COPYCENSE

A. INTRODUCTION

This edition of CommuniK.™ features the fourth part of a series about copyright law exceptions that are available to libraries, schools, and archives. This is the first of a two-part article that discusses Section 107 of the 1976 Copyright Act, otherwise known as the “fair use” doctrine.

Fair use serves as the broadest copyright exception available in copyright law, one which is generally applicable to all circumstances. Fair use, however, is a paradox. First, fair use is very difficult to apply properly without experience. Second, while federal courts have decided a number of fair use cases in a way that seems to strengthen fair use, other factors (including a hyperactively litigious content industry) have served to diminish the doctrine’s practical viability.

This article discusses a conversation I had last year with Siva Vaidhyanathan, a copyright scholar that teaches at New York University. The second part of this two-part article, which will analyze Section 107, will be published next week.

Portions of this article originally appeared in the September/OctoberJune 2005 edition of Online magazine.

B. THE TOOLS OF THE TRADE

Call me a nerd, but I like copyright. I like reading about copyright, parsing the statutes, and debating its concepts.

As someone who has created, used, sampled, remixed, borrowed, cited, and paid for innumerable “original works authorship … fixed in a tangible medium of expression,” I feel that I should know about copyright. Just as a truck driver should know some basic physics and engineering (the code of his trade) so he can get his truck to where it needs to be, I believe creators and information professionals should know the code of creativity, which is copyright.

Much of the current copyright debate centers on fair use: whether it exists, how it has changed with the advent of digital technologies and content, and how easy (or difficult) the doctrine is to apply in today’s protectionist environment. But fair use faces a double-barreled threat. On one hand, Big Content is seeking to eliminate any use of work that is not explicitly permitted. On the other hand, information professionals — often the front line soldiers in using and benefiting from fair use — seem too scared to defend the parameters of the doctrine, or remain ignorant about how the doctrine works.

These, and other circumstances, has led Siva Vaidhyanathan to question whether he still believes in fair use.

C. FAIR USE VIBRANCY

Siva Vaidhyanathan is an assistant professor and copyright scholar in New York University’s Department of Culture and Communication and the author of The Anarchist in the Library (2004, Basic Books). We spoke in late April 2005 at the U.S. Supreme Court, after Vaidhyanathan had finished giving a speech (“How Fair and Useful is Fair Use?”) to the Law Librarians’ Society of Washington, D.C.

One of the things that makes Vaidhyanathan’s work so refreshing is that he’s unafraid to talk plainly about copyright. In this way, his lack of formal legal training becomes a benefit: Vaidhyanathan does not struggle with legalese (an affliction from which I still suffer), and his perspectives on copyright emanate from a user’s perspective, not an owner’s perspective.

In “How Fair and Useful is Fair Use?,” Vaidhyanathan talked about what he considers the fair use paradox: case law upholding fair use is as strong as it ever, yet Section 107 has become less useful and less fair as a limitation on copyright.

Indeed, there have been several significant decisions over the past decade or so that suggest fair use is as strong as ever. Siva noted three prominent examples:

• Campbell v. Acuff Rose, a 1994 Supreme Court decision that defended the Too Live Crew’s parody of Roy Orbison’s classic rock song “Pretty Woman”;
• SunTrust Bank v. Houghton Mifflin Company, a 2001 decision in which the 11th Circuit Court of Appeals in Atlanta overturned a lower court’s injunction levied against the publication of a fictional reinterpretation of Margaret Mitchell’s Gone With the Wind; and
• Kelly v. Arriba Soft, a 2003 decision whereby the 9th Circuit Court of Appeals ruled that the defendant’s use of thumbnail images for its search engine was a fair use under Section 107.

When taken together, these decisions support a theory of fair use vibrancy.

D. SIVA’S SKEPTICISM

Or do they? Interestingly, most of the parties in these cases are businesses seeking to advance (or defend) a fair use position in which hundreds of thousands of dollars hang in the balance. A glance at other fair use cases during this era reveals a similar litigant demography, suggesting that fair use has become copyright law’s World Series of Poker: only those with large stacks of chips need bother sitting at the table.

Of course, the financial stakes behind fair use litigation — along with the doctrine’s broad and flexible interpretation — makes fair use the riskiest of the copyright limitations.

Vaidhyanathan’s doubts about fair use’s viability, however, have more to do with how the application of fair use is preempted prior to the courtroom steps than the outcomes arising from a decision on the merits. During his speech last year, Siva talked about the struggles encountered by Kembrew McLeod, a University of Iowa professor and author of Freedom of Expression®. According to Vaidhyanathan, Doubleday, Freedom’s publisher, sent McLeod strict, preemptive guidelines about how the publisher interpreted fair use. Suffice it to say, Doubleday interpreted Section 107 in a very narrow fashion. Doubleday warned McLeod that if he did not comply with its guidelines, it would not publish non-compliant content.

Vaidhyanathan also discussed how doctoral students are having trouble getting articles published in leading refereed journals due to publishers’ fears of copyright violations and possible litigation.

The result? Fair use becomes only as broad as a publisher’s understanding of the doctrine. (Publishers, of course, have an economic interest in limiting fair use. The industry sees fair use, as well as many of the other limitations in the Copyright Act, as one key factor that causes lost sales and threatens the viability of its business. This partly explains the reason why the industry is suing Google over its Book Search program.)

