Fair Use Protects Some Uses, But It Is Still Way Too Weak To Be Effective For Many

from the we-need-to-exercise-it,-but-it's-still-scary dept

A few weeks back, we wrote about Andy Baio's excellent video concerning the limits of fair use, in particular his awful and soul-wrenching experience being sued for infringement in a situation that was almost certainly fair use. Baio eventually settled for $32,000 rather than deal with a long and expensive trial that might end poorly. Baio points out that even when we have fair use, the fact that you can still be sued and can still have to fight your way through the court system is incredibly scary, and creates a chilling effect on creativity.

Following that, Pat Aufderheide, one of the world's foremost experts on fair use, and someone we've discussed before, wrote a response to Andy's presentation challenging some of the claims he made, and arguing that people need to strongly exercise their fair use rights and that we shouldn't be fearful of such lawsuits. Aufderheide, along with Peter Jaszi, have been creating "best practice" guides in fair use for creators to rely on, hoping that having some clear and accepted guidelines will help creators more confidently express and use their fair use rights.
What happened to Andy Baio is creepy. But Andy inadvertently is making things even worse. He generalizes dangerously from his experience, and spreads wild and false charges in the last part of his presentation. The chilling effects of his talk could be considerable.

He claims, astonishingly, that “fair use is not a law.” Uh, it’s section 107 of the Copyright Act. Like other parts of the law that protect free expression, it is applied by courts case by case; you exercise it in context, and courts take that context into account.  That doesn’t make it “not a law,” nor does it make it impossible to apply. Creative people make judgments all the time about whether our works are obscene, libelous or treasonous, for example; there are no bright lines there, either, but we act with confidence, knowing the law is on our side.

True and False.

Andy warns ominously that “anyone can sue you for anything, always, and even without grounds.” Yup. That is true, and just as true for obscenity, libel, or treason charges, and in a million other places in life. If someone slips on the sidewalk in front of your house after a snowstorm, or chokes on an appetizer at your dinner party, or objects to your choice of lawn furniture, they can sue you. Copyright trolls like Prenda are suing people who have done nothing at all. But we somehow conduct our lives and even have dinner parties knowing this ugly reality.

He warns fellow remixers everywhere, “fair use will not save you,” and “nothing you have ever made is fair use.”  Whoa. Neither of these statements is true.

When two people who I normally agree with are in disagreement with each other, I sit up and take careful notice. It surprised me at first to see these two clear supporters of remix culture and of fair use disagreeing so vehemently with each other. I think they both make points that are correct, as well as points that are exaggerated for effect. I think that the two would actually agree more than they disagree, and the disagreements are much more in the margin than is implied above.

While Aufderheide is correct that there are lots of things that people can sue you over, those kinds of lawsuits are not the same as what Baio was talking about, in a few ways. First, the statutory damages associated with copyright are so out of line with any potential harm created by the situations that Baio is talking about. If the requirement involved some showing of actual damages and/or much lower statutory damages, I would be more inclined to agree with Aufderheide on this point. Second, while she is correct that fair use has been "riding high" in a number of court cases lately, that is not always the case. Fair use determinations by courts quite frequently have the appearance of arbitrariness. I've seen copyright lawyers note that it is possible to make the four factors test in fair use come out on either side in almost any case if you really want to. That uncertainty and that risk is a concern.

I applaud, wholeheartedly, Aufderheide and Jaszi's tireless work at reducing that uncertainty with their attempts to "reclaim fair use." And I hope that one day, the uncertainty will be greatly minimized. But we really are just not there yet. Baio's case is hardly an outlier.

As for Baio's claim about fair use and the law, he was making an inexact statement that within the context did, in fact, make sense. Yes, fair use is a part of the law, but copyright maximalists, and some courts, have treated it merely as a defense, rather than a direct right. This is almost certainly a misreading of the law, because the law states clearly that a fair use is not an infringement ("the fair use of a copyrighted work... is not an infringement of copyright") but if fair use is merely a defense than there would have to first be infringement. So, clearly the courts have misread the law there. However, Baio's statement was about the practical reality of this, in that in order for him to plead fair use, he effectively has to go through a full legal process, which is timely, costly and risky.

