I think Mike is quite right to point out that most likely if you want to find a bootleg copy of something, almost anything, you can. That's been true, at least, of all the recent books I've published, and this is probably no exception. Anyone who releases work in this moment in history would be foolish to think that wasn't going to happen. Some of us think that we're really not losing a market opportunity, between free promotion/publicity/word of mouth and the fact that many people who bootleg wouldn't buy the product anyway.
But as I read the thread, this exchange, which appears to be precipitated by a "gotcha" sensibility, is a red herring to what I hope can be the discussion, which is how people can use their rights within the law more effectively, and in a way that can 1) allow them to do more and better work more easily 2) create a constituency for a far more balanced copyright regime, by making more people aware of their rights and 3) create a group of people who actively become citizens and defenders of these rights 4) explore the boundaries of today's law so that at the moment when legislative action (including rebalancing) may occur they can document what they couldn't and could do successfully when they actually used their rights under the law.
I note that at least one person is seriously annoyed at the price of ebooks. I would like to add my annoyance to that complaint. I believe that University of Chicago Press served us and the people who read our book very well in many ways; among other things, the high prestige of the press gave legitimacy to our perspective that had not come even with spectacular real-life successes (chronicled in the book). What I understood from them, as we worked hard for low prices (and btw I am extremely happy, in comparison with other serious/monographic book prices, with the $11.70 price for hard copy and $9.35 for Kindle on Amazon), the ebook market is still really new to them and they're both encountering some serious investment costs in managing new platforms and unsure about the business model. So I understand what they're doing in pricing ebooks close to the hard copy price, but it's also very frustrating, in many ways. I appreciate the good will of readers about this so much less than ideal situation.
Thank you all for your engagement with the second part of the first chapter of our book. As the chapter itself concludes, people do look to fair use with different expectations. Andrew mentions several, and I just wanted to make sure we're clear.
At the 30,000 foot level, what fair use says is that copying others' work is legal, when you are adding value (reusing it for a different purpose/transforming), and the cultural benefit is greater than the individual monopoly rightsholder's loss. That's very vague, it's true, and the four factors don't really make it much clearer, do they? But the vagueness was by design, in order to ensure that new cultural creators, and new cultural expression, isn't stymied by inability to access existing culture. There are probably a host of reasons why people might want to quote copyrighted culture on the way to making new expression, and the law shouldn't get into itemizing all of them for people. Inevitably, something will get left out, something won't have been thought of, and something will get chewed over by rival stakeholders and spit out unrecognizably in the law. I want in the rest of this post to take up how people can and do and have made it easier to fill the abstract form of fair use doctrine in the law with living, breathing creative practice. But first I want just to comment on Andrew's interesting examples:
* First Amendment rights to critique the original work: Fair use doctrine actually allows you to exercise your First Amendment rights to do a wide variety of expression, not just critiquing. The fair use doctrine is the lever within copyright policy that allows everyone to exercise their First Amendment rights.
* A reluctance to impose penalties for "harmless" infringement: This is actually something else, specifically, as Tim Wu calls it, tolerated use. Fair use is employed without permission. Infringers also employ work without permission. When you the owner don't care and it's infringing, that's tolerated use. When you the owner care and you charge the fair user with infringing, that is when the right of fair use is actively flexed for the first time. Until then, people simply use their right of fair use without having to actually invoke it.
* A subsidy for favored uses like education: Don't forget about specific exemptions, e.g. for the sight-impaired, for educators and for librarians. These are specific exemptions; it is the limitations of these exemptions in a digital age that sometimes makes educators and librarians also explore their fair use rights.
* A way for judges or other policymakers to fine-tune copyright and maximize the overall variety of works being produced: The fair use doctrine was made explicit in legislation for the first time in 1976 to acknowledge, at a time of vast expansion of rightsholders' monopoly, the need to explicitly rebalance copyright and hold true to the core purpose of copyright policy, which is to provide incentives for creating more culture.
* A fallback for uses that sort of but don't quite fall within other copyright limitations like first sale or the inability to copyright facts: Fair use is indeed a doctrine designed to be a broad and flexible exemption going beyond specific other exemptions that also balance copyright monopoly rights holders' rights.
It's also true, as others have noted, that explicit employment of fair use has risen in importance since the metastasizing of monopoly owners' rights post-1976. Previously, explicit fair use often wasn't needed, because so much of culture wasn't copyrighted (and not all of us could both create and share so easily, too). But post-1976, fair use becomes ever more important, as the Supreme Court recognized both in Eldred and Golan. (I'm personally deeply unhappy with both those rulings, but from this perspective it's interesting that the court used fair use as the reason why copyright isn't unconstitutional.) So if it's that important, we probably need to test out whether we can really use it.
We've now worked with 10 communities of practice (the story is in the book), each of which have crafted codes of best practices in fair use, and each of which have found these codes to be easy-to-use and widely trusted guides to their fair use reasoning. Each community's codes are different because they all have different reasons to employ fair use. The problems dance archivists face aren't the same ones that poets face. But each of them participates in the same basic logic (also discussed in the book).
