Musings on Fair Use
When I was doing so much copyright-related writing that I felt the need to split it into four parts, I separated balancing rights (©3) from locking down (©4). That’s really not a workable split, and most copyright coverage (what there is of it—it’s been more than a year!) is likely to return to Copyright Currents.
It felt like a good time to review commentaries on fair use over the past couple of years—but there’s no good way to discuss fair use without, at times, discussing DRM (and DMCA), given the tank-size hole DMCA blows in the heart of fair use. So this piece knows no boundaries. It’s primarily about fair use but brings in DRM, DMCA and, to be sure, our friends at RIAA. (No, I’m not going to discuss Google Book Search. Google abandoned fair use as an argument, which I believe was a tragic decision from a public-good viewpoint, making Google instantly more evil, but a sensible decision from a business perspective. Neither am I going to discuss Amazon’s amazing show of pseudocourage regarding the text-to-speech feature in the Kindle 2—asserting that it’s fair use but abandoning any actual defense of fair use. Pseudocourage is cheap; real courage can be expensive.)
Some folks in Big Media claim that fair use isn’t a law—it’s only a defense against copyright infringement. While fair use is a defense against infringement, it’s also a law. This law, Section 107 of Title 17 of the U.S. Code:
Sec. 107. - Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors
The tank-size hole DMCA blows in the heart of fair use is simple enough. DMCA prohibits products or services that circumvent technological measures that control access—and fair use is explicitly not a defense against DMCA claims regarding access to a work. (According to the law itself, DMCA doesn’t prohibit circumventing measures that control copying—but in the real world that appears to be a distinction without meaning.)
It might be useful to repeat the six exclusive rights granted to copyright owners in Title 17 (Section 106):
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
There are other limitations on these rights in addition to Section 107. For example, Section 108 provides limited exceptions for libraries and archives; Section 109 is, in effect, the First Sale Doctrine (when you buy a copy of a copyright work, you can generally dispose of that copy as you wish, including lending, selling or giving it away); Section 110 exempts some performances and displays, largely for instructional purposes. One difference: the other sections are typically detailed, where Section 107 is brief and vague. But it’s still the law.
Does it matter whether fair use is a defense against infringement or an exception to exclusive rights? Yes, it does—see “Terminology and Dancing Babies” below.
It’s easy to get confused about the relationships among copyright itself, First Sale, DMCA, fair use—and, well, just what you’re buying when you buy “a book” or “a movie.” That’s particularly true given the trend toward copyright maximalism. Sascha Segan wrote “Digg, DVDs, and Spartacus” in the July 17, 2007 PC Magazine and kicked it off with a bang:
When you buy something, you should own it. You should be able to do what you want with it—as long as what you’re doing is personal and private. Unfortunately, there’s a law that says otherwise, and many Americans have finally reached the point where they’re going to stand up and take real action against this law, rather than just complain about it. The question is whether the big media corporations will side with the people.
Well, no, that’s not really the question—it’s already clear that some of Big Media is saying “the law” (DMCA) doesn’t go far enough and wants even more restrictions on what you can do with your own stuff. Still, Segan makes it clear in the pull quote: “If I buy The Matrix on an HD DVD, I should be able to rip it, convert it to Xvid format, and watch it on my laptop. There shouldn’t be anything illegal about that. But there is.”
Segan isn’t a pirate and doesn’t condone piracy. “Content creators should be paid for their work. But the balance between consumers and content ‘owners’ has gotten way out of whack.” Recognizing the imbalance is a start.
There are three issues here:
· Whether you “buy The Matrix” or whether you buy a disc that contains The Matrix.
· Whether there’s a useful distinction between access and copying for digital media.
· Whether “shifting” of all sorts (time shifting, place shifting, device shifting) is or should be covered by the First Sale doctrine.
Big Media argues that you’re not buying The Matrix—you’re buying a disc that contains the movie. While you have First Sale rights for that disc (you can give it away, lend it, sell it), you have no such rights for the movie itself.
When you shift—when you rip the movie to computer or convert it to a different format—you’re shifting the movie, not the disc. And it doesn’t work like Star Trek transporters: Shifting the movie to your notebook computer does not destroy the disc. There are now (at least) two copies of the movie that can be watched by more than one person simultaneously. Is that legitimate? Should it be?
Is there a useful distinction between access and copying when it comes to digital media? Perhaps not. Although DMCA theoretically doesn’t prohibit circumvention to allow copying—at least when the copying is for fair use purposes—by preventing circumvention for access, it effectively does the same thing.
