Combating The Culture Of Fear And Doubt By Reclaiming Fair Use! (Techdirt's May Book Club Choice)

from the fair-use-matters dept

Stephanie Lenz, proud mother of 13-month old Holden in State College, PA, posted one of those hilarious-for-family videos of Holden jiggling up and down in the kitchen, dancing to the beat of a Prince song. Unlike media professionals, she never once thought about copyrighted material as she did so. But no sooner had she let friends and family know about the video than it was gone. YouTube had obeyed a request from Universal to take down the video for copyright infringement. Stephanie did what most YouTube posters don't. She went to the Electronic Frontier Foundation, which in 2007 sued Universal for abusing the Digital Millennium Copyright Act. (The DMCA requires Internet service providers like Verizon and YouTube to take down works that copyright holders claim infringe on their copyright.) EFF seized on the chance to work with Stephanie; the lawyers there wanted a good case to establish that frivolous takedown notices could be costly. They sued Universal for bad faith in issuing the takedown notice.

By 2010, Holden had progressed to jungle gyms, and Universal was still stalling. The company had tried to argue that even if Stephanie’s use was fair, it was also infringing (yes, that made no sense). Then it argued that the takedown notice hadn’t really been a takedown notice. Then it argued that it was unreasonable to have to consider fair use before issuing takedowns. None of this worked with the judge, and neither did Universal’s claim that Stephanie and EFF were in bad faith themselves. A 2010 summary judgment on some of the charges went against Universal, with the trial continuing.

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Gordon, Cyndy, Chris and Stephanie all had the right to use the copyrighted material they employed in these works. But they were trapped within a culture of fear and doubt. They didn't even necessarily participate in it. But they faced gatekeepers who were also enmeshed in the same culture, and who enforced it (sometimes willy-nilly). Ultimately, each of these people challenged that culture, in a way that gatekeepers could hear and, in some cases, even listen to. These are just a few of the people who are changing their own stories and showing the way for the rest of us.

Gordon Quinn had been trained by the last two decades of producing for television to know that he needed to show insurers a license for every last smidgen of copyrighted material he built into a film. He knew that, in theory, he had the right to refer to that George Strait song, under what is known as the fair use doctrine of copyright law. That doctrine says that, under some circumstances (broadly, when social benefit is larger than individual owners' loss), people can quote copyrighted work without permission or payment. But insurers would probably challenge his claim, because they avoided risk wherever they could. Without a grounded understanding of filmmakers’ interpretation of fair use, the insurers would not know how much risk they were taking. If they did challenge it, he probably couldn't get his work on television. Gordon faced censorship via the insurers' reluctance to employ fair use.

The next film he made, Gordon Quinn was in a far different position. By that time he had participated in the creation of a pioneering document, the Documentary Filmmakers' Statement of Best Practices in Fair Use. This document, built on the experience and judgment of many veteran filmmakers, made it extremely easy for any maker—professional or not—to decide whether their use of copyrighted material met the standards of the law. The Statement was soon part of the backpack of any documentarian, and even insurers began to use it, including with films from Gordon’s company, Kartemquin Films.

Cyndy and her colleague Chris put up with months of agonizing scrutiny from university lawyers and administrators, even pledging their own savings to back their gamble that they had the fair use right to quote news, public affairs, and popular culture in order to analyze it. After that experience, Cyndy and Chris also acted to change their fate. Seeing how effective education had been for filmmakers, they worked with other educators to create a Code of Best Practices in Fair Use for Media Literacy Education. This code turned out not only to be helpful to teachers but also to librarians and even administrators.

Stephanie Lenz discovered that even when you make your own video and upload it for free to the Internet, there are gatekeepers who participate in the culture of fear and doubt. She found out that under the DMCA, YouTube as an internet service provider is free of responsibility for her and other YouTube users' copyright choices under law—but only if it honors any copyright holder's request to “take down” an offending video without question. A user has the right, after that, to demand that YouTube put it back up again, although the user will receive a message saying that the user could be sued individually by the complainer. You have to be really sure you know you're within the law to be the person who clicks that button.

