Friday, March 26, 2010

Recent reading: beyond fair use

Gideon Parchomovsky & Philip J. Weiser, Beyond Fair Use, 96 Cornell L. Rev. ___ (2011)

This is an interesting piece, one I’m still mulling over, arguing that because fair use is failing in many of the things we want it to do—particularly when the DMCA is taken into account—the law should incentivize content owners to offer some use privileges, initially by letting them define the contours themselves and, if that fails, through mandates that would draw on information about practices developed through voluntary actions.

This is a plausible solution, they suggest, because many copyright owners are already voluntarily relaxing the total control to which some descriptions of copyright aspire. The authors contend that their proposal “holds a great promise of creating a greater level of certainty as to what users are allowed to do with respect to digital content and empowering users to become more sophisticated purchasers of digital content. By contrast, demand side solutions, by and large, relegate[] users to a life of uncertainty as they require them to determine whether their planned use falls within the aegis of the current fair use doctrine—a near impossible task given the vagueness of the fair use doctrine.”

I found the article long on descriptions of models for allowing limited personal copying, notably Windows Media DRM, and short on evidence of market success. When was the last time (or, heck, the first time) you bought a WM license from MediaKey? Me neither. And I’ve tried a lot of new-media experiments—I paid for Stephen King’s The Plant; I possess DRM-protected pdf files, though that was a mistake.

I’m not saying such models won’t work for listeners/readers/viewers when integrated with sufficiently attractive tech and content (e.g., the Kindle). I’m saying that this creates a bewildering array of silos of different sets of permissions. Matters are even worse with the authors’ examples of permissive remix—they offer a handful of idiosyncratic examples, some of which aren’t even operational (the AP has “promised” to establish a policy indicating its opinion on how many words of an AP story one may quote without paying the AP—I’m not holding my breath) and few of which represent much more than an attempted contraction of fair use by setting rules for which fair uses the copyright owner is willing to permit. That is not how user privileges, especially those for uses beyond private copying, should (or can) work.

xkcd breaks it down:

I think the problem of content owner-defined rights may be connected to the numerus clausus principle as ably elucidated by Thomas Merrill and Henry Smith: we limit types of property more than we limit the customizability of contracts, so that people can more easily tell what they’re dealing with when they encounter a piece of property. Fair use can be hard to predict, yes, but it can be a lot easier than parsing out a contract—and once you learn the fair use factors, you can make a judgment call about every fair use situation you encounter, instead of having to learn a new set of permissions every time. This is why I think fair use principles focused on practice communities offer a really promising development. And it’s not as if licenses solve the interpretation problems of fair use; even setting problems of remix aside, which I’m unwilling to do, consider the massive uncertainty surrounding the definition of “noncommercial” in a Creative Commons license. The authors are well aware of the need for simple, clear rules, unlike the average privacy policy. I just doubt that multiple private actors will do better than fair use at providing such rules (with the exception of "you can make as many copies of this as you yourself have devices").

Final note: the DMCA is important to their argument, yet the authors don’t propose anything to cut back on the powers granted by the DMCA. Even if content owners grant permission to circumvent technological measures, you’d still need fancy footwork to allow people to provide the devices necessary to take advantage of such permission—and content owners are unlikely to provide the relevant tools themselves, preferring to provide specially chosen bits and pieces when they allow some remix. At a minimum, we’d need some DMCA exemptions focused on taking advantage of content owner authorization.


  1. >>"once you learn the fair use factors, you can make a judgment call about every fair use situation you encounter, instead of having to learn a new set of permissions every time."

    I agree with your post in general, but it is incredible to see a quote like this coming from you. Learning what the fair use factors are is not so difficult, but making a judgment call about fair use in a given situation is exponentially more difficult. You'd have to learn how the various circuits view the fair use factors for your particular situation. Do you expect the average Youtube remix uploader to read even one case? Maybe we should refer them to Barton Beebe's "An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005".