Two years later, it’s easy to say that Segan overestimated the willingness of Americans to “take real action” (other than illicit copying). Should DMCA be modified at least so that I could legally make a digital copy of a two-second clip from a movie to include in a review, a classic form of fair use? Should it be modified enough to allow the shifting Segan wants? I’m not sure of my own answers to those questions. The rest of this scattered commentary will note some points along the way.
For some time, the good news about copyright-related legislation has been that attempts to tilt the balance even further towards Big Media and rightsholders have (generally) stalled. The bad news? Attempts to restore some balance or deal with issues that discourage progress in the sciences and arts (what copyright’s supposed to promote) have also stalled.
Rich Boucher (D-VA) has for years attempted to introduce balancing legislation. In the early years of the millennium, Boucher introduced bills that would explicitly apply Section 107 to DMCA—that is, make it legal to circumvent protections for fair use purposes. Those bills were swatted down with little difficulty.
In 2007, Boucher introduced another version (cosponsored by Charlie Wyatt, R-California, and Zoe Lofgren, D-Silicon Valley), this time with help from that mysterious group that crafts acronymic bill names. This one, HR 1201, was the Freedom and Innovation Revitalizing U.S. Entrepreneurship act—or FAIR USE. FAIR USE did not establish a fair use defense to circumvention. Instead, it made specific changes. To quote a summary from Boucher’s website:
The legislation instead contains specific exemptions to section 1201 of the Digital Millennium Copyright Act which do not pose a comparable potential threat to their business models. For example, the proposed legislation would codify the decision by the Register of Copyrights, as affirmed in a determination made by the Librarian of Congress under section 1201(a)(1) of the DMCA, to allow consumers to “circumvent” digital locks in six discrete areas. The bill also contains narrowly crafted additional exemptions that are a natural extension of these exemptions.
Other new elements of bill include limiting the availability of statutory damages against individuals and firms who may be found to have engaged in contributory infringement, inducement of infringement, vicarious liability or other indirect infringement. A more narrowly crafted provision codifying the Supreme Court’s Betamax decision to eliminate any uncertainty about a potential negative impact on the Supreme Court’s holding in the Grokster case is also contained in the legislation.
Finally, given the central role that libraries and archives play in our society in ensuring free speech and continuing access to creative works, the bill includes a provision to ensure that they can circumvent a digital lock to preserve or secure a copy of a work or replace a copy that is damaged, deteriorating, lost, or stolen.
The six discrete areas? Alex Curtis did a nice job of annotating them in a March 5, 2007 post at PublicKnowledge. His comments, with provisions doubly indented.
(i) an act of circumvention that is carried out solely for the purpose of making a compilation of portions of audiovisual works in the collection of a library or archives for educational use in a classroom by an instructor;
This DMCA limitation is very pinpointed, and similar to one newly granted by the Copyright Office itself during the DMCA exemption hearings. It’s going to be hard for folks to argue against libraries, archives, or professors.
(ii) an act of circumvention that is carried out solely for the purpose of enabling a person to skip past or to avoid commercial or personally objectionable content in an audiovisual work;
This limitation is similar to one proposed and passed into law in 2005. This would put the limitation squarely in copyright law. It also puts the content industry in the unenviable position of saying that consumers shouldn’t be able to fast-forward through commercials or objectionable content.
(iii) an act of circumvention that is carried out solely for the purpose of enabling a person to transmit a work over a home or personal network, except that this exemption does not apply to the circumvention of a technological measure to the extent that it prevents uploading of the work to the Internet for mass, indiscriminate redistribution;
A limitation for home and personal networking, expressly forbidding willy-nilly Internet distribution. The content industry is going to have to be creative when they tell consumers and legislators why they should have to buy specialized copies of their digital media for every device, when the content can be transfered easily in these limited environments, without the fear of piracy.
(iv) an act of circumvention that is carried out solely for the purpose of gaining access to one or more works in the public domain that are included in a compilation consisting primarily of works in the public domain;
Using copyright law, DMCA or not, to protect something you don’t even own, like works in the public domain, is reprehensible. Go ahead, try and defend it.
(v) an act of circumvention that is carried out to gain access to a work of substantial public interest solely for purposes of criticism, comment, news reporting, scholarship, or research; or
Ahh…this is more like what we know of as fair use. It’s a limited view of it, but it’s very straight-forward, and thus, harder to argue against.
