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, 1 May 2013 @ 8:45am

    Re: Re: Re: Re:

    You know, I think a great deal of your confusion comes from your belief that an affirmative defense is the same as a privilege.

    I don't think that at all. A privilege is a type of jural relation defining the legal relations between different people with respect to a thing. See, e.g., Black's Law Dictionary (9th ed.) ("A privilege grants someone the legal freedom to do or not to do a given act. It immunizes conduct that, under ordinary circumstances, would subject the actor to liability.").

    An affirmative defense is an allegation made by a defendant to defeat a plaintiff's prima facie case. See, e.g., Black's Law Dictionary (9th ed.) (An affirmative defense is a "defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true. The defendant bears the burden of proving an affirmative defense.")

    For example, you have the right to not be shot dead by me. Say I shoot you dead. Your estate would have a wrongful death action against me. After your estate proved its prima facie case of wrongful death, the burden would shift to me to prove an affirmative defense. I could escape liability by proving that I had the privilege to shoot you dead because I was acting in self defense. Or I could prove that you were an enemy soldier and I exercised my privilege to kill you on the battlefield while following the law of war. My privilege operates procedurally as an affirmative defense, but that doesn't mean that a privilege is the same thing as an affirmative defense.

    In fact, if a work makes fair use of another person's work, then the original author has no rights at all over the "fair use work." That the use is a fair use is not a result of being granted a privilege; but a limitation on the statutory rights granted to copyright holders.

    Correct. And a limitation on someone else's rights is called a privilege. Your privilege to make fair use of my work defeats my right to exclude you from copying. Your privilege excuses behavior that, but for the privilege, would violate my exclusive rights.

    Put another way, fair use is no more a "privilege" than is the fact that facts can't be copyrighted.

    Fair use is a privilege because it "immunizes conduct that, under ordinary circumstances, would subject the actor to liability." Without the fair use privilege, your copying would be infringement.

    If it is indeed physically locked away in a vault, then my right to free speech would be trumped by your rights to privacy and private property (the "property" being the physical manuscript, not the expression written on it).

    On the other hand, the copyright version of "lock it in a safe" is to not publish it. But let's say that I got my hands on your unpublished work. Would I be allowed fair use of your work, even though it's unpublished?

    Yes, I would. And that is explicit in the statutes: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."


    Well, the fact it's unpublished would cut against you in the fair use calculus. See, e.g.,
    Perhaps because the fair use doctrine was predicated on the author's implied consent to “reasonable and customary” use when he released his work for public consumption, fair use traditionally was not recognized as a defense to charges *551 of copying from an author's as yet unpublished works.4 Under common-law copyright, “the property of the author ... in his intellectual creation [was] absolute until he voluntarily part[ed] with the same.” **2226 American Tobacco Co. v. Werckmeister, 207 U.S. 284, 299, 28 S.Ct. 72, 77, 52 L.Ed. 208 (1907); 2 Nimmer § 8.23, at 8-273. This absolute rule, however, was tempered in practice by the equitable nature of the fair use doctrine. In a given case, factors such as implied consent through de facto publication on performance or dissemination of a work may tip the balance of equities in favor of prepublication use. See Copyright Law Revision-Part 2: Discussion and Comments on Report of the Register of Copyrights on General Revision of the U.S. Copyright Law, 88th Cong., 1st Sess., 27 (H.R.Comm. Print 1963) (discussion suggesting works disseminated to the public in a form not constituting a technical “publication” should nevertheless be subject to fair use); 3 Nimmer § 13.05, at 13-62, n. 2. But it has never been seriously disputed that “the fact that the plaintiff's work is unpublished ... is a factor tending to negate the defense of fair use.” Ibid. Publication of an author's expression before he has authorized its dissemination seriously infringes the author's right to decide when and whether it will be made public, a factor not present in fair use of published works.5 *552 Respondents contend, however, that Congress, in including first publication among the rights enumerated in § 106, which are expressly subject to fair use under § 107, intended that fair use would apply in pari materia to published and unpublished works. The Copyright Act does not support this proposition.
    Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 550-52 (1985) (emphasis added).

    But let's change the facts of my hypo so that the work is published. Say I write a manuscript of a book, and exactly 10 copies are made and sold publicly at Barnes & Noble. I go to B&N, buy all 10 copies, and I lock them in my safe with the original manuscript. If fair use were a right, you would be able to take me to court and to obtain a court order that I grant you access to the manuscript or a copy so that you could exercise your fair use right to copy. But clearly no such action exists. I have no duty to give you access to my book. Your fair use is in fact only a privilege, and I can lock up my books to prevent you from exercising your privilege and there's nothing you can do about it. You can only exercise the privilege if you are able to, and my locking up the books means you are not able to.

    Change the hypo again, and this time say that you and I entered into a contract where you promise to copy from my book to make fair use of it. Now, because of the contract, you would have a legally enforceable claim against me. You then could get a court to order that I provide you with a copy of the book so that you may perform your part of the bargain. That would be a right, and though it's contractual, it's nonetheless an enforceable right.

    See the difference?

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