For Sale: Doctrine, Hardly Used

This beginner’s guide to fair use, courtesy of NPR does a decent job of explaining how the concept exists in current practice, but it does very little to explain why it is so fundamentally important.  This Electronic Frontier Foundation primer on intellectual property rights for bloggers is also fairly practical, if not particularly philosophical.  That’s why I’m here.

Fair Use is the feature of Copyright law that creates space for an individual to comment, critique and generally reproduce a copyrighted work without enabling the copyright holder to censor that discussion.  In drafting the Constitution, the framers themselves contemplated what is now referred to as the “Copyright bargain,” whereby content is supposed to move to the public domain after “limited Times,” in order to allow subsequent generations to freely use that content in any way and continue to build on the corpus of human thought and expression.  However, “limited Times” quickly revealed itself not to be so limited,(1) and the shoulders of giants remained unladen by discourse or critique.

In a democratic and open society, there is a latent need for freedom of comment on a work, which may necessarily using parts of the work to point out its faults or virtues, before its Copyright term is up. Thus, Fair Use was regarded as so important that it was once implied as a necessary feature of Copyright law because of inherent limitations imposed by the First Amendment.(2)  Since Congress originally hadn’t provided for a Fair Use exception, the Supreme Court had to do some line-drawing in various cases that were not the result of policy decisions as to what would be best for free speech in society, but what was the minimum level required by the Constitution.

Of course, judge-made doctrine is unnecessarily scary and unpredictable when the copyrighted content industry (i.e., “Hollywood”) can readily control a pliable Congress (that should have been drawing a bright line to begin with) through campaign cash and lobbying, while Article III judges serve for life and are somewhat more immune to that sort of influence.  Thus, Congress eventually adopted and codified the judge-made doctrine of fair use in 17 U.S.C. 107, and made the law mushy and uncertain ever since.  Instead of drawing readily understandable bright lines that should have been included within the Copyright bargain to begin with, the Fair Use doctrine is a multi-factored balancing test that makes lawyers cringe.(3)  Every case that could arguably argue fair use is so fact-specific and subject to arbitrary judicial interpretation (since no particular statutory weight is assigned to any given factor) that it undermines the soundness of fair use as a legal strategy.  This legal regime makes sense if you’re Hollywood, and you want to be able to control the content that you own from outside, unauthorized (i.e., free) use, so you call anything that might use or transform your work piracy.  Instead, lawyers concentrate on whether or not any “copying” actually took place, whether the work is “derivative,” or whether the “idea” is what’s copied rather than the “expression,” and so on.  Essentially, lawyers create more work for themselves; call it stimulus if you like.

The problem here, aside from the legal warfare that essentially creates artificial transaction costs, is that the freedom of expression is not particularly well-countenanced by Congress.  It’s the definition of a dispersed benefit, while the concentrated costs would be borne by people who already “own” the copyrighted works and have vested interests in protecting their statutorily-granted monopolies.  Therefore, the political economy is dead-set against change, and “Mickey Mouse will live forever.”(4)    What is lost is the vast untold potential creativity that is stifled by the impulse to wring every last dollar out of Mickey Mouse’s persona; what is created is unavoidable conflict and warfare between vested interests and a generation that doesn’t understand the old regime’s concept of Copyright.(5)  As the Tao Te Ching sagely observes, “The more laws that are written, the more criminals are produced.”

So, what’s the prognosis, you ask?  Without a firm line in drawn in favor of Fair Use, the law will continue to evolve (or stymie) on both sides of the line of what is constitutionally and philosophically necessary for a free and open society.  Without some Congressional reform, legal strategy will probably keep Fair Use in an uncertain muck, limiting its value to creators.   Eventually, technology and economics will eventually moot the question by making the vested interests economically powerless (note the slow death of “Hollywood”), but can a democratic society afford to wait and patiently wage the war it will take to bring them down?  Congress shouldn’t let that happen, but it probably will without strong political opposition to Copyright as it currently exists.

To that end, may I suggest the meme of, “If you’re pro-life, you should be pro-creation”?  Tell your friends.

Notes

(1) Any work created after 1923 is still subject to Copyright protection.

(2) Folsom v. Marsh, 9 F.Cas. 342 (1841).

(3) See this quick and dirty summary of the balancing test used if you’re interested.

(4) See note 1.

(5) See generally, Lessig, Lawrence, Remix: Making Art and Commerce Thrive in the Hybrid Economy.