David Bollier, Public Knowledge board member
Pat Aufderheide, American University Center for Social Media Director: Excited by the increased attention to fair use. Copyright’s “limited” monopoly is vitally important. We want to encourage people to use existing culture to make new culture; if people can’t use or don’t understand the exemptions, private owners become censors. We used to know that everyone stands on the shoulders of giants to make culture, but this has slipped from public knowledge, creating an imbalance. Fair use was formerly a backwater but has become extremely important as the most flexible exemption. Broad, adaptable, usable in digital culture. But people are worried about how to interpret it. So they ask: will I get sued? Will my boss get mad?
This is where the best practices movement comes in. Filmmakers, archivists, teachers are defining them. Success of filmmakers in getting insurance/distribution encouraged media literacy teachers to create fair use best practices, to avoid the climate of fear, uncertainty and doubt that surrounded the ways in which they taught children to identify and analyze media messages. Code of best practices is being used for national student contests, allowing them to upload remix to websites, including school websites. Code of best practices in online video also exists now. Dance archivists have a code of best practices now. Poets have fair use issues, and they’re now working on a code. Every code expands the utility of fair use for a community of practice and for its adjacent communities: lets people know that fair use exists.
Issues: extending to other areas, especially music. DMCA and automated interference with fair use. International translation. These all can be addressed, though.
Lincoln Bandlow, Senator John McCain’s attorney, argued a fair use defense when the song "Running on Empty" was used in a campaign ad without permission, and speaks to the political import of the doctrine.
Has represented RIAA, MPAA, and every single major studio as well as McCain. He focuses on First Amendment protections in defamation; he has not argued against fair use but has defended it on behalf of big corporations—the big guys are on the other end of this issue a lot, with films using dialogue/snippets. They do fight the good fight.
Fair use is not anything you want to do. We need copyright to incentivize artists, and therefore we also need fair use. It has to be gray to exist—if we had a bright line, all that does is stop the next creative person who thinks of a different way that didn’t make it on the list. (Yes, but how gray? There can still be large areas of clarity.)
Transformation: Courts like to see tinkering—do something with the material, though he doesn’t think that’s required. Clients tend to say it’s a parody because it’s funny—that’s not necessarily so. A parody targets the underlying material for criticism or commentary. (This is a very constrained definition of parody from a literary perspective, though it clearly is what Campbell said; Campbell also said that satire could be fair use too, but courts tend to forget that; Bandlow recounts the unfortunate decision about The Cat NOT in the Hat!)
Other stuff: courts don’t care about factor two, nature of the work; he gave the blanket statement that using an unpublished work is not fair, because courts don’t like you to preempt first publication. (I just wrote about this; he also mentioned Hillary Clinton’s book.) There’s no ten-second rule. (Aufderheide mentioned that standards & practices departments at major networks wrote their own best practices, and the journalists there followed a 30-second rule for a 15-minute news segment; the rule, but not the overall context, leaked into other areas, undergirding a lot of current confusion.)
Courts should focus more on substitution of demand; licensing market arguments are circular; they should recognize that hearing 3 seconds of a song in a movie will not interfere with and may spur sales of the song.
He showed the McCain ad! I hadn’t been able to find a version before. Though I remain confused by why the Ohio Republican Party thought that Obama’s point that inflating tires would save a bunch of oil and money was a strike against him. Bandlow noted that “running on empty” is a cliche/trope in political speech about energy policy, but he concluded that this was a tough fair use case. There was no transformation; it wasn’t a commentary on Jackson Browne. He also noted that individual artists are often plaintiffs in these type of cases.
Mike Masnick, TechDirt and Floor 64 founder and CEO: More ordinary people are beginning to realize the impact copyright has on them.
Ian Shapira, Washington Post reporter: Mainstream media are not dinosaurs. He decided to write a story last year, with no idea of the viper pit into which he’d be thrown—his beat is “millenials” and he wrote a story about people who give talks to Baby Boomers about the new generation. Took a lot of drudgery to get access to the seminar leader. He was initially grateful to Gawker and other linking blogs. But Gawker stole his story! They had excerpted enough that he felt a reader wouldn’t need to click through. HuffPost and DailyBeast etc. don’t staff with journalists with benefits like health care—the blogger who excerpted his story was on a contract basis. Gawker’s ad rates are much cheaper than the Washington Post’s. He likes blogs, but wants people who create original content/do original reporting to get paid; web traffic is not helping the bottom line there.
Aufderheide: This is a question of not having a clear interpretation of fair use. Shapira is intuitively using the criteria Bandlow described. Some of the business model issues exist independently of copyright—you can’t solve a business model problem by applying copyright. This is an ugly moment, when some things are not working and others aren’t paying yet. You could address the Gawker problem through journalistic standards.
Bandlow: Fair use should be two questions: what did you give us? What did the other guy lose?
Masnick: Gawker linked to the story 3 times, added a bunch of commentary about the article, and drove a fair amount of traffic to the story. Yes, some people may have read that instead, but there are different audiences: others would never have seen the WP article. Business issue: newspapers now have a ton of competition for advertisers that didn’t exist a decade ago. If the WP had given people a reason to read the article on the site—discussions with Shapira or the article’s subject, for example—they would havegone.