    Even before getting to that stuff, the 4 factors are terribly vague. Much of the scholarly community for fair use has acknowledged just how much uncertainty affects artists:

    -James Gibson, "Risk Aversion and Rights Accretion in Intelletual Property law"

    -Molly Shaffer Van Houweling, "Distributive Values in Copyright"

    -Michael W. Carroll, "Fixing Fair Use"

    et al.

    Our choice of solution is still up for debate, of course, but we can't pretend that everyone is running around making informed fair use judgments. Even if they did, that wouldn't stop them from being taken to court, which is already a huge deterrent to remixing and other derivative works. As it is, many artists exists at the sufferance of copyright owners, hoping they don't receive a nasty letter in the mail one day.

  2. I think you make a good point that even if content providers begin to loosen restrictions on copying/sharing, the legal roadblocks to the devices will likely remain (see recent DVD-copying software decision). I'd rather just throw out the DMCA and start over, but what are the chances of that happening? Cutbacks and/or exemptions would be a start, though.

    Disclaimer: I'm just a college student beginning to study IP, and have not legal background whatsoever. Please forgive my somewhat immature/undeveloped approach to the topic.

  3. grimp: thanks for the comments. It is certainly not the case that fair use litigation is highly predictable, but then that's true of many cases that go all the way to judgment, in part precisely because the parties' predictions of the outcomes are such as to make settling less attractive than proceeding. What I mean when I say that you can make a judgment in each case you encounter is just that: if you know the factors, you can do your best to apply them. It's vanishingly unlikely that everyone else will agree with you on each call, but there are ways to proceed with tolerable certainty. Very few instances of copying end up with lawsuits, after all, so our non-litigation default rules matter. And I'd rather have people doing their best with the four factors than trying to figure out what the copyright owner says is ok in each individual case.

    Part of fair use is intuitive: golden-rule like--behave so as not to do to others as you wouldn't like to have done to yourself, which generally points to transformation, noncommerciality, quoting, and so on and away from wholesale commercial copying. I don't disagree with Gibson et al. about how copyright owners' claims affect practice once people receive C&Ds, though I think there are measures we can take to push back even without litigating--that's why I mention things like best practices codes. Societal consensus on general principles, like the acceptability of remix, can do what formal law can't.

  4. Grimp5:50 PM

    >>"What I mean when I say that you can make a judgment in each case you encounter is just that: if you know the factors, you can do your best to apply them."

    And it will be absolutely meaningless, since lawyer intuition in a given example is different from lay intuition. Amount and substantiality sounds like "don't copy large parts of a song," but lawyers know from Campbell that even small samples can take the "heart" of a song, even if it wasn't a problem in that case. The four factors on their own sound like they'd make sense to anyone, but they are shaped by the caselaw and anyone who seriously wants to assess their work's character as a fair use would have to understand where the boundaries really are. I'm not saying this is a good thing, everyone should be able to quickly and easily understand the boundaries of fair use, but it is simply not the case.

    >>"Part of fair use is intuitive... which generally points to transformation, noncommerciality, quoting, and so on and away from wholesale commercial copying."

    That's the ideal, yes, but plenty of cases have come up involving uses that are not wholesale commercial copying. The Harry Potter Lexicon case, the Seinfeld Quiz case, sampling cases, etc. Fair use is a spectrum, yes, but it weakens long before it approaches wholesale commercial copying.

    >>"Very few instances of copying end up with lawsuits, after all, so our non-litigation default rules matter."

    True. But that only means we make our remixes at the sufferance of copyright owners. If a particular remix becomes famous enough, the threat of lawsuit becomes more credible. Obscurity is a friend, but not a very good one. I agree that society is a good engine for change, but advising people to just do their best is going to create a lot of unwitting "activists." Shouldn't we be expressing frustration at how little power this right actually grants artists?

  5. No one would argue that fair use in the litigated cases is a model of predictability. But broad social practices do matter, which is one point of articles like Jim Gibson's as well as of things like AU's Center for Social Media's fair use guidelines, developed for laypeople. Suing a few individuals for what is a normatively acceptable, widespread social practice (like using a VCR was becoming by the time the matter reached the Supreme Court) is not just a PR problem; it risks legal defeat.

