before, Gordon wouldn't have given the song playing on the speakers another thought. But over the last two decades, he had become hyper-conscious of the copyrighted material in documentaries. Broadcasters and insurers had become hyper-vigilant, demanding assurances that he had licensed every stray bit of copyrighted material. Did the reunited family sing “Happy birthday”? License it. Were the middle-school girls on a sleepover listening to pop songs? License them. Did the little autistic boy love “Puff the Magic Dragon” as a comfort song? License it. And what about those posters on the walls? The books on the shelf?

As a result, Gordon didn't doubt that he would need to license the George Strait song that Israel was nodding along to. Only he knew from experience that he probably wouldn't get an answer to an email sent to the music company. The amount of money involved would be so trivial that the music company's licensing executives wouldn't even respond.

So Gordon cut out the scene. Nobody watching it even knew they were missing anything. It was one of a thousand little cuts that nobody knew they were missing, each one of them a silent erasure of a piece of reality.

*

Cyndy Scheibe, a psychology professor at Ithaca College and director of Project Look Sharp, a media literacy initiative, uses comic strips from newspapers and other pieces of popular culture— clips from documentaries, popular films, and print advertisements--in her classes to teach about point of view and representation. Her team at Project Look Sharp has created online curriculum materials about the media’s representation of the Middle East, featuring among other things a clip from the Disney film Aladdin.

Could Cyndy's teaching materials safely be shared with other teachers? Did she dare to put it on an open website? The Ithaca College legal experts and administrators were divided, and finally demanded that both Cyndy and her colleague Chris Sperry personally pledge their willingness to go to court to defend themselves should their use of unlicensed copyrighted material be litigated. Cyndy and Chris gambled, and let the site go up. They erred on the side of caution where they could. For one exercise that involved comparisons of covers of the magazine Newsweek, they tried to license the covers from the news corporation. But the company would not license them for an appropriate fee, and furthermore, the company told them, Cyndy and Chris would also have had to negotiate with the subjects of the covers. The company spokesperson was actually talking about two kinds of rights: the company’s copyright, and the celebrities’ right of publicity. Cyndy and Chris believed, correctly, that they did not need to get permission from the likes of Osama bin Laden, since they had a First Amendment right that overrode any publicity claims he could make. As for the copyright claims, they decided to use the magazine covers under fair use; they and their university counsel believed there was no question.

Even when they were sure they were within the law, though, Cyndy and Chris were given pause by what they’d heard in the rumor mill. That little clip from Aladdin—did that put them in jeopardy from the Disney Corporation? They’d heard that Disney was wildly litigious. They finally added that clip to the website, and held their breaths.

They were relieved to see Project Look Sharp be widely used, and even more relieved as the threat of litigation failed to emerge. They had pledged if necessary to loot their 401(k)’s for legal funds to defend their rights to reference their own culture, and--for now--they thought they didn't have to.

Filed Under: book club, copyfraud, fair use, free speech, patricia aufderheide, peter jaszi