Most individual YouTube users who suffer from takedown notices, even when they are not valid, simply assume that perhaps they did infringe a copyright, and that even if they didn't, they shouldn't risk trouble by challenging a big corporation. Stephanie instead chose to team up with the Electronic Frontier Foundation, in order to put a spotlight on an ugly spot in today's legislation. She found out that she had the right to post her material, under fair use, and that she had the right to a counter-takedown. She decided, with EFF's help, to get a court to affirmatively declare her use was fair. “This case mattered a lot to Stephanie,” said Jason Schultz, the lawyer who initiated the case. “When Universal told her she had done something wrong, she felt terrible. Now she’s stood up for her rights, and that feels good.” Schultz thinks the case will show copyright holders that they can’t just issue blanket takedown notices.

Meanwhile, other online video enthusiasts, including lawyers and cultural studies experts, had created a Code of Best Practices in Fair Use for Online Video, which made clear that Stephanie's use of the video was entirely within the law. Thus, Stephanie's challenge to a fear-based status quo was bulwarked by a strong statement of community practice.

None of these people wanted to overturn copyright law. Indeed, Gordon, Cyndy and Chris are all people who hold copyrights themselves and value the limited monopoly rights they hold. Stephanie Lenz simply didn’t want to take down a cute family video. But they all saw opportunities to assert rights that already exist, and to challenge behaviors that intimidate new makers of culture. The key to challenging the culture of fear and doubt is knowledge. Knowledge unlocks the door to action, which lets you join the culture of creativity.

Why We All Care about Copyright

You might ask, Do I really have to know that much about copyright law, especially if I'm someone who just wants to write a blog, make a video, put together a slideshow, build a class lesson, teach a Sunday school class? Not really. You just need to know the right stuff—most importantly, that you have rights. And then you need to know the real risks you take when you exercise your rights. You then might ask, Shouldn't we really leave legal questions in the hands of lawyers? You can, but that's a big decision. It's a decision that leaves you powerless to make creative decisions on your own, and it is unlike the rest of your life. You don't expect to consult lawyers when you speak in public, even though libel laws exist that incautious remarks might trigger. If you are attacked on a dark street, you don't stop to call a lawyer to see if you have the right to self-defense. There's nothing so difficult about the decisions people have to make about re-using copyrighted material that requires you to keep a lawyer at hand as you work.

And then you might ask, How often, really, do these arcane questions of copyright come up for non-copyright experts anyway? More and more, both at home and at work. That is not only because people have more and more tools with which to make and distribute their own digital work. It's also because over the last century, copyright became both long and strong. Our whole culture is now copyrighted.

The whole world wasn't always copyrighted. But since 1978, in the U.S. all expression that ends up in a fixed medium (and that means everything--your shopping list, the inter-office memo, your kid’s homework) is copyrighted by default. There's virtually no chance that you will make even a home video that is not littered with copyrighted material, including your kindergartner's adorable picture of Mom (yes, that kid does own the copyright).

Copyrights didn't always last forever, either. And they don't now, but for most ordinary purposes they might as well. Copyrights now last generations beyond the life of the author. That keeps almost all current culture--X-Men, “Star Trek,” “Saturday Night Live” routines or Jay-Z or Stevie Wonder's songs—off limits until after not only all the participants but all the people who ever heard of them are dead.

As well, big media companies and their trade associations such as the RIAA and the Motion Picture Association of America (MPAA) were not always huffing and puffing about copyright infringement. But they are now, and they have been ever since digital technology made it really easy to make copies. They have been watching their business models change without seeing a new one that works for them emerge. Their resort has been both to use copyright ownership in their favor and to scare people into thinking that ownership rights are even more stringent than they are.

Furthermore, scare tactics in one area scare people in another. When the Recording Industry Association of America sues downloaders, people who are repurposing bits of copyrighted culture to comment upon it get frightened. When a company challenges another about trademark claims, people erroneously believe this is a copyright problem. Problems that big media companies have with massive commercial piracy in China are confused with individual acts of copying. People are far more alarmed, in general, than they need to be, and they rarely understand exactly what is worth getting alarmed about or why.