(vi) an act of circumvention that is carried out solely for the purpose of enabling a library or archives meeting the requirements of section 108(a)(2), with respect to works included in its collection, to preserve or secure a copy or to replace a copy that is damaged, deteriorating, lost, or stolen.”
Preventing digitally protected works from being lost due to deterioration of media is a problem that Brewster Kahle has been asking the Copyright Office to address. Instead of being a temporary DMCA exemption, this one would be permanent. And again, hard to argue against.
Curtin believed this bill had a good chance of enactment. (AALL, ALA, ARL and the Consumer Electronics Association, among others, backed it.) So what happened? It was referred to subcommittee on March 19, 2007—and never heard from again during that session of Congress, which ended at the end of 2008. It probably didn’t help that, for example, Ars Technica essentially dismissed the bill as half a loaf. As usual, the result was no result. Will something like it—or something that would actually restore fair use—be reintroduced? Not so far.
Doug Johnson, Director of Media and Technology for the Mankato (MN) Public Schools, runs a first-rate blog on school technology and library issues—The Blue Skunk Blog (doug-johnson.squarespace.com/blue-skunk-blog/). He writes about fair use a lot. I’ll just note some items since early April 2008, when Johnson posted “Paradox land” and began a series of posts on “Changing how we teach copyright” and, later, fair use scenarios.
Johnson begins this April 7, 2008 post with two images from Eric Faden’s “A Fair(y) Use Tale”—the standard FBI copyright infringement warning on the left, a modified version on the right. The heart of the modified warning:
Federal law allows citizens to reproduce, distribute, or exhibit portions of copyrighted motion pictures, video tapes, or video discs under certain circumstances without authorization by the copyright holder.
This infringement of copyright is called “fair use” and is allowed for purposes of criticism, news reporting, teaching, and parody.
That’s a narrow modification, intended to ape the FBI warning itself. (Isn’t it interesting that publishers don’t see fit to include an ominous FBI seal on the copyright pages of books and magazines—or for that matter on CD labels?) It’s too bad that Faden’s version uses the word “infringement”—wouldn’t it be better to call it a “limitation on copyright” or “exception to copyright”?
Johnson is proposing that educators change their approach to using—and teaching about—intellectual property, but found himself thinking about paradoxes and contradictions in this area (he’d been writing other copyright-related posts, resulting in lively conversations). Some of the issues, with my (unindented) comments as appropriate):
While intellectual property, especially in digital formats, becomes an increasingly important “wealth generator” throughout the world, the laws surrounding it are becoming less understandable, more complex, and less relevant, especially to this generation of re-mixers and content-sharers.
The term intellectual property biases the discussion. Maybe Johnson should stick to copyright—and avoid “property” as a biasing term.
While today’s students want to use others’ digital works, often without regard to the legal protections they may carry, many of these students’ own creative efforts will be the source of their incomes and they will need a means of protecting their own work and want others to respect intellectual property laws.
This is a classic paradox—but also a difference between some copyright protection and maximalist copyright protection. If a student (or teacher!) thinks they deserve more protection for their “creations” (almost never 100% original) than they’re willing to grant others, they’re either ignorant, ethically challenged or hypocritical. There’s a vast middle ground: Balanced copyright.
While protection of individual property rights is given legal precedence, many argue there is a moral precedent and there may be economic value to placing all intellectual works into the public domain as soon as possible.
Yes, I’ll argue that—there is absolutely economic value in making works available for others to use and build on. But I would define “as soon as possible” to mean “as soon as the creator has had a reasonable time to benefit from exclusive rights over their creation.”
Prohibitions are ubiquitous on media, but the warnings disregard fair use and may not be legal. Case law related to the use of digital media is scarce. Technology changes faster than the legal system can keep up.
These are key points. Are some warnings actually copyfraud—and would it be reasonable to make copyfraud a crime? Unfortunately, the case law on fair use is so thin as to be nearly useless.
While librarians are considered the copyright experts in their buildings, they too often become the copyright “cops” instead. The experts on whom practicing librarians reply give “safe” advice that tends to honor the rights of intellectual property owners, not consumers.
Another key point: If experts tend toward a permission society, practice can become even more unbalanced than the law. I might reword the second sentence, though—good advice can honor both sets of rights (and I much prefer “citizens” to “consumers”). Maybe just “advice that tends to favor the interests of copyright holders over citizens in general”?
Thoughtful teachers and librarians (can fail as) intellectual property use role models by being:
followers of the letter of the law who err on the side of the information producer
or questioners of the legality and ethical value of current law and practices who err of the side of the information consumer
Questioning the ethics of current law and legality of current practices shouldn’t be a problem. Counseling outright disobedience and flaunting outright infringement is something else.