    As activists, we can tell people that they can be sued for mentioning a trademark owner or referencing a copyrighted work, consistent with the broadest possible interpretation of the law, or we can tell people that fair use exists and that, as Peter Jaszi says, it's like a muscle: it gets stronger when exercised. Because a copyright owner can always send a C&D and even sue (even when it can't always win), the former is a recipe for surrendering the rights that still do exist. The latter is, in my opinion, both realistic and manageable. I disagree that we exist at sufferance, and having lots of people asserting fair use rights makes it less likely that fair users do exist at sufferance. See, for example, Stross's successful action against Stephen Joyce, pushing back against a permission-only culture. I myself have seen copyright owners back down when a fan asserts fair use rights.

    None of this is to say that things are great. But, especially with legislative reform unlikely, there are ways to make the existing scheme more accommodating. The vast expansion of copyright owners' rights/claims in the past few decades came in significant part through copyright owners' activism in convincing courts that the derivative works right, the reproduction right, etc. were incredibly broad; copyright restrictionists have the same tools available to them. And part of that is fighting for the breathing room that does exist.

  6. grimp8:29 PM

    You make a fair point. Still, I feel more comfortable with activism when people explictly sign up to get involved. Gay marriage activists cannot tell people that it is legal in states in which it is not, merely to influence norms those states. I think the more honest semantic tack is one that veers toward an "exercise your rights, lest they disappear" tone. I just felt that your post sounded more like advice than advocacy.

  7. See, I reject your analogy: The state is only involved in saying whether a use is fair in extremely unusual cases; and also, "is your marriage valid in the state in which it was entered into?" is not ordinarily a question that could reasonably answered with "it depends." Both of these distinctions are important to the differences between us, but the former is, I think, more important. Anyone participating in culture is involved in constituting fair use, by what they do and by what they refrain from doing out of fear that someone might threaten them. It is a serious mistake to let copyright owners be the only ones who say in public what fair use is, and have no hesitation saying so.

  8. You're absolutely right, but those artists who want to dive into fair use practices that are more prone to litigation should know what they're getting into.

    It's not that I agree with Parchomovsky and Weiser; content owners should definitely not be the custodians of fair use and neither should we define societal norms by reference to theirs. My real gripe is that there is simply more to fair use than the four factors, and failing to at least point artists to sources of further information does them a disservice. that said, we shouldn't scare them off or try to dissuade them from doing what they want to do, either.

    Even the XKCD comic you've included doesn't simply advise people to exercise their fair use rights for DRMed media; it advises that doing so may violate DMCA 1201 and says "If you don't like this, demand DRM-Free files." That's the approach I'm advocating (though really I'd rather change the DMCA).

  9. Then we may not be that far apart. As I said in the original post, "[t]his is why I think fair use principles focused on practice communities offer a really promising development." In a blog post, as opposed to a counseling session, I'm satisfied with that as a statement. I'm also happy to support some legislative reforms; that fair use exists for those who know about it (or simply follow their intuitions) leaves us still very far from perfection.

    Part of a vibrant free culture is a diversity of emphasis, and that is perhaps where we are.

  10. Exactly. Now if we could just figure out a decent venue to make those reforms while the artists are busy reinforcing the norms, we might start the gears turning a little bit.

    Do legislative reforms sound any more feasible to you than going the judicial route?

  11. I'm not particularly sanguine about legislative reform, no, but Jessica Litman and Pam Samuelson, among others, have done really good work about what a true copyright revision should look like. If you made me copyright czar, I'd like Larry Lessig's idea of putting all noncommercial remix outside the scope of copyright.

  12. grimp6:36 PM

    I'm on board with that, but no matter what the substantive policy, neither the courts nor the legislature seem particularly reform-ready. I'm doing an independent study course at law school to consider this problem and it's been nothing but frustration.