I agree that we need to "reclaim" fair use and that one way to do this is to continue to exercise those rights. But I don't think it's right to suggest that relying on fair use is a guaranteed safe place under the interpretations of the law today. Should it be? Yes. Should we strive to drive the law and the judicial decisions in a way that establishes a clear safe place for fair use to occur? Absolutely. And while Aufderheide and Jaszi have done incredible work on that front, the points Baio made still ring true for the vast majority of people who might face the threat of a copyright infringement case concerning a fair use remix, or another transformation of a copyright-covered work.

Filed Under: andy baio, fair use, pat aufderheide, peter jaszi


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  1. identicon
    Anonymous Coward, 30 Apr 2013 @ 8:57pm

    Re: Re:

    The explanation I put in the post was explained to me by one of the top copyright experts in the country. I'll let him know what you think.

    I came off a little snarky, so I apologize. This is actually quite simple, and I hope I can explain it to you so that you understand the issues. Let's start with the House Report: "Fair use is an affirmative defense, and as such is relevant only after a copyright owner has made out a prima facie case of infringement. A prima facie case of infringement consists of ownership of the right asserted and unauthorized appropriation by the defendant of a material amount of expression." H.R. Rep. 102-836 at *3.

    The Supreme Court confirmed that fair use is an affirmative defense in Harper & Row: "The drafters resisted pressures from special interest groups to create presumptive categories of fair use, but structured the provision as an affirmative defense requiring a case-by-case analysis." Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 561 (1985).

    And the Court reiterated it in Campbell: "Since fair use is an affirmative defense, its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994).

    The way it works is this: The plaintiff files a complaint with the court in which he alleges that the prima facie elements of copyright infringement have been met, i.e., plaintiff's ownership of the exclusive right plus defendant's unauthorized copying. The defendant then files an answer, admitting or denying the plaintiff's allegations and stating any affirmative defenses he may have such as fair use.

    The defendant can attack the plaintiff's prima facie case, arguing that the plaintiff didn't own the copyright or that the defendant didn't copy the work. Or the defendant can state an affirmative defense such as fair use wherein the defendant argues that even though the plaintiff has stated a prima facie case (ownership plus copying), the defendant's copying is excused.

    Where this matters is with the burden of proof. The initial burden of proof is on the plaintiff to make out his prima facie case. He has to prove that he owns the copyright and that the defendant engaged in unauthorized copying. Once the plaintiff has made out his prima facie case, the burden then shifts to the defendant to prove his affirmative defense of fair use. It is only AFTER the plaintiff has proved his case that fair use comes in. If the defendant can prove his use was fair, then it is not infringement. And if the defendant cannot prove his use was fair, then it is infringement.

    So when the law states that "the fair use of a copyrighted work... is not an infringement of copyright," that is true. It's not infringement because the affirmative defense of fair use negatives the plaintiff's prima facie case. You say "but if fair use is merely a defense than there would have to first be infringement," but that's not how it works. It's an affirmative defense because the plaintiff first makes out his prima facie case of infringement, and then the defendant tries to prove his fair use defense to escape liability. And if the defendant can't prove fair use, the plaintiff wins since he has proved his prima facie case.

    You say "some courts . . . have treated it merely as a defense." This implies that there exist a court which has not treated it as a defense. I suspect that you have no evidence to back that up for the simple reason that it is actually a defense. You claim that fair use is a "direct right," but that's clearly not the case. Not even a copyright owner has the RIGHT to copy. The exclusive right only gives the owner the right to exclude others from copying--that's why it's called an EXCLUSIVE right.

    The owner of a copyright can copy the work that he owns because he has a privilege to do so, not a right. Similarly, others have the privilege, but not the right, to make fair use of a copyrighted work. A right gives someone a legally enforceable claim, while a privilege merely allows someone to do something that but for the privilege would give rise to liability.

    That fair use is a privilege and not a right is easily demonstrated. If I write a book and own the copyright therein, you would have the privilege of making fair use of my book. To prevent you from copying my book, I can lock it in a safe and not permit you access. If you had a right to copy my book, I would have a duty of noninterference to allow you access to the book. You would also have a legally enforceable claim against me, and you could petition the court for relief and obtain a court order forcing me to allow you access to the book so that may copy it and exercise your fair use right. But obviously no such claim for relief exists. If fair use were a "direct right" as you claim, you would have that claim against, but since it's just a privilege, you don't.

    Hope this helps.

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