Feature Articles

Will Fair Use Survive?
by Walt Crawford

Marjorie Heins and Tricia Beckles of the Free Expression Policy Project (FEPP, a project of the Brennan Center for Justice at NYU School of Law) have written Will fair use survive? Free expression in the age of copyright control. In print form, it’s a 67-page 7x10" “saddle-stitched” publication, two columns of conservatively designed, highly readable print, published December 2005. (It’s 29 signatures or 76 pages including cover; the text occupies 58 pages, followed by 258 endnotes.) You can order copies by sending email to kafayat@nyu.edu or you can download it as a PDF file and print it yourself. You can also reprint it (it’s covered by a Creative Commons license), preferably letting FEPP know if you do.

The report is first rate. Every library should have a print copy. Any librarian who cares about fair use—which should be almost any librarian—should at least glance through it, and should probably read it in full. I might differ with the authors on their interpretation of a couple of the incidents noted, but not on any of the major themes or the situation as a whole. This is good stuff—a well-researched, well-documented study of what’s actually happening in the area of fair use. Maybe you should skip the rest of this essay and go download the report instead.

Setting the Stage

That’s the short version. The longer version follows. I was flattered by Marjorie Heins’ cover letter, which ends, “I hope you see fit to mention the report in Cites & Insights. Your commentaries are always tough and thought-provoking.” (Two sentences from a four-paragraph letter, included for the purpose of commentary and with no conceivable commercial impact on Marjorie Heins…classic, if trivial, fair use.)

I have a history with FEPP. In September 2004 I commented on The information commons: A public policy report, taking considerable issue with Nancy Kranich’s approach and conclusions. On the other hand, I’ve mentioned their work quite a few times, usually favorably, sometimes with caveats.

I don’t have any serious caveats this time around. My personal sense of ethical use might differ from FEPP’s sense of what might be fair use in one or two of the real-world cases that constitute the bulk of this report. Those are matters of opinion, too minor to even mention here.

The report, prepared in conjunction with the Chilling Effects Clearinghouse, discusses what’s happening with fair use—the abuse of cease and desist letters and tendency to avoid uses that may be legally and ethically appropriate for fear of infringement suits. It’s not just theory; it’s real-world examples.

If you believe in balanced copyright, copyright that serves the needs of creators, users, and would-be creators of new material—copyright that serves “to promote the progress of science and useful arts”—fair use helps maintain that balance. If would-be users must request permission every time they wish to use any portion of any copyright work, new creations will be crippled.

At the other extreme, if copyright ceases to exist (if anyone can quote or reuse any portion of any published item for any purpose without permission or compensation), many worthwhile new articles, books, and other creations will never be prepared in the first place. Fair use is a key part of the balance, and it can be stronger in the United States than in many other nations—but only if it is used and defended.

Once Over Lightly

A one-page executive summary notes one major purpose of fair use and its trademark equivalents: To assure that “the owners of ‘intellectual property’ cannot close down the free exchange of ideas.” You could say that’s not quite right, since ideas aren’t copyrightable, but the reality is that as soon as ideas are expressed they enter the realm of copyright. “These safeguards…are at risk today” because of cease and desist letters and, perhaps worse, “take-down” notices to ISPs pressuring them to remove online speech without any court ruling of illegality. Additionally, many creative industries push for a “clearance culture”—the idea that any quotation requires permission, no matter how small—and educational “fair use guidelines” are probably narrower than they should be.

The summary describes what went into the report: An analysis of more than 300 cease-and-desist and takedown letters; an online survey; focus group discussions; telephone interviews with people involved in fair use situations. They conclude that almost half of the cease-and-desist and takedown letters from the Chilling Effects website “had the potential to chill protected speech.”

The introduction includes a brief history of fair use, offers more detail on the practices that endanger free expression and fair use, and discusses activism and alternatives. After a chapter on the legal landscape come chapters on the focus groups, Chilling Effects controversies, telephone interviews, the online survey, three pages of conclusions, and six specific recommendations.

Here are the recommendations in full:

Ø    1      Create a clearinghouse on fair use and other free expression issues in IP law, with information that is easily comprehensible and gives practical guidance. Include clear explanations of the DMCA take-down and counter-notice provisions.

Ø    2      Survey ISPs on their DMCA take-down procedures; then work with them to assure that anyone whose online speech is targeted gets adequate information and help in preparing a counter-notice.

Ø    3      Create a national legal support backup center, with a network of pro bono attorneys and IP law student clinics, and a clearinghouse of legal pleadings and other resources.

Ø    4      Work with bar associations to assure that educational outreach campaigns deal even-handedly with fair use. Investigate the possibility of sanctions against lawyers who send frivolous cease and desist letters.

Ø    5      Work with arts service organizations to investigate possibilities for alternative errors and omissions insurance and for statements of best practices.

Ø    6      Investigate opportunities for amending IP law to reduce penalties, to eliminate money damages against anybody who reasonably guesses wrong about a fair use or free expression defense, and to create alternative dispute resolution mechanisms whose decisions, if obeyed, would relieve an accused infringer of money liability.

