Fair Use Doesn't Weaken Copyright Law, It Strengthens It

from the more-maximalist-cluelessness dept

It's interesting to see the reaction of some copyright maximalists to the just released Hargreaves Review of intellectual property and innovation in the UK. Apparently, many in the old line legacy businesses are actually breathing a sigh of relief that it didn't advocate for the UK to implement fair use:
BPI chief executive Geoff Taylor said, "Professor Hargreaves has sensibly rejected Google's flawed case for a significant weakening of UK copyright. He has recognised that innovation and economic growth are best stimulated by licensing the IP we create in the UK, and that strong creative industries that succeed on a global stage are fundamental to recovery from recession."
I have a few problems with this. First and foremost, the fretting over US-style fair use still seems bizarre to me. It's not like it's unheard of. It exists in the US and it's not like fair use has really represented any hurdle for the recording and film industries in this country. They act as if it would be horrible, but present no evidence at all.

But, the bigger point is, I have significant problems with Taylor claiming that fair use is about a "significant weakening of UK copyright." Fair use is not about weakening copyright, it's about strengthening copyright, in making it more flexible to be able to bend, rather than break, when content is used in certain socially useful ways (what copyright law is supposed to encourage). In the same way that you want a building that will sway somewhat in an earthquake, rather than try to remain rigid, fair use is supposed to provide that kind of flexibility. That's about strengthening the overall point of copyright.

In fact, I'd argue that Taylor's anti-fair use position does significantly more harm to copyright in the long run, in that it makes it less flexible, and makes it illegal to do things that people know at a fundamental level should be legal. Thus, the lack of fair use actually leads people to respect copyright even less, and to recognize that it's a failed and outdated system.

Fair use doesn't weaken copyright law. It strengthens it.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    arcan, May 20th, 2011 @ 6:10am

    double edge

    i am really gonna laugh if some author notices some similarities between their book and some British movies and starts suing them

     

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    Dave, May 20th, 2011 @ 6:14am

    Fair use sucks.

    I'd argue that fair use laws here in the US are almost worse than useless. Any 'defense' that requires a judge to make a determination as to whether you have infringed or not means that no matter how fair your use was someone can still sue you into submission.

    Doesn't sound fair to me.

     

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      Squirrel Brains (profile), May 20th, 2011 @ 6:53am

      Re: Fair use sucks.

      The interesting point is, in the statute, fair use is labeled as a privilege, not an affirmative defense. Basically the courts have it wrong. The burden should be on the copyright holder to show that something is not a fair use.

       

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        Anonymous Coward, May 20th, 2011 @ 11:26am

        Re: Re: Fair use sucks.

        I think you have your sources wrong. The Supreme Court explicitly stated that "Fair use is an affirmative defense[.]"Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 599 (1994)

         

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      Richard (profile), May 20th, 2011 @ 8:05am

      Re: Fair use sucks.

      AS I already said before:

      Although in theory there is a significant difference between the concept of fair use in the US and the Fair dealing that the UK has - but in practice I doubt whether the US is actually in a better place on this issue.

      Many things which are allowed by fair use but not by fair dealing seem to be (in practice) treated the same on both sides of the atlantic. For example private copying is allowed by fair use but not by fair dealing - but in practice no one is ever prosecuted for private copying in the UK - whereas DRM can prevent it on both sides of the atlantic - and circumvention is disallowed in the US - even in pursuit of activities that are supposedly legal on grounds of fair use.

      The common (though technically incorrect) practice of treating fair use as "only a defence" in the US means that anyone who takes advantage of it (fair use) publically will be hit by a lawsuit that they are unlikely to be able to defend.

      So is US fair use worth the paper that it is written on?

       

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        Huph, May 20th, 2011 @ 10:08am

        Re: Re: Fair use sucks.

        The common (though technically incorrect) practice of treating fair use as "only a defence" in the US means that anyone who takes advantage of it (fair use) publically will be hit by a lawsuit that they are unlikely to be able to defend.


        Huh? Then how does The Daily Show, or Colbert Report, or news networks in general, or something like Tosh.0 operate? All of those entities operate under the protections of Fair Use. I know that they don't license their clips, because they've said as much. I haven't heard of any lawsuits against any of those shows.

         

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          Dave, May 20th, 2011 @ 5:26pm

          Re: Re: Re: Fair use sucks.

          Then how does The Daily Show, or Colbert Report, or news networks in general, or something like Tosh.0 operate?

          Because they can defend themselves? Remember, it's not just a question of "is the use fair?" but more of a question of "can the threat of a lawsuit make it go away?"