While intellectual property shares many qualities of physical property, it also has unique properties that many of us still struggle to understand. A physical apple and copyright protected song from Apple both may sell for $.99. Your assignment: Compare and contrast the “unauthorized acquisition” in financial, moral, and practical terms.
Why I don’t like the term “intellectual property”—it emphasizes the “property” aspect and it’s really not that simple.
Johnson suggests four changes he’s thinking of recommending. In part:
1. Change the focus of copyright instruction from what is forbidden to what is permitted….
2. When there is doubt, err on the side of the user.
3. Ask the higher ethical questions when the law seems to make little sense…
4. Teach copyright from the point of view of the producer, as well as the consumer.
I find very little to disagree with here, but I’m not a teacher. I do notice that, in this list, Johnson shifts to “copyright” as a term—a much better term than “intellectual property.”
This series of posts began on April 8, 2008 and concluded on April 11, 2008. Particularly if you’re an educator, I heartily recommend the full series, which includes one post on each of the four items above. Here, I’ll focus on items related to fair use and balancing interests.
In Part 1, Johnson cites the term “Hyper-comply,” used in The Cost of Copyright Confusion for Media Literacy (www.centerforsocialmedia.org/files/pdf/Final_CSM_copyright_report.pdf) for the practice of avoiding possible infringement at the expense of fair use (and effective education). Johnson’s assertion—and I find it wholly inarguable:
As information professionals, we have as great an obligation to see that staff and students get as complete access and use from copyrighted materials as possible, as we do in helping make sure they respect copyright laws. Period.
He says teachers need to teach the concepts and tests of fair use and cites some existing fair use guidelines. (I like the preamble to one such set, as it describes fair use as providing “certain limitations on the exclusive rights of copyright holders,” a much more value-neutral term than “defense for infringement.”
One problem with any set of guidelines is the lack of clarity and definitive case law. The Fair Use Guidelines for Educational Multimedia uses fairly typical limits: up to 10% or 3 minutes (whichever is less) of a “motion media” work, up to 10% or 1,000 words (whichever is less) of a textual work, up to 10% or 30 seconds (whichever is less) of music and lyrics…but there’s the surprising claim that “an entire poem of less than 250 words may be used” as long as you don’t use more than three poems by one poet or five poems from an anthology. On the other hand, these are guidelines for a special category: educational multimedia projects that aren’t widely distributed (two use copies, one archival copy) or retained for a long period (no more than two years).
In the second post, Johnson argues that the default assumption should be that use of materials is allowed unless such use is specifically forbidden “and legally established in case law.” He cites the Google Book Project as a case in point; it’s unfortunate that Google abandoned fair use as a defense. He notes that the overbroad “all rights reserved” warning in some books is, in fact, wrong: It attempts to negate fair use. He offers his own district’s policy on copyright as a poor example: “All of the four conditions [of the Fair Use Doctrine] must be totally met to qualify a work for use or duplication under this clause.” That’s not what Section 107 says—not even close.
[T]here is an inherent bias toward copyright owners when copyright “experts” offer advice about particular situations. A lawyer, a book author or columnist who answers question on copyright issues may be held liable for the advice they give—that if proven wrong, may result in litigation, fines or a finding against the person who originated the question. The common advice given becomes “assume the U-turn is illegal.” As one of my college days t-shirts once read, “Question authority!”
That’s a good point—although some of us make a point of saying “I’m not a lawyer and this is not legal advice.” (Nor will I offer specific advice on specific situations in writing; I’d point to Section 107 and say “Think it through.”) Johnson points to some sources that are more inclined to aggressive fair use application—and includes four pieces of advice, one of which I have to take slight issue with:
Place the onus of proof of wrongdoing on the provider, not the proof of fair use by the user.
Assume the U-turn is legal.
Ask forgiveness, not permission.
Unfortunately, the first one may be right ethically but not legally. In practice, it’s pretty much up to a user to demonstrate fair use. Should that be true? I don’t believe so.
One comment on this post points out a problematic paragraph regarding Creative Commons and the assumption that creators have, or desire, exclusive rights. (My own take: If you don’t desire exclusive rights, Creative Commons makes it easy to weaken them—but that should be a conscious act.) That paragraph, though, has nothing to do with fair use.