On a personal note, it has been an extraordinary experience to work with people from these 10 communities of practice. I have had the privilege of watching people change from people who either were afraid or frustrated to people who liberated their own creative and professional decision-making, and often made more interesting work. Some of those people are the people who went to the Copyright Tribunal and won DMCA exemptions; they were people who became not only better creators, but active citizens on copyright issues. Some of these stories are also told in the book.
It's exciting to see Aaron Barnhart's work flagged in TechDirt; Aaron himself is an active and cheerful fair user on his blog, by the way. And of course as a pop culture critic, he's more than entitled.
I think that some of the debate in these comments will be helped by a quick scan of Peter Jaszi's and my new book, Reclaiming Fair Use(http://centerforsocialmedia.org/reclaiming and http://www.facebook.com/ReclaimingFairUse). It discusses the case of Lenz v Universal (baby dancing to Prince), among other things. Refresher: EFF and the mom, Stephanie Lenz, sued Universal for its takedown (her countertakedown made it go back up). The case is still stalled out; Universal is dragging out the process after losing in interim decisions. But the fact that Universal got egg on its face has certainly made it clear to lots of others that incidental quotation is perfectly within fair use. (You can also see explanations why that's so, made by doc filmmakers and remixers in two codes of best practices in fair use, on our website, centerforsocialmedia.org/fair-use.) We're excited to see more and more people realizing that there's a pretty comfortable center zone in fair use that's easy to understand and use, and of course, the more people who use it, the bigger that zone gets. Fair use is a muscle; use it or lose it!
Next time there are hearings at the Copyright Office on DMCA exemptions, the videogaming community needs to get before the hearing officers and show clearly why they need to break code to preserve video games. The Librarian of Congress responds well to hard data, as is evident from the exemptions granted this round to those who made a data-driven case.
It is just a crying shame that UCLA has capitulated to the association’s demands, without considering the effect either on pedagogical practice in its own institution or on the wider world of higher education. (Read about it at Inside Higher Ed here.)
The original provisions of Sec. 110 of the Copyright Act, special educational exemptions, were never designed for the digital era, and the amendments to it provided under the 2003 TEACH ACT are crabbed and constrained, the product of tough negotiations between the relatively weak nonprofit entities and highly focused copyright holders. So as it stands, Sec. 110 is a poor fit for changing educational practice. Exclusive reliance on Sec. 110 can mislead librarians, professors and university counsels into an attempt to make practice conform to a rigid and unhelpful set of rules.
Far more useful is the flexible and adaptable doctrine of fair use, which is fully available to every teacher, and every college and university –in addition to and apart from Section 110. Judicial interpretation of this doctrine has coalesced dramatically in the last two decades, and has eliminated much confusion about how to interpret fair use. Two concepts are critical to make a fair use judgment: Transformativeness (using material for a different purpose than the original) and appropriateness (using enough to make the point). In many cases, videos posted to course sites by instructors will satisfy these fair use criteria easily.
In order to more easily make and defend fair use judgments, higher education doesn’t need more negotiated “guidelines” – an approach that, as documented by Kenneth Crews , has never served their interests well. But another, more fruitful, approach is available. Recently several communities of practice have formulated collective interpretations of fair use, or codes of best practices in fair use. These codes have dramatically reshaped practice in fields such as documentary film and media literacy education. They are used daily by online video makers who enthusiastically embrace fair use without legal harassment.
Four codes are of particular interest to higher education: the Society for Cinema and Media Studies’ two codes of best practices (one on teaching and one on research), available on SCMS’s website; the Code of Best Practices in Fair Use for Media Literacy Education ; and the Code of Best Practices in Fair Use for OpenCourseWare . These codes discuss, for example, when the relevant community of practice regards it as appropriate to post others’ copyrighted material online, and how to reason about the amount of material appropriate to include.
What is needed is a collective interpretation of fair use for the higher education in general community (not and never a negotiated settlement with entities that have a record of opposing higher ed’s assertions of fair use!). Until that time, it will take acts of courage to resist bullying from copyright holders attempting understandably to maximize their advantage in a rapidly changing business environment. And that is another crying shame. Because no one should have to be courageous to use their rights. Professors and university general counsels should, like filmmakers , film scholars and media literacy teachers, be able to employ their fair use rights as a simple and ordinary part of their work lives.
Thanks to Prof. Peter Jaszi, Washington College of Law, American University for a close legal read of this post!
The noncommercial/commercial distinction has not been very helpful, partly because the platforms that are the new distribution mechanisms for everyone tend to be commercial, and therefore even if your work is noncommercial, it floats onto the Internet via commercial platforms. Making this distinction the key to fair use also unhelpfully shackles emerging business models. But fair use is actually quite robust as is, and is grounded in a combination of transformativeness (did you use the material for a different purpose?) and appropriateness (did you use just enough). This creates a floating public domain for current work, and is enthusiastically supported by judges (despite what large content companies want non-large content companies to believe).
Oh Rupert. Fair use has never been in better shape and more widely used, and yes, you do use it all the time at Newscorp, no more obviously than in all your news reports. For more fair use info, especially for online video, documentary filmmakers, and media literacy teachers, check out centerforsocialmedia.org/fairuse. Sheesh.