          Actually, a lawsuit threat isn't even necessary. Most of the time just fill out a DMCA complaint and 'Poof!' It's gone!

           

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    mmm, May 20th, 2011 @ 6:15am

    Fair Use

    The one problem with US-style "Fair Use" is a VERY unhelpful legal doctrine, which is mired in subjective tests, that provide little or no clear guidance about the sorts of behaviors that are or are not permissible. This makes "adopting" it by other countries not a real rational choice.

    The other problem with US Fair Use is that it's a mere defense only available after a finding of infringement.

    Besides, the UK does have its own concept of "fair use"/"fair dealing" and it is my understanding that this report does not to modify that aspect. And, the Hargreaves report suggested expanding certain areas (including parody) far beyond what the US would permit under the fair use analysis.

     

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      Josh in CharlotteNC (profile), May 20th, 2011 @ 6:53am

      Re: Fair Use

      The one problem with US-style "Fair Use" is a VERY unhelpful legal doctrine, which is mired in subjective tests, that provide little or no clear guidance about the sorts of behaviors that are or are not permissible. This makes "adopting" it by other countries not a real rational choice.

      I agree. The only rational choice after seeing how much harm copyright causes to creativity is to scrap copyright altogether.

      The other problem with US Fair Use is that it's a mere defense only available after a finding of infringement.

      That's nonsense. A "finding of infringement" would only be rendered after a judge determines that it was not fair use.

      There is no "presumption of infringement" just because a copyright holder says so.

       

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      Huph, May 20th, 2011 @ 10:18am

      Re: Fair Use

      The other problem with US Fair Use is that it's a mere defense only available after a finding of infringement.


      ??? That's a little confusing. Claiming Fair Use is a tacit admission of infringement, really. You certainly couldn't claim Fair Use if you're trying to argue that your content isn't derivative. It's like how "mental defect" is an affirmative defense. You can't go in to court and argue that you didn't commit a crime and besides, you're insane, too! ("Even though I totally didn't assault that person, it wouldn't matter because I'm nuts!")

       

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      Melissa (profile), May 20th, 2011 @ 11:32am

      Re: Fair Use

      Really? Its just a balancing test with four simple questions. It's not like conflict of law selection that have 7 different factors that vary based on the state your in.

      When you are dealing with free speech the issue is always going to be subjective because it must deal with the individual speech. The subject matter necessarily requires a balancing test that deals with alleged infringement on a case by case basis.

       

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        Mike Masnick (profile), May 20th, 2011 @ 3:27pm

        Re: Re: Fair Use

        Really? Its just a balancing test with four simple questions. It's not like conflict of law selection that have 7 different factors that vary based on the state your in.

        This is not really accurate. There are many tests for fair use. The analysis is supposed to use, but IS NOT LIMITED TO, the four questions.

        When you are dealing with free speech the issue is always going to be subjective because it must deal with the individual speech. The subject matter necessarily requires a balancing test that deals with alleged infringement on a case by case basis

        Of course, some people believe that the "no law" part of the First Amendment didn't leave any room for any "balancing," in that it can be simply interpreted to mean "no law."

         

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          Melissa (profile), May 20th, 2011 @ 8:11pm

          Re: Re: Re: Fair Use

          "This is not really accurate. There are many tests for fair use. The analysis is supposed to use, but IS NOT LIMITED TO, the four questions."

          All still based on 17 U.S.C. 107 and its four factors. That's what I'm talking about. That's the only statutory law that applies. The facts of the case may show that certain factors apply more to the situation than others but at the heart of it its still a balancing test between harm and expression.

          "Of course, some people believe that the "no law" part of the First Amendment didn't leave any room for any "balancing," in that it can be simply interpreted to mean "no law.""

          No law abridging the freedom of speech. The question is if the alleged infringement is actually defendant's speech. If it's not this argument doesn't apply at all. Someone else's expression is not your own speech. The very reason that we need a case by case analysis of the facts is to determine if the action in question is actually speech. We have laws that make asking someone to murder your wife on facebook illegal, the same goes for is slander, libel or fraud. In all those situations we have one or more subjective tests to determine if the conduct is protected as free speech.

          If you are going to take the strict textualist approach you already know that you're going to run afoul with Congress's express power Art. 1 Sec. 8 "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The fact is that they decided to keep that in even after including the first amendment which gives both sections significant weight and necessitates a balancing test to determine which interest should win out. If you're going the strict textualist route you can't cherry pick that parts of the constitution that you want to apply.

