Thoughts on Fair Use

Because of technology, copyright today affects many more people than ever before. Copyright is something that only people with access to copying and distribution equipment have to worry about. but even a $29 cell phone can be used to make and distribute copies worldwide. A $1000 computer hooked up to the internet is an amazingly efficient and powerful copying and distribution machine with worldwide reach. Copyright law has gone from being something esoteric that affects publishers and the mass media to being something that affects the average citizen on a daily basis. It affects the way we not only create culture but engage in normal uses of cultural items and personal records.

Fair use is not a business model. It is a limited affirmative defense to a charge of copyright infringement. As such, publishers seek to avoid having to rely on fair use. The result is that fair use in practice exists far within the bounds of the law of fair use. It is much cheaper to obtain a license than to go to trial to defend a copyright infringement lawsuit.

As a result of this calculus, there is a paucity of fair use decisions (especially appellate decisions). Because the actual structure of fair use is entirely a judge-made common law, the fewer decisions available, the less case law support exists for advocating particular interpretations of fair use. What in-house counsel wants to make their fair use case into an expensive test case?

This creates a feedback loop, where the legal departments of publishers are exceptionally cautious about matters of fair use-- with good reason-- and will require creators to obtain licenses before publishing any work that incorporates quotes or snippets of other works.

Among publishers, there exists a permission-based culture where even clear de minimis or fair uses are licensed as a matter of basic risk aversion and sound business practice. This is especially easy because publishers do not bear the cost of obtaining licenses. In the record industry, sample clearances are a recoupable expense and are ultimately borne by the artist, not the label. In publishing, authors bear the cost of obtaining clearances.

In addition, the publisher gets more revenue for each of these granted licenses. While not necessarily a tremendous amount of revenue, it might be enough to have a measurable impact on revenues.

A fascinating empirical study would look at the cost of the permission-based culture. It would calculate the cost of licenses obtained by publishing houses, record labels and/or film studios, compare it against the revenues obtained from granting similar licenses and then examine which of those uses might be considered a fair or de minimis use. (If anyone wants to fund this study, drop me a line!)

The Stanford Copyright & Fair Use Center has an excellent brief summary of fair use cases. One theme that recurred over the course of the conference was the need to fully litigate more fair use cases. Unfortunately, there is little business interest to litigate these cases. Since it is a matter of public interest and First Amendment free speech interests, but not in anyone's business interests, this is an area where even more public interest non-profit legal services organization would serve the public interest. The Stanford Fair Use Project (which is seeking an executive director) and the Brennan Center Free Expression Policy Project are examples of this kind of public interest organization. But with limited resources, they can only litigate a small number of important test cases each year.

A legal services organization could offer creators and copyright owners low-cost, heavily subsidized counsel in litigating a greater volume of fair use cases…

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