The third post offers a longer version of the brief statement used earlier—and I like this one better:
Be prepared to answer questions when the law seems to make little sense, when a law is inconsequential, when a law is widely ignored, or when breaking the law may serve a higher moral purpose.
Johnson notes blue laws (restricting commercial activities on Sunday) as parallel to some copyright laws—ones so routinely ignored and badly enforced that they’re largely pointless. Unfortunately, with copyright, “routinely ignored” doesn’t help much if Big Media or some individual rights-holder looking for a jackpot payday comes calling; despite one unfortunate slogan of the EFF, 20 million—or 30 million, or 100 million—downloaders can indeed be wrong.
But should some forms of casual infringement be illegal—and, maybe more important, should they be subject to statutory damages? Johnson cites his son downloading a movie—after his son had paid twice to see the movie in theaters and with plans to buy it when the DVD came out. The son wonders what harm this “infringement” is causing. I’d ask another question: How is it that the penalty could be $250,000, not the $20 (or so) that the DVD would cost? (I know one answer, but it only applies to the source providing the digital copy, not to the downloader.)
Johnson offers an interesting list of common uses regularly interpreted as illegal—but where he regards the illegality as effectively meaningless. Some of them:
Showing movies in class for entertainment or reward without a public performance license.
Playing a commercial radio station that plays popular music in a public venue, including classrooms and gymnasiums.
Making a diligent effort to contact a work’s owner with no response and then using the work.
Converting 16mm films or videotapes that are not available for purchase into DVD to a newer format.
Making copies of copyrighted materials of online resources (that can be read online without cost) for classes.
I’d suggest that “or reward” makes the first one ambiguous—and that the third, an important case, is the orphan works issue, an important issue on its own. I’m not going to suggest which of these are or ought to be fair use; I will agree that some are distinctly within the blue laws category. Johnson’s comment on all of them:
The uses above have either no or minimal impact on a copyright holders’ profits. Overly strict enforcements of the letter of copyright laws will lead to creating scofflaws of not just students, but teachers, and make all copyright restrictions suspect.
Here, Johnson makes what I believe to be an important point, one I haven’t seen made all that often: Copyright maximalism can damage copyright by making it seem abhorrent in general. By the same token, greater use of fair use provisions might strengthen copyright by making its core provisions seem more reasonable. (Not sure what you can do to make “life plus 70 years” seem reasonable…)
Here’s an interesting item: According to Temple University, “There’s never been a lawsuit involving a media company and an educator over the rights to use media as part of the educational process.” Beyond that, I’d certainly agree that by not encouraging use of fair use provisions in the classroom, school and academic librarians help weaken fair use.
The fourth installment in this series is fairly specific to educators and less focused on fair use; it’s valuable, but I won’t spend time on it. I do like the idea that students should think about their roles as probable creators of copyright material (“producers”) as well as users of copyright material (“consumers”). I also very much like the specific notion that people need to understand that copyright serves more than just Big Media.
An interesting (and ongoing?) series of posts, each offering a specific scenario that raises fair use questions. You need to read the posts themselves and consider your own responses. Some of these are categorized as “Fair use scenario” rather than “Ethical behaviors.”
Johnson introduced the series with a November 15, 2008 post, “Fair use scenarios.” In it, he cites one scenario and the three questions that are relevant to all of the scenarios:
1. What is the copyrighted material? Who owns it?
2. Does the use of the work fall under fair use guidelines? Is the use transformational in nature? Can this be considered “educational” use?
3. What is your level of comfort in helping create such a product? Are there any changes or limits you might like to see that would make you more comfortable with this project?
Since then, I’ve seen a number of scenarios, such as these (summarized):
· A teacher’s students have been building a closed wiki including art images portraying the human body—some of them from subscription databases. She wants to open the wiki to the general public.
· An elementary school is putting on a play with legitimate performance rights—and in the past, parents have been allowed to videotape performances. This makes the music director nervous; he’s afraid clips will wind up on YouTube or Facebook.
· An instructor wants to use a clip from a movie (on DVD) to spur discussion—but to use the clip he has to bypass copy protection on the DVD.
As you can see, some of these (and the others) raise difficult issues. That makes them interesting—and, in some cases, they’re not hypotheticals, they’re real.
I didn’t plan to spend this much space on Doug Johnson’s work—but it’s thought-provoking and deserves attention outside the school media center community.
A new Code of Best Practices in Fair Use for Media Literacy Education comes from the Center for Social Media at American University; it’s a 24-page PDF, freely downloadable. You’ll find the link and an introduction at www.centerforsocialmedia.org/resources/publications/code_ for_media_literacy_education/. Doug Johnson noted the new code in two posts (November 10 and 11, 2008) on Blue Skunk Blog, and others have also noted it.