           

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            Mike Masnick (profile), May 21st, 2011 @ 10:29am

            Re: Re: Re: Re: Fair Use

            All still based on 17 U.S.C. 107 and its four factors.

            Not true. They do not need to be based on the four factors. This is a myth.

            No law abridging the freedom of speech. The question is if the alleged infringement is actually defendant's speech. If it's not this argument doesn't apply at all. Someone else's expression is not your own speech.

            Also a myth. Someone else's expression can *absolutely* be your own speech.

            If you are going to take the strict textualist approach you already know that you're going to run afoul with Congress's express power Art. 1 Sec. 8 "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The fact is that they decided to keep that in even after including the first amendment which gives both sections significant weight and necessitates a balancing test to determine which interest should win out. If you're going the strict textualist route you can't cherry pick that parts of the constitution that you want to apply.

            Well, if we want to get into a Constitutional debate, it helps to understand the original intentions, and there is significant evidence that the founders meant the "exclusive right" in Art. 1, Sec. 8 to mean exclusive right to profits, not exclusive right to use. I don't necessarily agree with that interpretation, but am just pointing it out.

            Also, it should be pointed out that what they meant by copyright law was SIGNIFICANTLY different at the time.

            I didn't cherry pick. I know what I'm talking about.

             

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              Melissa (profile), May 21st, 2011 @ 12:12pm

              Re: Re: Re: Re: Re: Fair Use

              "Not true. They do not need to be based on the four factors. This is a myth."

              I'm going to assume that you are interpreting that statement to mean that I believe those factors are exclusive. If my assumption is right then I will clarify this issue. In the United States, to have an affirmative defense in fair use, the analysis must have some basis in section 207 and its four factors.

              Even in Harper v. Row publishing, where the supreme court said that the factors were not exclusive they immediately after emphasized that fair use was "especially relevant in determining whether the use was fair" Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560 (1985)

              In other words, unless you can show that this is some sort of special case which makes those four factors irrelevant to the facts, the four factors are always going to be the initial basis for analysis.

              If I am incorrect in my assumption, please provide the basis for this argument.

              "Well, if we want to get into a Constitutional debate, it helps to understand the original intentions, and there is significant evidence that the founders meant the "exclusive right" in Art. 1, Sec. 8 to mean exclusive right to profits, not exclusive right to use. I don't necessarily agree with that interpretation, but am just pointing it out.

              Also, it should be pointed out that what they meant by copyright law was SIGNIFICANTLY different at the time."

              Even if we assume that this was the original intention of the founders, this interpretation still supports the right to control the work under copyright. Jacobsen v. Katzer noted that public licenses could be enforced under copyright law because their compensation for the issuance of license to modify and distribute the work was the requirement that licensees offer a similar public license for their resulting works.

              Furthermore, the rights to profit for the work is solely based on their right to control the work and especially the quality of their work. Where a content creator has a large following the value of works under the copyright usually have a remarkably decreased value if the creator loses quality control over their work. Given the cost and time required in the development of a project, investors would be even more reluctant to back a content creator's project if someone else has done the exact same thing. It doesn't even matter if it is better than the other project because the competition would still decrease profitability. Not to mention the confusion that this would create in the marketplace.

              However, assuming you do not agree with this interpretation a plain reading of the statute still mandates that a balancing test be used. To solely emphasize one part and ignore the other would be cherry picking.

               

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      Mike Masnick (profile), May 20th, 2011 @ 3:17pm

      Re: Fair Use

      The one problem with US-style "Fair Use" is a VERY unhelpful legal doctrine, which is mired in subjective tests, that provide little or no clear guidance about the sorts of behaviors that are or are not permissible. This makes "adopting" it by other countries not a real rational choice.

      Perhaps.. though the counter argument is that fair use is more flexible that way. I can see both arguments. Part of the point of fair use is that it was sort of developed as a "I know it when I see it" doctrine.

       

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        Dave, May 20th, 2011 @ 5:30pm

        Re: Re: Fair Use

        the counter argument is that fair use is more flexible that way. I can see both arguments.

        Maybe. But without clear guide lines companies can sue without any fear of reprisal, even if the use seems 'obviously' fair.

        Besides, with this 'flexible' law, most of the time it just bends one direction.

         

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    Anonymous Coward, May 20th, 2011 @ 7:11am

    "that strong creative industries that succeed on a global stage are fundamental to recovery from recession"

    YES! an important fact of which, on a global stage, your puny IP protections, are worth less than the paper they are printed on. The large part of your potential customers globally do not respect IP so you can kill yourself trying to make them respect it, or you can just be a businessman and not waste your money and sell them something!

