Celebrate fair use, but don’t misunderstand it.

fair use

Not that copyright stories should hope to compete with the drama coming out of Washington these days, but it’s more than likely that copyright policy and news will now be viewed through that multi-faceted, jittery lens; and the political climate certainly provides new context for creating freshly distorted views on various topics.

For instance, today begins the 4th Annual Fair Use Week, a celebration of the fair use doctrine in copyright law; and I will not be surprised if various organizations and individuals seize upon what I’ll call our current reality crisis in order to remind us of the many ways—reportage, education, parody, commentary, scholarship—that the fair use principle enables creators to speak truth to power.

In recent weeks, the nation’s university and public librarians have stood shoulder-to-shoulder to form a bulwark against the plague of fake news and gross distortions by elected officials, and I certainly share a solidarity with that effort. But while it is true that many important creative and informative expressions are indeed supported by the fair use principle, it is also necessary that my librarian friends in particular (yeah, I have librarian friends) recognize that some of their allies in this celebration sometimes promote fair use messages and agendas that get a little alternative-factsy themselves. Add to this any number of casual references in blogs, articles, or editorials that describe uses of works as “fair” when they don’t implicate the doctrine at all, and it’s worth remembering that fair use bell-ringing also celebrates a fair amount of confusion about copyright law.

There is value, of course, in highlighting examples of expressions that have relied on fair use; it is one aspect of celebrating free speech. But in the digital age, invoking the principle has taken on a distinctly anti-copyright connotation, which is functionally absurd and often misleading in ways that can actually get independent creators into unnecessary legal trouble. (See posts here, here, and here.) Fair use does not exist without copyrighted works to use in the first place, and the fact that countless fair uses produce new works which may then be separately copyrighted ought to provide a framework for understanding fair use as a component of copyright law, baked into the federal statute since 1976.

At the same time, no serious copyright advocate is opposed to the fair use doctrine since it is in the interest of all authors, big and small, to have the opportunity to make fair uses at various times in their creative endeavors. In particular, it’s counterintuitive that fair use is often portrayed as anathema to the interests of the large rights holders—the big studios, publishers, and labels—when it is these mass producers who tend to rely heavily on both fair use and the idea/expression distinction in copyright in order to produce and distribute in great volume without chronic litigation.

I get why librarians and universities celebrate fair use and that they have their own tussles with copyright law. These views deserve consideration given the sincere, public-serving intent of most librarians and educators. But those discussions are not always allied with the interests of venture capitalists betting on various tech companies whose models require the exploitation of creative and informative works without the cost of licensing.

The Fair Use Narrative in Current Caselaw

Behind the PR messages aimed at the general public is a more subtle and complex story playing out in various cases, revealing a consistent effort to strain the intent of the fair use doctrine until some precedent-setting case can weaken, or even nullify copyright protection altogether. In fact, the narrative of the copyright “debate” today is partly driven by predatory and wealthy tech enterprises, seeking to exploit every weakness in a legal framework that never anticipated the scale, volume, or diversity of infringement that would become possible in the digital market.

Often these enterprises have no public-serving component whatsoever, as they seek—with the aid of “digital rights” groups like the EFF—novel interpretations of the fair use test that strain the expression-based intent of the principle. For instance, the site fairuseweek.org, with its many academic signatories—including my alma mater—features an infographic highlighting a business called TVEyes as one example of the doctrine at work. I sincerely doubt, though, that many of those academics and librarians have any idea what TVEyes actually does or if they know the status of the Fox v TVEyes case.

TVEyes is an expensive, subscription-only, B2B, news-monitoring service that operates by making copyrighted works available without licensing, and if its particular fair use claims are upheld, the precedent could be used to nullify authors’ rights, allowing nearly any technology company to freely exploit works for almost any purpose. That’s not what fair use was meant to enable. As a side note, oral arguments are scheduled for March 7 at the Second Circuit Court of Appeals; so at the very least, in the interest of accuracy, it might be better to delay citing TVEyes as an “example of fair use” until the case is settled.

By all means, we should celebrate fair use with the understanding that the principle was relatively complicated before the digital age and is far more complicated today. This complexity is both generalized in the PR messages influencing perceptions among general users and independent creators; and this complexity is highly specialized in much of the current caselaw as the courts seek to consider fair use in the context of large-scale technological uses, rather than in the more traditional author-to-author uses for which the principle was codified into law.

© 2017, David Newhoff. All rights reserved.

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