If some of those recommendations don’t make a lot of sense, you need the background provided by the report itself. If they do, you need the report to provide evidence to back the recommendations.

I’m not going to go through the whole report chapter-by-chapter or point-by-point. There’s too much here and you can read the report a lot faster than I can write such a detailed discussion. I learned quite a bit from the brief history—and even more from the other chapters. (You gotta love Groucho Marx and his response to Warner Brothers, producers of Casablanca, when they threatened to sue if he didn’t change A Night in Casablanca: “Up to the time that we contemplated making this picture, I had no idea that the city of Casablanca belonged exclusively to Warner Brothers.” The Marx Brothers picture was released; WB didn’t sue.)

Just a few notes and anecdotes:

Ø    Most filmmakers today get permission for everything, no matter how small, because the Errors & Omissions insurance required before commercial distributors will handle movies doesn’t allow for fair use.

Ø    Although specific limits in published classroom-use guidelines are stated as minimums, they are often regarded as maximum limits for classroom duplication, thus narrowing the scope of fair use.

Ø    Courts are inconsistent in their fair-use rulings.

Ø    Some faculty members believe they can pretty much do anything they want. That isn’t helpful—but neither is the idea that every quotation used in a book requires prior clearance.

Ø    One filmmaker wanted to use 10 seconds from The Wizard of Oz for an experimental document—and found that the minimum fee was $5,000 for one minute. “Any more than that, a lot more.” Given the situation with E&O insurance, unfortunately, this person’s comment makes sense: “I never even learned that expression fair use. I just thought: copyright—call right away.” The same person wanted to copy from a documentary that turned out to be government work, thus automatically public domain—but it cost $250 to get a lawyer to prove it was public domain before PBS would use the results. That’s pretty cheap for legal help, actually.

Ø    One scholar told about not using reproductions of specific works that might have fallen under fair use—because she asked for permission, and when it was denied she didn’t feel she had a choice.

Ø    Most takedown letters received by the Chilling Effects Clearinghouse in 2004 came from Google (which removes the challenged listings and replaces them with a link to Chilling Effects). Of 320 letters analyzed, FEPP concluded that 17 had a strong fair use or First Amendment defense; 37 involved weak trademark or copyright claims (if there’s no legitimate trademark or copyright, fair use isn’t an issue); 13 involved “reasonable but not strong” fair use/First Amendment claims; and 86 items might be defensible based on fair use, but there’s not enough information to tell. Roughly a quarter of the letters pretty clearly potentially chilled protected free speech, and another quarter might have.

Ø    When people fight back, they frequently win. Of 17 letters where FEPP believed there was a strong fair use or First Amendment defense, ten people did not remove their sites (or temporarily removed and later restored them). In a number of interviews, FEPP found that people who responded clearly frequently got corporations to back off—particularly if they had legal assistance, pro bono or paid.

Ø    Some infringement claims border on the bizarre. Remember when Village Voice was a radical organ? More recently, the owners sent a cease and desist letter to the Cape Cod Voice, asserting trademark infringement and dilution—and saying it had succeeded in getting Bloomington, Dayton, and Tacoma Voice newspapers to change their names. The Cape Cod Voice’s managing editor called it “an absurd claim”; the publication kept its name. There’s Pet Friendly, Inc., a maker of rope chew toys, which asserted trademark infringement by Pet Friendly Travel and started sending invoices of $7,000 per week for unlicensed use of the name. Fortunately, various “Pet Friendly” businesses were in touch with each other and ignored the invoices.

The report also includes the perspectives of copyright owners. It draws four major conclusions:

Ø    Artists, scholars and others are aware of fair use—but many are vague about what it means or believe that there are actual numerical limits on what can be borrowed. “There is an urgent need for accurate information.”

Ø    Prevailing practice affects the ability to use fair use. In the film world, a “clearance culture” and E&O insurance “have nearly obliterated fair use.” At the other extreme, some students, activists and artists “freely appropriate copyrighted or trademarked material for creative purposes.” While the report correctly says “more support for fair use and free expression is needed in the communities where these principles are most threatened,” I would add that education and balance are needed where fair use and copyright are abused.

Ø    Substantial numbers of cease and desist or takedown letters state weak claims or seek to suppress material that may be protected by fair use or the First Amendment. “The disconnect between prevailing law and the claims made in many cease and desist or fair-use letters is striking.”

Ø    Many recipients of cease and desist letters who resist are not sued—but many recipients do acquiesce, possibly chilling protected speech. Unfortunately, with DMCA-based takedown letters, there’s little chance to resist or negotiate. Better information might help.

Publications such as this landmark study may help more people to understand the nature of fair use and the need to protect and defend it. Congratulations to Marjorie Heins and Tricia Beckles; a fine job.

All original material in this work is licensed under the Creative Commons Attribution-NonCommercial License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc/1.0 or send a letter to Creative Commons, 559 Nathan Abbott Way, Stanford, California 94305, USA.

Cites & Insights v. 6 (2006) is now available in hardcopy (8.5x11 trade paperback) form for $29.50 from Cites & Insights Books (http://lulu.com/waltcrawford/).