Go read it.
Maybe that’s all I need to say. The publication is short and meaty enough that I see little point in quoting excerpts, and I’m certainly not about to take issue with the guidelines. I will quote portions of the introduction (or is that also the complete document?) that strike me as saying important things about fair use:
From the beginnings of fair use in the courts, judges have drawn the connection between this special doctrine of copyright law and the central importance of education in the American republic. The word “education” appears prominently in the preamble to Section 107 of the current Copyright Act, where the doctrine is codified. In addition, educators who rely reasonably on fair use are insulated against statutory damages in Sec. 504(c)(2). However, there have been no important court decisions—in fact, very few decisions of any kind—that actually interpret and apply the doctrine in an educational context. This means that educators who want to claim the benefits of fair use have a rare opportunity to be open and public about asserting the appropriateness of their practices and the justifications for them…
Law provides copyright protection to creative works in order to foster the creation of culture. Its best known feature is protection of owners’ rights. But copying, quoting, and generally re-using existing cultural material can be, under some circumstances, a critically important part of generating new culture. In fact, the cultural value of copying is so well established that it is written into the social bargain at the heart of copyright law. The bargain is this: we as a society give limited property rights to creators to encourage them to produce culture; at the same time, we give other creators the chance to use that same copyrighted material, without permission or payment, in some circumstances. Without the second half of the bargain, we could all lose important new cultural work.
Copyright law has several features that permit quotations from copyrighted works without permission or payment, under certain conditions. Fair use is the most important of these features. It has been an important part of copyright law for more than 170 years. Where it applies, fair use is a user’s right. In fact, as the Supreme Court has pointed out, fair use keeps copyright from violating the First Amendment. New creation inevitably incorporates existing material. As copyright protects more works for longer periods than ever before, creators face new challenges: licenses to incorporate copyrighted sources become more expensive and more difficult to obtain—and sometimes are simply unavailable. As a result, fair use is more important today than ever before.
Fair use is flexible. It is not uncertain and it is not unreliable.
Copyright law does not exactly specify how to apply fair use, and that gives the fair use doctrine a flexibility that works to the advantage of users. Creative needs and practices differ with the field, with technology, and with time. Rather than following a specific formula, lawyers and judges decide whether an unlicensed use of copyrighted material is “fair” according to a “rule of reason.” This means taking all the facts and circumstances into account to decide if an unlicensed use of copyrighted material generates social or cultural benefits that are greater than the costs it imposes on the copyright owner.
Fair use is flexible; it is not unreliable. In fact, for any particular field of critical or creative activity, lawyers and judges consider expectations and practice in assessing what is “fair” within that field. In weighing the balance at the heart of fair use analysis, judges refer to four types of considerations mentioned in the law: the nature of the use, the nature of the work used, the extent of the use, and its economic effect (the so-called “four factors”). This still leaves much room for interpretation, especially since the law is clear that these are not the only permissible considerations. So how have judges interpreted fair use? In reviewing the history of fair use litigation, we find that judges return again and again to two key questions:
Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
If the answers to these two questions are “yes,” a court is likely to find a use fair. Because that is true, such a use is unlikely to be challenged in the first place.
The introduction also includes a number of “common myths about fair use” and responses to those myths. I find two of those myths particularly interesting (which is not to slight the others), partly because the second one is repeated so often by Big Media:
Myth: Fair use is just for critiques, commentaries, or parodies.
Myth: Fair use is only a defense, not a right.
Take a look at the page—and the discussion that follows.
A guest post by Kristina De Voe, posted November 14, 2008 on ACRLog, discusses the “release event” for the new Code, links to an archived stream of the event and also links to a related Wiki, Unlocking Copyright Confusion (copyrightconfusion.wikispaces.com/). De Voe offers this note about the situation and the event:
Whether helping faculty design amazing curricula or helping students with research projects, promoting a stronger culture of fair use within our institutions allows us to help empower our users in accessing and utilizing media rich resources – available from our libraries or elsewhere. It is no surprise to me that comments about the Code from librarians were celebratory (there were cries of “Hallelujah” and even “This rocked my world!”) because too often, I think, we become bogged down by the image of librarians as gatekeepers of information.
