June 24, 2003
Been a little busy with work and travel lately, so I figured I’d do what I do best: say little about a lot.
I think Seth ended his comments quite nicely on the After Eldred thread. It includes some of what came out of that debate, but ultimately brings us right back to where we started: how would you get the Court to say, “The Eldred decision establishes the contention that fair use is a guarantee of access to copyrighted material” or something to that effect. Yep, that’s tricky.
That makes me think of what Volokh mentioned in his article. To make this argument work, you probably have to argue that the First Amendment includes conduct. Volokh used the example of a law prohibiting news gathering being offensive to free speech protections for news reporting. I don’t what the caselaw is like in this area, but this seems like the right line of attack.
Of course, that reasoning only works if you have an expansive view of fair use and how integral the conduct is to the resulting speech. That’s why scientific research is probably a good line of attack.
But, given how little room the Courts have given fair uses like parody and criticism, we might still be out of luck. Over the last few days, I’ve been going over court rulings on parody and criticism and other “derivative” reuses. I am always thoroughly annoyed when I read these rulings. Not only are they rather narrow, but they’re unbelievably confusing.
I guess it all starts with the unwieldly fair use test. The factors are vague, and they have no inherent weight (although some have tried to divine a consistent pattern from past practice). Even when the court gave parody some breathing room in Acuff-Rose, they indicated that in future cases other fair use factors might nullify the import of parody. Every case will be treated on its own merits, and each slight difference could be important. Who knows what the standards will be next time.
What feels very odd to me is how parody, which probably would be protected regardless of section 107, gets treated on the basis of the section 107 test. If Congress took away section 107 (which might NOT alter the traditional contours of fair use), how would the Court treat parody? (I know there’s plenty of law in other areas about Congress amending Court-created/interpreted standards, like with the RFRA and City of Boerne. How would those apply here?)
All that said, I wonder if the next big copyright case will come from the area of parody or transformative reuse. Sampling and collage seem to be much more a part of mainstream culture than discussions about back-up copies and such. Of course, the sampling we hear daily is licensed. But there are artists all over using cheap editing software and the Internet to make their works available. I wonder if the next case will come at a time when those unlicensed works really are mainstream. If that time ever comes, how will the Court be affected by public opinion?
“If that time comes” – that’s always an important qualifier to remember when it comes to future court decisions. Seth is right that it’d be absurd to say that Eldred, today, stands for a right of access. What it will stand for tomorrow, though, is anyone’s guess. A large part of tomorrow’s meaning rides on how our culture changes in relation to copyrighted works. We lead, and the Court may follow.
(Realists would disagree, particularly one’s like Seth, who cite corporate interests as the driving force behind Court policy. I think that ignores a lot of the Court’s history and much of what happens today. We learned yesterday that, at least as long as O’Connor is around, we can expect the Court to choose muddled, confusing decisions over ones that would cause extreme public uproar.)