None of that would matter that much if we were not becoming a nation of makers and sharers, not just consumers of other people’s copyrighted material. We are rediscovering the participatory, collaborative cultural practices that many of us forgot during the peak era for mass media. We create birthday slide-shows and scrapbooks, mix CDs and files, mashups and remixes, websites and self- published books. We expect programs such as GarageBand and Windows MovieMaker to come pre- installed on our new computers, and we turn to Flickr and Facebook for other people's memories to fill in when ours comes up short.

For centuries, no one much thought about copyright in daily life. Now, we don’t have a choice. We are both consumers and creators every day, and we need to use our rights to draw on our own culture as well as claiming rights to their own productions. We need to reclaim the conversation about copyright as one that belongs to all of us.

But what if we are just producing work for for love, not money? Do we still need to think about copyright then? Sadly, yes. Fair use is favored for non-commercial work. But that is difficult to assess, in part because the term “non-commercial” has no legal definition, and so there is no guarantee that your definition of non-commercial is someone else’s. In some situations, non- commercial work gets a special break under fair use, and educational work has some special exemptions. But in general you would not want to rest a case for fair use entirely on non- commerciality.

You may also face gatekeepers who want to know that you have a solid justification for your fair use. Of course, if work never leaves the four walls of a bedroom, a classroom, a boardroom, there is no need to worry, for the simple reason that nobody will know. But rarely these days do we even want to produce work that stays within four walls. And when we do go beyond those walls, we use intermediary services that have copyright standards. For instance, if you take material to a duplicator so that a slideshow can be a holiday present for the extended family, or because you want to share a work presentation with colleagues, the duplicator may balk at reproducing work with copyrighted material in it. Only if you have a fair use justification may it be possible to override the duplicator’s concern. The duplicator is only one example of gatekeepers we are surrounded by— librarians, lawyers, insurers, internet service providers.

Although this book will give you a solid framework to make your own fair use decisions, it will not do some other things. If you are downloading copyrighted work for free because you want to enjoy it and do not feel like paying for it, this book will not help you out. We're not here to tell you that the major media companies' resistance to 21st century distribution mechanisms is rational or smart. We agree with smart lawyers like William Patry and Fred von Lohmann and savvy digerati like Cory Doctorow, who censure the big media companies for turning their customers into their enemies. We, like most of the rest of you, are waiting for the day when business models in the entertainment industry catch up with the technologies that people prefer to use on a daily basis. But we are pretty sure that the basic notion that copyright holders deserve to be paid for work they want to sell is not going to be challenged usefully anytime soon. Besides, we note that people who make new works of any kind are copyright owners. Some of them really do not care how their work gets used, or whether they get recognition or get paid. But many of these people—possibly including you--may want to benefit from the limited monopoly rights of copyright owners.

This book will also not help you license work. When you want to reuse material and recirculate it for its original purpose, especially in its entirety or in significant part, fair use may not cover your activity. For instance, suppose you would like to use a popular song as soundtrack for a commercial slide show. Or you are making a biographical portrait film of a political figure and want to use large chunks of an earlier film about that figure. Or you would like to repost the entire school play— your kid was a mushroom in one scene—on YouTube. Or you want to photocopy a manual for a new video camera, scan it, and put it on an open user’s forum, so it’ll be easy for all your students to access. You then have to seek out licensing options.

If you want to license work, you have help from others. You might turn to Susan Bielstein's excellent, unpretentious guide, Permissions: A Survival Guide, for step by step advice on how to license. For audio-visual work, you might want to use Michael Donaldson's Clearance and Copyright: Everything You Need to Know for Film and Television. If you are podcasting, you can consult The Podcasting Legal Guide, bloggers can turn to EFF's Legal Guide for Bloggers. (Don’t expect much help on fair use from the last two documents; they were written before the resurgence of fair use.)

Stay tuned for the rest of this chapter and additional excerpts as well...