Shapira: He likes Gawker and doesn’t mind them riffing on the articles as much as they want—but here they made it pointless to go to the WP site by copying 4-5 paragraphs.
Masnick: He still disagrees on this specific case—bets traffic stats were good for WP overall—also, getting people discussing a WP article is good for the WP in the long run.
Shapira: But there’s no immediate commercial value to eyeballs. Gawker’s ad rates are much lower than the WP’s.
Masnick: That’s a totally different issue.
Aufderheide: Nobody ever promised newspapers or any other business a lifelong purchase on their business model. (This is something I say every year in copyright, though I tend to phrase it as “God didn’t give anybody a right to a business model.”) Fair use is so valuable precisely because there are so many instances when you want to quote from existing culture and the owners would mind.
Shapira: he supports any organization that wants to pay reporters a living wage/benefits. The problem is that the organizations that do that are hurting, and the web hasn’t figured out how to provide that structure—which may not be a copyright issue, but he argues there is some connection.
Bollier: what kinds of political uses are not ok?
Bandlow: There aren’t too many cases. There isn’t an absolute right to use copyrighted works in political ads, even though it receives the highest protection. Courts have also said that political importance doesn’t mean fair use. Harper & Row was political speech. Commentary on the work helps. He sees issues that tend to be more TM/right of publicity issues. Heart hated when Barracuda played for Sarah Palin, but those venues had ASCAP licenses to play the music! Copyright preemption is helpful in allowing certain uses against TM-type claims. What’s driving these disputes are artists upset about uses of their work. (How many artists, as opposed to corporate owners, submit content to YT’s filters? If only we could know.)
Case involving a Muslim organization excerpting a long portion of a Michael Savage show—used to suppress the message; court found fair use because it was commenting on Savage’s politics. If you’re just using material to make a spot punchier, especially if it seems to imply endorsement, that will draw the artist’s ire.
Shepard Fairey case: Should be a side note that Fairey used a different image than he initially told the court—AP moved to preclude him from a fair use defense on the grounds of unclean hands; the judge punted and waited to decide what the sanctions should be. Intersection of fair use and substantial similarity: did Fairey take protectable expression? Obama’s face was really what was taken, which the AP doesn’t own. A similar case involving a similar artist, Mr. Brainwash, was filed in LA.
Masnick: Browne was given a huge platform to promote his own message, just when his new album came out. It makes sense for a candidate to make sure the artist supports you, otherwise the press will all be about the artist who hates you, even if you have the legal rights.
Bandlow: growing problem of using TM to achieve what is essentially perpetual copyright protection. Is there a preemption policy argument?
Paul Levy, Public Citizen: The Post has apparently decided not to litigate the Gawker issue: from your description (which is contested) this is not a fair use, but instead of suing the Post is just publicly complaining. So it doesn’t show that fair use has gone too far, but that you’ve made a forum decision. What’s up with that?
Shapira: He wasn’t part of any big discussion about infringement. But he’s noticed that Gawker is still doing this, even though Gawker’s founder agreed with Shapira that his taking went too far. Gawker’s founder noted that other sites “steal” from/do the same thing to Gawker. The WP has sued other websites, but he doesn’t know anything about plans for Gawker.
Q: I get news alerts with one sentence. How do you decide how much is enough?
Shapira: he doesn’t know. Twitter is nice because it’s a tease—forces you to click through if you’re intrigued. In his case, he wrote a feature; no one-line summary would sate a reader. In the case of a straight news story, it could be different. He doesn’t like rules, but he wants organizations to be rewarded for original reporting.
McIntosh: He doesn’t go to WP because they make him register to read.
Shapira: but advertisers get more info when you register, so that’s good for us.
Q: Are there international best practice standards?
Aufderheide: This is difficult because of the general absence of fair use internationally, and the disparity between countries which take copyright very seriously and countries which don’t. Using international materials in the US is governed by US law. People in practice communities in other countries have found the best practices model very encouraging, and have borrowed the Center’s approach. South African filmmakers have interpreted their right of quotation to allow them greater freedom to operate; Canadian filmmakers are helping interpret fair dealing. Also a lot of interest in Europe in interpreting the right of quotation; Scandinavian countries are developing a common interpretation, inspired by the US. Not a panacea, but useful.
Q: Why draw such a clear line between business model and copyright? There’s no excuse for a failed business model, but there’s still an overlap.
Aufderheide: Yes, it’s a Venn diagram overlap. Not all of the business issues are copyright ones. Best practices have opened up conversations about new business models grounded in a better understanding of fair use. Fair use becomes much less risky/more usable when communities interpret it, and therefore it will become part of tomorrow’s business model.
Masnick: Many businesses/individuals who’ve relied on copyright as a crutch for a business model have trouble separating the issues, but once they see beyond copyright as a way of forcing people to pay in a certain way they can find solutions. People have the impression that they have to use copyright in a particular way, but that’s not right.