Peter Jaszi is the new intellectual property scholar at the Center for Intellectual Property and, as such, has taken over ©ollectanea (Chaucer.umuc.edu/blogcip/collectanea). This post, on March 30, 2009, notes the Code—among other things—but focuses on “the curious dearth of case law interpreting the fair use doctrine where core educational functions are concerned.” How much of a dearth?
In the years since 1841, when Joseph Story first cooked up the fair use doctrine, there have been no decided cases—that’s right, no cases!—that address the legal status of core educational functions conducted in and around conventional schools. The closest we come (and it’s not very close!) is Encyclopedia Britannica v. Crooks, 542 F. Supp. 1156 (W.D.N.Y. 1982), which stands for the somewhat underwhelming proposition that schools can’t invoke fair use to justify a wholesale program of off-air taping for possible future classroom use! [Emphasis added.]
Excerpts from Jaszi’s “two modest suggestions” for what educators should be doing in this regard:
1. First, it’s important that educators refrain from claiming too much under the heading of fair use—and, in particular, that they avoid the simple (and erroneous) proposition that merely because a use is educational, it is definitionally fair…
2. Second, it is crucial to develop the arguments for treating various kinds of educational use as “transformative.” Like it or not, this is the current mantra of fair use jurisprudence, and educators need to recognize this jurisprudential fact and respond accordingly. They need to generate more and better explanations …of how educational uses don’t just repeat quoted material for its original purposes, but both repurpose that material and add value to it…
If amateurs like me are puzzled by the word “transformative,” we’re not helped by the number of times that word actually appears in Section 107. Go back and look: I’ll wait.
None. Zero. Not once does that term appear. Not once is there a suggestion that “doing something essentially new and original, using the older work as base material” (as one commentator expands “transformative”) has any bearing on the four tests. Personally, I find the situation confounding: Apparently, the courts are most interested in a concept that’s simply not there in the law itself.
For now, let’s move on…
Who cares whether fair use is an exception to exclusive rights or a defense for infringing uses? Among others, the Electronic Frontier Foundation, in a case that involves Prince, YouTube and a 29-second clip of a dancing baby. The case is Lenz v. Universal—and note the order of the names.
The basic story (from Ars Technica items):
· Stephanie Lenz posted a clip of her 18-month-old son Holden dancing to Prince’s “Let’s Go Crazy” on YouTube in February 2007. The clip was less than 30 seconds long and clearly an original work making use of Prince’s music. (The music’s really hard to hear in the background—and at best is relevant for half of the clip. The judge’s finding in August 2008 says it “can be heard for approximately twenty seconds, albeit with difficulty given the poor sound quality of the video.”)
· Universal Music Publishing Group issued a DMCA takedown notice to YouTube in June 2007. YouTube suppressed the video.
· Here’s where it gets interesting: Lenz posted a counternotification, saying the clip was not an infringement. YouTube failed to reinstate the video—for the better part of a year. Then, in April 2008 and with the backing of the Electronic Frontier Foundation (EFF), Lenz sued Universal to recover legal expenses and for an affirmative judgment that the clip is not a copyright infringement.
Takedown notices are made under threat of perjury. Publishers issue takedown notices by the thousands—Viacom alone has issued more than 200,000 takedown notices. Is every “infringing” clip studied to make sure it’s not a legitimate use? What do you think?
· Universal, never one to let bad enough alone, actually claimed in April 2008 that EFF’s suits are, in fact, SLAPPs—strategic lawsuits against public participation. Universal says (according to an April 28, 2008 Ars Technica story—I couldn’t make this stuff up!) it’s the victim of “an ongoing campaign by the Electronic Frontier Foundation to deter copyright holders from protecting their rights.”
· In the court case itself, Universal insists that there’s no such thing as a self-evident instance of fair use: “Whether a use does or does not amount to a fair use is never ‘self-evident,’ but is reached only after a defendant first affirmatively pleads it and then proves it after an intense equitable balancing of multiple factors.” Note “defendant” here—and note that the burden of proof is on the defendant, an interesting “guilty until proven innocent” situation. That’s the classic “fair use is infringement” argument.
· While the judge didn’t buy the SLAPP nonsense, it did dismiss Lenz’ suit on April 8, 2008, saying the argument of copyfraud (not the term used) was weak—and that an affirmative ruling in favor of the clip wasn’t needed because “Universal has indicated it had and presently has no intention of ever asserting an infringement action directly against Lenz based on the ‘Let’s Go Crazy’ video.” (From CNet coverage.) But the judge left the door open just a crack…
· A new suit, filed ten days later, argues (among other things):
Defendants had actual subjective knowledge of the contents of the Holden Dance Video and that it did not infringe any Universal copyrights on the date they sent YouTube the takedown notice regarding the Holden Dance Video... Defendants should have known, if they had acted with reasonable care or diligence, or would have no substantial doubt had they been acting in good faith, that the Holden Dance Video did not infringe any Universal copyrights on the date they sent YouTube their complaint under the DMCA.