     

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    Anonymous Coward, May 20th, 2011 @ 7:35am

    Let me fix this a line for him.
    "innovation and economic growth are best SUPPRESSED by licensing the IP" Noone wants to get IP protection for new ideas (or sometimes a legitimate IP), they want them for old ideas (or sometimes a legitimate IP) that get used in new innovations, so they get a free ride. Then when you come up with new innovations, you are only encuraged to get protection for it, and NOT USE IT. Because you lose more money doing anything with it other than licenceing. It grinds to a halt. Example: You come up with an new innovative back scratcher. It costs 5 dollars in parts (it's complicated but AMAZING),3 dollars to assemble, and even though you came up with it all on your own, your lawyer informs you that you will have to pay 40 dollars a piece in for licencing to others for your design. Now it costs you $48 dollars to make your new back scratcher, but it is only worth $15 to customer. So now because of licenceing, you don't make the back scratcher and simply wait until someone unless comes up with something you can licence it to them. If you don't like the backscratcher, replace it with "application" where there are not parts costs.

     

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    Greevar (profile), May 20th, 2011 @ 8:23am

    This just outlines why it's far better to have no copyright at all than to "balance" it or make it "fair". So long as there is any copyright law it will always be seen by the industry as too weak and will relentlessly demand to strengthen it in their favor, to the detriment of the public good. Sure, they'll piss and moan, "Oh noes! Now the everyone will take our work for free and we'll go bankrupt!" The people that really make the art, will always have a market to sell their skills to. This will only really harm the publishing industry because they wholly relied on selling an infinite good as if it could only exist on the plastic discs they sell it on. Without copyright, they'll flail about like a fish out of water, but eventually they'll realize that what they should be doing is learning how to breath air.

    Copyright was only effective in the last few centuries before the internet because copying was hard.

     

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    bshock, May 20th, 2011 @ 12:46pm

    and the fiction continues

    As much as I respect your ideas, Mike, I am always confused by your insistence that IP is meant for social good.

    There's a critical distinction between reason and rationalization. We know that the ideas behind IP were propagated by middlemen for their own greedy purposes, using social good as a rationalization. Throughout history, this same sort of middleman has constantly demonstrated just how superficial the "social good" rationale was to him.

    Sure, groups like the U.S. Founding Fathers probably intended social good as a genuine reason for IP. But how much does that matter? Essentially they were trying to co-opt an evil system for good purposes, a bit like trying to turn criminals into policemen.

    For all of the honest idealism in this, is it really practical? Isn't it much more likely that a system founded on greed and justified with the flimsiest of rationalizations will always tend to grow in the direction its flawed foundation set?

     

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      Mike Masnick (profile), May 20th, 2011 @ 3:31pm

      Re: and the fiction continues

      As much as I respect your ideas, Mike, I am always confused by your insistence that IP is meant for social good.

      There's a critical distinction between reason and rationalization. We know that the ideas behind IP were propagated by middlemen for their own greedy purposes, using social good as a rationalization. Throughout history, this same sort of middleman has constantly demonstrated just how superficial the "social good" rationale was to him.


      This is a fair point. Yes, the ideas behind IP were put forth for exactly the reasons you point out, but they're always defended on the basis of social good. I believe that if you are going to counter those arguments, it's actually quite helpful to take their assumption and point out that the rest of their argument is wrong *even given* their assumption. So, I think it's entirely appropriate to highlight the question of whether or not IP leads to social good or not, since that is the basis in which they use it.

       

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    Jesse (profile), May 20th, 2011 @ 6:39pm

    And that's why I don't get mad at copyright maximalists. In the end, they will be the driving force behind significant positive change. Any "success" they think they enjoy will only push more and more people away from intellectual property as a concept. And unenforceable laws hated by the majority of a democracy will ultimately perish.

     

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    R Vaughan, Jul 1st, 2011 @ 11:44am

    Lack of Fair Use

    I can appreciate this column. I like other people,collect appearances of entertainers on TV strictly for non-commercial,personal use.

    BUT some major video servers sometimes "block" entries of copyrighted material. IF the material is no longer available through normal means (including sale on DVD's) this makes no sense at all...especially since the copyright holder's power to use their material has become a moot point by then! (Otherwise they'd be selling it.)

    Because,the "Betamax" desicison won't help a collector who missed a show and can't connect with another collector who has it. FAIR USE does strengthen (not weaken) copyright law.

     

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