AU Fair Use event: Best Practices in Fair Use/the Future

Jaszi: DMCA left us somewhat bruised; the next time we set out to do something useful, we asked what could be done without requiring congressional authority?  Go back to 1991, when film scholar Kristin Thompson was prominent in the Society for Cinema Studies—membership consisted almost exclusively of film scholars who wanted to write monographs and articles doing close analysis of movies, most of them commercial, and were being told by publishers that they couldn’t illustrate w/stills from films under discussion w/o © clearance.  Movie studios had one of three answers: (1) we don’t know who has the rights; (2) go away; (3) licensing fee that was practically impossible to pay.  Many articles were published w/o illustrations or with line drawings to suggest characteristics of frames under discussion.  SCS decided that it had had enough of this and assembled a blue ribbon committee of distinguished scholars to write a document about why what we want to do with film stills is fair use.  Published in an issue of their journal, sent offprints to publishers, gave them to scholars to give to publishers—and the practice changed. All the publishers needed was a nudge toward doing the right thing, a reason to feel higher level of security about self-evident proposition that scholars should be able to use relevant illustrations.  That niche changed, and no one else noticed—except at one point they called Jaszi for some information.

 

Mike Madison was another key person.  Article: Pattern-oriented approach to fair use.  Jaszi realized that the same thing that happened to film scholars happened to other people—Pat Aufderheide knew about the documentary community.  Documenting what people in the field think and do can cause change in the legal environment.  We’ve worked with a number of different groups on this, and so far, so good.

 

Prof. Michael Madison – University of Pittsburgh School of Law

 

Intellectual/industrial-technological history threads came together in his work.  Intellectual: (1) idea of fair use as market failure.  Wendy Gordon’s influential 1982 paper: not intended to be doctrinaire/market-oriented piece, but academy understood it that way.  Cast a long shadow over copyright scholarship; even today, still cited as paradigmatic fair use analysis.  (2) Campbell v. Acuff-Rose (1994), borrowing Leval’s concept of transformativeness and the Sony dissent on productive use.  Started to shift the conversation 10 years after Sony; pendulum was beginning to swing in different direction.  As with Gordon’s framing of market failure, it was very much focused on individual author, work, user/consumer—a one to one analysis of the specific instance, classically liberal framing.  Industrial-technological: (1) DMCA, 1998 comes into effect at the moment Madison was starting to teach.  The idea of ISP as critical actor is introduced; people are wondering how this will actually work in practice. What happens when you start to scale notice and takedown from one work at a time, as framed when legislation was discussed, to large-scale batch processing?  Still wrestling with this in almost exactly those terms.  (2) Napster.  A crisis—converging around personal/private use, a concept lurking in the background at least since the Betamax case.

 

Did not create a grand synthesis.  Instead, found patterns going back for centuries.  A way of using social science research to create an affirmative theory of fair use, not just a gap-filling transactional theory—fair use is a good thing for the same reason that © as a whole is a good thing.

 

Prof. Patricia Aufderheide – American University School of Communications: How would you find out whether © was constraining particular creators’ imaginations?  We got that study funded, and everything went from there. Front-row seat to experience of self-censorship, and what it takes to assume responsibility and fight back against profoundly warping effects of internalizing self-censorship.  Filmmakers were proud of being professional and surviving in a difficult environment, which means never thinking at all about a project you can’t execute, because you put your company/investors at financial risk. The list of things they know they can’t do turns out to be long: they now see what looks like self-censorship.  Their response was to begin to get angry.  Often at us: you should do something about this! 

 

It takes a while to convince them that if they’re complicit in this problem, and they could do something, they should do something to clarify what already exists in the law.  They wanted lawyers to fix it, but lawyers weren’t having the problem: the creative people were!  Once the filmmakers owned the problem, then they got angry. Anger was based in ethical understanding of fairness. They needed rights/ownership; in order to do that, they swallowed their sense that it was wrong to have to pay for Happy Birthday when it was recorded incidentally.  When they understand what the law permits, they get a sense of alignment b/t their sense of ethics and the law.  Law permits me to charge people for full copies, and permits me to engage in fair use: balance. 

 

Self-censorship, once learned, goes deep. When we started, no one would accept fair use—filmmakers, insurers, broadcasters—now everyone does accept it.  Even so, they haven’t given themselves permission to dream as big as fair use is—we asked what they’d do if they had no copyright concerns at all, and most of the answers would be ok under fair use.  Filmmakers seek to act in fair and ethical ways.

