Fair Use: Rickety?
William Patry has a post on the CleanFlicks decision. It’s consistent with my thoughts. He emphasizes the fact that “transformation” in the process of creating a derivative work is distinct from “transformativeness” in the fair use analysis — another matter on which the court included some unfortunate and confusing dicta.
More interesting is his overall conclusion:
Still, the case highlights once again, the square peg in the round hole problem that is rapidly overtaking fair use analysis.
It certainly does. And Patry’s observation also reminds me of a comment by Siva Vaidhyanathan at a conference I attended recently at the University of Maryland, where he expressed concern that the fair use doctrine was “too rickety” to apply to the diverse range of activities it has been called upon to support in recent litigation. He said these disputes (and particularly the Google Library project) implicate many essential public values and that it was a mistake to ask that so many different types of problem get analyzed through a mechanism that evolved to deal with a much narrower set of circumstances. I take it that is what Patry means about square pegs and round holes too.
Some people at the conference disliked thinking of fair use as “rickety.” They consider it robust, flexible, content-neutral, and so forth. But I think Patry and Vaidhyanathan are probably right. We may be heading for a crisis point where fair use cannot respond to all these different applications, from file-swapping to parody to reverse engineering and so forth. The problem is that I am not sure what the alternative could be. Congress is ill-suited to devise specific statutory exemptions for these sorts of unpredictable issues.
Maybe courts need to take more seriously the proposition (which is right there in the statute) that fair use is more than just the mechanical application of the four enumerated factors, and that judges may also include other considerations. Rather than wedging some important point into one of the four factors where it does not really fit, perhaps courts should be more willing to acknowledge that a crucial factor to their decision is in the “other” category. At least that could help avoid creating awkward precedent that later judges feel obliged to apply in factually distinct scenarios.
Filed under: Copyright, Education & Copyright, Scholarship
Is Fair Use too Rickety?…
William McGeveran considers the question: … Some people at the conference disliked thinking of fair use as “rickety.” They consider it robust, flexible, content-neutral, and so forth. But I think Patry and Vaidhyanathan are probably right. We may…
It’s only a problem because the default has shifted: When Congress said “everything is copyrighted”, I don’t think they truly understood what it meant for everything to be copyrighted. But the more that default is employed, the more copyright is stretched, the more pressure it puts on fair use. We now have to look to fair use, or beg for specific statutory exemptions, to protect behaviors that might well have previously been excluded as “not infringing a copyright”.
And yes, if fair use is to be the catch-all defender, then it has to move beyond the mechanical and faux-objective adding up of factors to figure out the result.
[...] That allows a clearer view of what seems to me the more fundamental question. It may be time to revisit whether scanning, even though it is literally a form of reproduction, should be considered more like machine-assisted reading, at least when the purpose is the kind of data-crunching of either indexing (as in Google) or analyzing linguistic patterns. These are projects formerly completed by laborious analog effort. When done in that fashion, neither a library card catalogue nor a dictionary represents even a close call on copyright infringement — both are perfectly legal. Is it sensible that automating that process, which is the only way to deal with the modern explosion of information, should convert such innocent acts into infringements? If the fair use doctrine as currently constructed is not the place to work all this out (as I discussed here), then should we change copyright law, either through Congress or the courts, to permit such scanning explicitly? [...]
[...] I was already an admirer of Patry, whose copyright blog is top-notch. I have linked to it many times, generating some of my own favorite posts (such as here and here). His diversity of experience in copyright law is also quite remarkable: it includes private practice, significant tenures in Washington working for the House subcommittee that handles IP and for the Copyright Office, and a stint as a law professor. Now, in addition to his treatise work, he is copyright counsel to Google. [...]