Further, fair use’s diminished practical utility occurs at a time when other threats to fair use — including licensing, the Digital Millennium Copyright Act, and the Copyright Term Extension Act — also have chipped away at the doctrine’s viability.

Given these events, Vaidhyanathan said he has gone from being a staunch advocate of fair use rights to being what he terms “fair use agnostic.” In today’s culture of surveillance and protection, he explained, fair use no longer supports our need to build upon others’ works or give license to unsanctioned uses.

E. MY TAKE ON FAIR USE: USE IT OR LOSE IT

Vaidhyanathan’s skepticism about the practical applications of fair use are so well-considered that an observer could reasonably ask “If Siva Vaidhyanathan is down on fair use, what’s the point of using fair use at all?” On the other hand, I look at the issue from another prism. To me, if you don’t use fair use to its fullest extent, you deserve to lose its privileges.

True, fair use is a high-stakes litigation gamble. True, publishers’ practical application of fair use even prior to litigation has narrowed enormously. And the federal courts consistently have rejected any First Amendment challenge to legislation that effectively (if indirectly) broadens copyright’s scope or narrows copyright’s limitations.

Yet, I remain confident in using fair use as a viable copyright limitation. Part of my confidence may be due to my comfort with (if not blind faith in) the legal system and the economics of copyright litigation. Part of it may stem from the confidence I have developed by having been involved with copyright issues for more than 25 years across law, journalism, entertainment, publishing, and music. (Certainly, this experience has helped me in developing CopyCense, which relies on fair use as the basis for some of its content.)

Another part of my confidence, however, comes from the knowledge that despite the reticence of traditional publishers in allowing fair, free, and unlicensed uses of protected works under Section 107, my options for communicating with the public are broader than ever before.

Alternative and viable means of distributing content now exist. As recently as 10 years ago, my only outlet for an article like this would have been through a print publisher interested in taking my copyright in exchange for compensation. (Some journals gladly would take my copyright for no pay, as if the thrill of seeing my words print on a page was sufficient compensation for the hours of work put into preparing this piece.) Instead, I can publish live and direct to the loyal community that chooses to read CopyCense. I don’t receive “pay” for this in the traditional sense, but each week, we add three to four more new subscribers. That is a reward worth having.

Thus, using CopyCense as one of several alternatives to publishing with a traditional house, I may continue to create, use, sample, remix, borrow, cite others’ works reasonably, without having to suffer a large publisher’s conservatism toward fair use and without having to pay a license for material I weave into my work.

By not having to work through traditional channels, I am free — or at least freer — to keep and trust my own counsel on copyright and business issues, rather than having a large, conservative organization preempt my thought. (Trust me, I do not want to get sued, so my usage is well within the fair use doctrine.)

Again, CopyCense is a good example in this regard: I am certain another, larger publisher would shy away from my format for posting news stories, which involves quoting the lead and second paragraphs of a story and providing full bibliographic citation to the main story. Instead, they would require that I provide my own abstract of the story. I prefer to reserve my original writing (and time) for story headlines, and longer pieces such as the one you’re reading.

Alternatives like open access journals offer choice in the academic arena as well. For every traditional journal that refuses the work of one of Vaidhyanathan’s doctoral students on copyright grounds, there are growing numbers of alternative publication channels that give those students broader audiences, a more direct level of discourse, and potentially greater academic, intellectual, and compensatory rewards.

F. REALISM RATHER THAN AGNOSTICISM

I consider myself a fair use realist who recognizes the importance of the doctrine, and will use my understanding of the law to apply appropriately fair use principles in all my creative or academic endeavors. And to this end, I prefer the stance Vaidhyanathan championed in 2004.

“If we don’t make a stand against copyright vultures we might as well be waiting around to become carrion,” he wrote in his Sivacracy.net blog in July 2004. “The important thing to remember here is that if you follow [conventional] advice and ask permission, you are making this entire fair use calculus irrelevant. Why do we need section 107 at all if [audiences] are just going to cower upon the advice of copyright experts?”

“It is our duty to push the envelope of fair use,” he continued. “And it is our duty to demand that our institutions back us up when threatened by bullying copyright holders who do not respect values of openness and freedom.”

RESOURCES

K. Matthew Dames. Library Schools and the Copyright Knowledge Gap. Information Today. February 2006.

K. Matthew Dames. Library Copying in the Digital Age. CopyCense. Jan. 31, 2006.

K. Matthew Dames. First Sale in the Digital Age. CopyCense. Jan. 23, 2006.

K. Matthew Dames. Using Copyrighted Works in the Classroom. CopyCense. Jan. 16, 2006.

K. Matthew Dames. Copyright Limitations Risk Analysis. CopyCense. Jan. 9, 2006.

Lessig Blog. Never Again. March 15, 2005. (“I will not agree to publish in any academic journal that does not permit me the freedoms of at least a Creative Commons Attribution-Noncommercial license.”)

METADATA

Author: K. Matthew Dames

Title: The Context of Fair Use: Action or Apathy

URL: http://www.copycense.com/2006/02/the_context_of_.html

Publisher: CopyCense, a division of Seso Group LLC

Copyright: 2006, Seso Group LLC

Contact: copycense at g mail dot com

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC. CopyCense™ and CommuniK.™ are trademarks of Seso Digital LLC.