Masnick Makes a Hash of Fair Use & Censorship

Photo by Pond5
Photo by Pond5
Photo by Pond5

In an effort to conflate president-elect Trump’s rhetoric on censoring the press with copyright protection, Mike Masnick at Techdirt accuses the News Media Alliance of seeking to “whittle down” fair use. He further says this will only leave journalists vulnerable to the kind of censorship Trump has threatened by amending libel laws.  There are too many holes in Masnick’s post to address efficiently, so I’ll stick with the main point about fair use doctrine. The Newspaper Association writes the following:

“Fair use” should be reoriented toward its original meaning. Under current copyright law, a person that does not own a copyright may still use a copyrighted work if it is consistent with the “fair use” factors, which assess: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect upon the potential market. The courts, unfortunately, have dramatically weakened this test by finding a fair use any time a new use could be seen as “transformative.” This test has undermined the integrity of the long-established fair use factors. As part of any Copyright Act rewrite, we support refocusing the fair-use test on its original purpose to prevent courts from undermining the Constitution’s encouragement of compensation to entities that generate creativity and productivity.”

For starters, this statement isn’t asking anyone to “whittle down” fair use. Instead, the News Media Alliance is simply asserting what many copyright experts and rights holders have observed, which is that the “transformative” standard is in fact a relatively new and often-vague principle that has become something of a vestigial fifth factor not codified in the 1976 Copyright Act.  In fact, “transformativeness” began as a measurement of creative transformation in the landmark case Campbell v Acuff-Rose but has since been applied in broad contexts in which uses are “transformative” of something other than the original work to create a new expression.  

So, “transformativeness” can exceed the original free-speech motivations for codifying fair use into the federal law in the first place.  And that in itself is not inherently bad; we want law to be elastic to a certain extent, otherwise copyright itself could not have adapted to changing market and technological conditions. 

Having said that, however, the “transformative” standard has come dangerously close to asserting that simply using a work in a new context—like posting it on social media—is “transformative” enough to make the use fair.  So, the Alliance is not attacking fair use doctrine at all, as Masnick asserts, but is rather seeking to mitigate what many rights holders view as an irrational expansion of the doctrine until it ceases to be an exception at all.  

The part where Masnick accuses the Alliance of playing into Trump’s censorship hands is just a malarky cocktail well spun.  He writes the following:

“While [Trump] was specifically talking about libel laws, as we’ve seen over and over again, copyright is an amazing tool for censorship as well. In fact, the Supreme Court itself has noted that fair use is the necessary “safety valve” on copyright’s free speech stifling powers. So for newspapers to basically gift wrap to Trump a way in which he can pull back a tool that protects their free speech — just as he’s been promising to attack their free speech — is ludicrous.”

Masnick is mashing up unrelated topics to argue the interests of OSPs like Google and taking the opportunity to use the words copyright and censorship in the same sentence. As a general statement, it is true that fair use is a free-speech-based exception to copyright, but most speech-related, or press-related, uses almost always relate to other forms of expression, including journalism, and they rarely implicate the “transformative” standard being referred to by the News Media Alliance. 

For instance, I noted in a past post that a FOX Network initially sought to argue that its use of another news agency’s photograph was “transformative” simply because it was posted on their Facebook feed.  That argument didn’t get very far, but it’s the kind of argument rights holders are nervous about arriving in the courts; and it has nothing at all to do with legitimate concerns about a president threatening to use libel laws to silence the press. For another perspective on how the “transformativeness” standard can come very close to effectively obliterating copyright, see this post about TVEyes v FOX News.  

As usual, the internet industry and its advocates behave as though their platforms, which make unlicensed uses of all manner of works, are synonymous with free speech or freedom of the press.  From that premise, they argue that a desire to maintain boundaries and contours around the fair use doctrine is synonymous with trying to kill the doctrine outright.  That is ludicrous.

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