· In July 2008, facing the second case, Universal came up with a remarkable new claim that speaks directly to the terminology issue: Takedown notices don’t need to consider the fair use doctrine, because fair use is still infringement. Specifically, when the judge asked Universal’s lawyer “Are you saying there cannot be a misuse of a takedown notice if the material is copyrighted?” the lawyer responded “I don’t think ‘fair use’ qualifies.” (Universal was arguing that the case against it should be dismissed because there was no case—because fair use is irrelevant to whether something infringes copyright.)
· On August 20, 2008, the judge refused to dismiss the lawsuit—and in doing so, substantially strengthened the interpretation that fair use is an exception, not just a defense. (Universal also said that, because it never admitted that the takedown notice misrepresented the video’s copyright status, it couldn’t be guilty of making a “knowing” misrepresentation. The judge didn’t buy that argument.) You’d need to read the August 21, 2008 Ars Technica report for some of the even sillier arguments put forward by Universal, including the claim that the YouTube video might undermine the market for licensed videos of babies dancing to Prince’s music.
The case isn’t over—it hasn’t even come to trial yet. But the judge’s refusal to dismiss points useful directions. It cites the section of DMCA that requires that a takedown notice represent “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” (The judge italicizes that clause for emphasis.) Universal argued that fair use “is merely an excused infringement of a copyright rather than a use authorized by the copyright owner or by law” while Lenz argued that “fair use is an authorized use of copyrighted material, noting that the fair use doctrine itself is an express component of copyright law.” The judge quotes Section 107—remember the phrase “is not an infringement of copyright”?
The judge also notes both the Congressional history around DMCA (which was represented as a careful balancing act rather than a massive gift to copyright maximalists) and the Supreme Court’s record—all of which support the novel idea that, when a law explicitly says something is not infringement, it’s not infringement.
It may be worth noting that the judge doubts Lenz’s ability to prove bad faith—but there’s enough there to continue to trial. EFF hailed the ruling as “a major victory for free speech and fair use”—and others agreed. Freedom to tinker has an essay about the epistemological questions raised by the ruling, which seem to boil down to whether copyright holders would have to stop using automated generation of takedown notices and actually review supposed offenses manually. The author of the post (on August 22, 2008) seems to feel that, if manual review of a large sample of flagged-by-computer clips finds that “enough” of them are actual infringements (say, 95%), then the publisher could have a “good faith belief” that the automated takedown notices are accurate. There’s a lovely response to that in the comments: A 95% success rate also means that one of 20 takedown notices “is bogus…and will damage an innocent person.” Another commenter notes that publishers insist that permission be handled on an individual basis—so it’s unreasonable to use unexamined mass takedown notices. “Copyright holders should have to live by the same rules that they insist everyone else must follow.”
Any “it’s usually right” basis for legal action is extremely iffy by its nature. Let’s say that 99% of the time somebody is charged with murder, they’re guilty. So can we abandon the appeals process and simply shoot anyone charged with murder—after all, we’d be right 99% of the time? Clearly not. Backing away from death, let’s say a facial-recognition program can scan TV shows and recognize actors who are using illegal drugs 99% of the time—and that the inventor of the program publishes lists of “druggie actors.” (DMCA notices state an infringement; they don’t suggest the possibility of an infringement.) Would you care to defend the inventor against that 100th actor?
Most of what’s here is more than a year old. That doesn’t make it less relevant. Lenz v. Universal hasn’t come to trial yet—and may never—even though it deals with a 2007 incident. In that case, the judge’s August 2008 findings may prove to be more significant than the outcome of the case itself.
This is a more encouraging set of copyright discussions than I’ve done for a while. Given that, I’ll stop here—before we get to the ways that DRM and DMCA interfere with the reasonable use of material. A small early section of this article (included frankly, because it’s been sitting on my computer for too long) gives one inkling of how complicated things get. But for now, it’s enough to say we might be getting some clarity on fair use and its status—and that clarity may directly negate what too much of Big Media’s been saying for years. Fair use is the law, and fair uses do not violate copyright—and, most of the time, fair uses aren’t that hard to spot.
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