 

Visual arts: people tell artists that permission is always required all the time. It’s such a constraint on ability to act. People end up with projects like bonsai trees: nicely done, vigorous effort to survive under really constraining conditions.

 

Kyra Darnton – RetroReport: Short documentaries for places like NYT website—61 in 2 ½ years.  Nonprofit, mission of bringing context and perspective to today’s news by re-reporting and re-analyzing older stories to see their continuing relevance.  E.g., epidemic of “crack babies” in the 1980s.  We investigated and found out that the claims were all based on 1 study of 23 babies, not controlled for alcohol, maternal lifestyle, etc. and yet had real policy implications.  Hyperbolic reporting can harm policy.  We knew early on it couldn’t be a print venture—need to see and understand the images that were important to the story: night after night, news watchers saw the jittery “crack baby,” who was actually jittery because it was premature, not b/c its mother had smoked crack.  Asking whether what we’re doing is fair use has helped us sharpen what we want to say. 

 

Heather Briston – University of California Los Angeles Library: As an archivist, has learned from best practices more how to help our users.  Sense of mission: archives change lives.  If you don’t let us change lives because you won’t allow us to digitize things, we aren’t fulfilling our mission. Important across libraries and archives, public and private, b/c they all have that same mission at heart.  ARL best practices have begun to transform what we are able to do. We integrated those best practices into our digitizing practices.  We aren’t separating material into copyrighted or not, because that would destroy collections.  We put our digital process online so other repositories could use this to develop/free their collections online.  Surfaces otherwise hidden riches; potential heirs don’t object but may ask for copies.  Makes thinking about fair use scalable—employ grad students to select material for digitization and do initial review of materials to see if it’s owned, copyrighted, fair use.  They usually have subject matter but not legal expertise; we help them work through and summarize the issues.  Created a group of young potential scholars/digital arts & design students w/ a greater understanding of the role of copyright and fair use in their work.

 

Also helps archivists and librarians to have talking points with general counsel, who often are not experts in copyright.  After stopping themselves from self-censoring, they may have to go through the next set of gatekeepers—best practices allow education of general counsel. We’ve been able to put up full collections online, such as the Los Angeles Aqueduct Digital Platform—history of Southern California’s relationship with water.  Extensive collections of African-American and Latino history in Los Angeles. 

 

Codes also empower us to bring to the table what we know as archivists—confidence to work through the legal issues by knowing the value of our archives.

 

Rachelle Browne - Smithsonian Institution: Best practices for museums.  As nonprofits w/educational missions, museums often rely on fair use.  Gifts often don’t mention copyright or are unclear.  May be impossible for museum to determine whether it owns © in physical object it owns; new museum employees often believe that owning the object means owning the ©, but we quickly disabuse them of that notion.

 

Writers for museum journals often had trouble securing electronic rights for images in their articles.  As a result of discussions, we decided to modify journal’s contributor contracts, which say that freelance writers are responsible for paying any required permissions, leaving open the possibility of fair use analysis; to help contributors, we will develop and publish guidelines, probably linked to CAA fair use principles; sometimes contributor will contact licensing agencies w/o journal’s knowledge and try to get a license; as a practical matter, journal needs an ongoing relationship with the agencies b/c some uses (like cover images) may not be fair use; we don’t want contributors jumping the gun and trying to license fair use. We will try to modify our agreement w/ our third party database provider. The agreement says the journal is responsible for obtaining permissions for all illustrations—she wants the flexibility of fair use (of course, © law itself provides the permission for fair use, as we heard in Lenz). Finally, rethink our own relationships with licensing agencies. We are risk-averse; we’ve been overpaying and over-licensing.  We need to pull back a bit.

 

We’ve occasionally been asked by the licensing agencies to pay for public domain materials.

 

Carrie Russell, ALA: Students are often told to get permission for everything in their dissertations—a huge problem.

 

Michael Carroll: © owners complain that they weren’t in the room when best practices were put together.  Your thoughts?

 

Aufderheide: Has heard Fritz Attaway (MPAA) muttering that it’s risky to follow these guidelines, but when I ask why, he won’t answer.  Every major studio has used the Code to make their own fair use decisions. Commercial archives have used the code to tell filmmakers when they can and can’t use fair use.  Clarity is valuable for everyone. Major rights holders aren’t much interested in challenging them.

