Last week Columbia Law hosted a conference on Fair Use. The panelists included several scholars I respect. Here are some highlights from the third panel of the conference.
For a more in-depth report check out Rebecca Tushnet‘s reports at 43(B)log.
We’re asking fair use to do too much. If we think that unauthorized use of works is always infringing, we end up relying on fair use to get us out of any problems that arise. It’s hard for fair use to do what we ask it without expanding it, but if we want to confine its boundaries, we should redefine its tasks. The problem is not §107 but §106 – an essentially nonstatutory expansion, since Congress hasn’t revisited the key issues in 30 years, but judicial and business understandings of the rights have expanded.
Current fair use doctrine is not optimized for Google Book Search, no matter how you want it to turn out, or for individual personal consumptive uses, though it is optimized for The Wind Done Gone.
Note from Brian Rowe: Parody has strong protection under fair use, but that protection is not mentioned in the copyright act. This is part of what makes the law confusing to those who only read the text of the law without examining the relevant case law
“We need to reexamine our complicity in the sloppy and unbounded expansion of §106 into an unbounded use right. The Copyright Act should be understand to grant rights to readers etc., not just copyright owners and their assignees. “ (Emphasis mine)
Note from Brian Rowe: *Cheer* These are the types of changes we need to restore balance to the copyright act. Rights to use, share and remix. With life plus 70 we need proactive use rights sooner rather than later.
Tolerated use: slightly different from fair use… technical infringements of copyright law that are not subject to enforcement action, but are tolerated. [Y]ou look at these uses and say “maybe fair, maybe infringing.”
Example: Lostpedia, a fan-created encyclopedia for Lost. The site is notable for sheer volume: 3 million changes. The details accumulated for one character, Kate Austen, involve a huge amount of work – and her entry is longer than the entries of most presidential candidates on Wikipedia. There are pages and pages of theories about Lost as well. And it would be hard to analyze Lostpedia for fair use – pictures seem possibly infringing, but there’s commentary that seems like traditional fair use. There are also transcripts for every show. Almost everyone would agree the transcript is a violation of the reproduction right of the underlying script. Yet there’s been no legal action against this site. Every once in a while, the show actually advertises on this site. Is this an implied license? Probably not, but definitely a tolerated use.
Another example: Guyz Nite’s video celebrating Die Hard. The lawyers for the studio sent a takedown notice, but then the marketing department wanted to pay Guyz Nite to put it back up because it was good promotion; the band says it has no formal license for the footage.
Note from Brian Rowe: Lawyers are living in yesterday while marketers are living in tomorrow. Lawyers too often do not get web 2.0.
Three ways in which the law is or will be adapting to these mass quantities.
(1) The rise of systems of opt-in copyright. To activate statutory rights, copyright owners have to give some type of notice to the putative infringer before that person actually becomes liable in some way.
Note from Rebecca Tushnet: What I have called informal formalities
It’s like the exceptions for certain public performances that exist in the statute and allow nonprofit performances so long as the copyright owner doesn’t object. Section 512 is like that, pending the outcome of the Viacom case. Orphan works proposal: flip the duty to object to the rights owner. Google Book Search also has that pattern, where Google wants an opt-out system.
Note from Rebecca Tushnet: Wu suggests teaching a course called “Google,” which I thought about too.
His purpose here is not normative, but descriptive: the law seems to be dealing with these developments by establishing opt-in. The traditional answer to mass violations of copyrights, or claimed violations, was compulsory licensing. The alternative emerging solution to transactions costs is opt-in.
(2) In reaction to something like Lostpedia, there may be more pressure on interpretation of the adaptation right and perhaps a narrowing. There are two lines of cases, mostly unreconciled, about what counts as an adaptation. The Seventh Circuit has left more white space, in Litman’s terms – not everything you do with a work makes it a derivative work. A Beanie Baby guide is not a derivative work of a Beanie Baby.
(3) Perhaps companies like ABC want to encourage things like Lostpedia. They might consider clear No Action Policies about what they’re not going to act on. This is different from licensing because such policies could change. If they think it’s good for business – which Wu thinks it probably is – they could make the rules clearer. Since people are doing it anyway, that might not be all that important, but perhaps signaling makes a difference.
There is no fair use right! It’s important to distinguish use and access rights. We understand the rules for owning a piece of paper. But composing a poem on a piece of paper doesn’t change the ownership regime for the piece of paper. Creating the poem doesn’t create an access right to it, and it’s hard to get to a use right without an access right.
Note from Rebecca Tushnet: I’m pretty sure I disagree, at least as to works that have been voluntarily disclosed. Wendy Gordon wrote about this extensively in her Yale piece. Fair use doesn’t trump otherwise applicable law. The statute merely says that a fair use isn’t an infringement; other laws may apply, like obscenity.
It used to be true that disclosing a work necessarily involved surrendering control. But it’s now possible to distribute works digitally and still exercise control at a distance.
Note from Brian Rowe: he is talking about DRM, and he is wrong on two counts: DRM fails both technically, you can always hack it, and philosophically, people hate it. DRM only causes rancor in fans
So the question is what copyrighted work “locks” we are going to respect.
The ProCD case allows the contract to be enforced. DRM is another option. Adding it on to an existing medium, like CDs, generally failed, but integrating it into a new product, as with DVDs and iTunes, has generally been successful.
Note from Brian Rowe: I strongly disagree, see my DRM posts for more information.
The importance of incremental investment in copyrighted works: publisher won’t do the Mandarin translation until it’s seen whether the English version is a success. You get market feedback on the value of the work before you make more investments. Authors are overoptimistic about the commercial appeal of their works.
Note from Brian Rowe: I do not think I agree with any of Picker’s points.
Unlike the rest of this blog, which is in the public domain, this post is under a Creative Commons Attribution 2.5 License. The original post was written by Rebecca Tushnet on 43(B)log. Edits by Brian Rowe including moving links away from FindLaw for ethical reasons.