Fair Use Question and Answer
Anthony Falzone & Peter Jaszi
Falzone: Stanford Fair Use Project. Wants to note that he believes that the merits of Fairey’s case are as strong as ever, and he fully expects Fairey to win and desires that it should be so.
Jaszi: AU’s IP clinic provides a variety of types of assistance to creators and communities of cultural practitioners. The groups copyright exists to support are reclaiming the rights they need in the era of big copyright.
Q: Should there be more statutorily defined safe harbors?
Jaszi: loves topic-specific safe harbors that don’t interfere with or derogate from the flexibility of §107—education-specific safe harbors are useful, some of them anyway, but the law is fixed while culture, economics and education change. The best thing Congress could do about §107 would be to leave it alone and let us work with it, using its dynamism and flexibility.
Falzone: ambiguity is a strength as well as a problem. Nobody had any idea about new technologies—e.g., search engines—when §107 was written.
Jonathan Band: Georgia State litigation over electronic reserves—talk about that?
Jaszi: Isn’t as familiar with the facts as he ought to be in order to predict where it will go in litigation. But generally, providing e-reserves is simply an extension of a set of practices that have been not only familiar but broadly sanctioned by consensus in the library/education field for generations. The question ought to be how radically, and with what detrimental effect, does the electronic model of e-reserves depart from the broadly sanctioned practices of libraries over time. His greatest fear of the litigation: it will not be decided by a court, and we won’t get clarification of the broad application of fair use to e-reserves practices. So many past suits brought by large industries against educational institutions have settled; publishers then attempt to intimidate other educational institutions with the settlement.
Falzone: First sale and other doctrines don’t necessarily translate into the digital realm. So will the library exist in the digital space? Will the rules be tweaked/modified or will the library become obsolete (you have to go to the library terminal to look at a digital copy).
Q: Internationalizing fair use?
Falzone: “Harmonization” often means ratcheting up protections and diminishing freedoms that US law cares strongly about at home. The moment you try to internationalize fair use, we will be pulled down into a race to the bottom.
Jaszi: He once believed that fair use should be imposed on the national laws of other countries, by whatever means worked. There’s a slight movement in this direction: primarily Israel’s new fair use law. But he no longer believes this is a proper solution, because it reflects too much American exceptionalism. Creators and lawyers are very attached to the ways their laws do fair use. In South Africa, there’s little enthusiasm among creators for a US-based solution, but a great deal for taking advantage of existing flexibilities in South African law, such as the quotation right. Broad principles about transformation need to find expression in international law, but it shouldn’t be a specifically American model.
Last night’s discussion of ACTA: although it’s true that exporting fair use as such might not represent good international copyright policy, there is something deeply cynical about international copyright policy that actively seeks to export rights without exporting limitations/exceptions. We don’t know for sure, but there’s no reason to think ACTA requires limitations/exceptions instead of constraining them. The US has benefited enormously from robust limitations and exceptions, and we shouldn’t suggest to the rest of the world that they can get good copyright laws that will assist their cultural and economic development without limitations.
Q from DIY bookscanner guy: Libraries of tomorrow may look like libraries of today: packed full of books, but all access will be online. This is because Google settled with a very strong fair use argument: what are the ripple effects on fair use?
Falzone: That was a disappointment. Still: The settlement provides more access than fair use as they were asserting it did. Others don’t have the same resources to fight the fight; the law remains unclear.
Jaszi: Judicial resolution would have been good—he thinks the fair use argument was strong. Spillover effects will depend on how the ultimate settlement is understood—it will be up to us (if it’s a new way of selling whole books, it has little effect on snippet use). Settlement as a business decision has no direct legal effect on the merits, but it may not be understood as having no effect. So those of us who care about fair use must, in our communications, make clear that this is an outcome which tells us nothing about the scope of fair use. Will anyone else ever be in a position to litigate like Google’s? Hard to know. But increasingly, private actors/cultural institutions will engage in mass digitization, perhaps less extensive but similar in their general character in that they want to digitize a whole segment of material in order to be able to use parts. And Jaszi thinks that fair use test will succeed.
Falzone: He’s concerned with market impact. People with resources were willing to digitize, but are now less excited. Some people think the problem is solved; some think it’s now too messy.
Gigi Sohn: What’s the future of the Harry Potter Lexicon case?
Falzone: Encouraging. Though we thought the decision was wrong, the publisher decided to rewrite the book and was happy with the new one. It’s a roadmap to what can be done: a silver lining. It established the right to create encyclopedias and reference works in general as not a right of the copyright owner: what you have to worry about is taking too much, not about occupying a market to which the copyright owner in a fictional work has rights. It’s a starting point.
Jaszi: It’s always disappointing to lose, but the opinion, while a setback for Tony’s client, was a general victory for fair use, solidifying jurisprudence in courts of the Second Circuit, which asks whether a use is transformative and whether a use is appropriate in amount in relation to the transformative purpose. The question of whether licensing revenues were lost is no longer important. The question isn’t whether you used as little as possible, but whether the amount you used was appropriate given what you were doing. If you have a plausible story about amount, you can win.
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