 

Madison: at level of application/practice, that’s accurate. At more general level, from the beginning of presenting drafts of my paper, I heard outright challenges to the legitimacy of this framework—it’s not appropriate to do this without including the relevant rightsholders—people from the Hill said it—an effort to control the politics of the dialogue, not the mechanics on the ground.  Pushback w/in the copyright scholarly community—generally sympathetic, but criticism nonetheless.  Jennifer Rothman: was skeptical that it would work; was concerned that it would be underinclusive; in some ways experience proved that wrong.  The longer we go into actual practice of forming, using, and thinking about the missions of fields/institutions, the more it works in practice.

 

Darnton: we’ve had interactions w/ an archive that said, we understand you used fair use for this one use, but if you ever want to go beyond that, here’s our number.

 

Brandon Butler: Why does this work better than lawyers telling you that fair use is big and broad?

 

Aufderheide: b/c people in the field are bombarded by counterinformation all the time, in part from people acting w/goodwill—rights experts have learned long ago that everything has to be cleared.  At film festivals & conferences, they hear from lawyers whose only job is to get business and clear rights for them, so the lawyers talk about how dangerous the world is. More generally, they need to take ownership of the process themselves.

 

Jaszi: Funders like Mellon and Ford have found out that if a project like this is going to be effective, they need to fund both development of a code and its dissemination. We work very hard to educate members of a community about a code, once developed.

 

Briston: being developed w/in a community is important. Nothing like sitting down and discussing what we think is fair. We’ve been lectured to, but not asked.  Peer learning, as they say in higher ed.  Archivists can tell each other things we wouldn’t hear if said by lawyers.

 

Adam Eisgrau, ALA: If there were a defense fund that a famous documentarian were to fund, what effect would that have?

 

Jaszi: might be a good thing, but to do that kind of test litigation, you’d first need plaintiffs willing to come forward. We’ve been at this 10 years and we haven’t had a lawsuit against anyone using these codes of best practices.  Maybe practitioners would be bolder with a defense fund, but he’s not sure.

 

Madison: Gets asked what a court is supposed to do with these codes, which are voluntary.  General response: the point of a code is to stop that.  Raising a fund for the defense invites the kind of litigation we’re trying to empower people to avoid.  Raises a political concern that the presence of money on the table contaminates the volunteer community self-governance coloration of the movement.  Everyone at the table is in this for the mission, regardless of institution/practice community.  Money can leave you open to the charge that someone is putting you up to this.

 

Darnton: In 61 films, I can’t think of one instance where we had a strong argument we wanted to make that we couldn’t.

 

Directions Forward

Prof. Rebecca Tushnet – Georgetown University Law Center

 

Thank you to Peter, Pat, Mike, Meredith, everyone else who got us here.  When I entered the field at the turn of the century I thought I would spend my career working only in academics, because there was so little chance for progressive copyright reform.  Back in 2009, Peter gave us advice on advocating for our DMCA exemption for video remix, which I first thought was unwinnable and now is largely conceded by the MPAA.  Even right after I testified in that round, I wrote in my journal: “Today I did a very good job at something where the extent to which I did a good job doesn’t matter.”  Given that experience, when Peter asked me to talk about the next ten years, I decided not to make predictions.

 

Instead, I will give my wish list for what we will be working towards, both as academics and as activists.  First: Communicating fair use, correcting common misconceptions, taking fair use further into the classroom—for students as well as teachers. Building on the “everything I needed to know I learned in kindergarten” idea—be fair; share; you can learn a lot by copying someone at the appropriate time.  Second: Internationalizing fair use and flexible fair dealing.  Encouraging moves in the UK, South Africa, but much remains to be done.  Third: Expanding our focus to trademarks, the right of publicity, and design patents (where there is no statutorily defined fair use defense at all, and people are increasingly patenting digital interface elements and logos).  Exemplar: Public Citizen, spearheaded by Paul Alan Levy, made the same kind of move that Peter described for EFF, but did it in trademark.  Trademark public interest bar is just beginning to become more organized, following the copyright and utility patent bars.

 

As the great sage Hillel wrote: If not now, then when?  Picking up from Brandon’s tribute to his students: If not me, then who?

 

Sherwin Siy – Public Knowledge: The how of reform.  Advocate for/against relevant bills; give staff background through meetings, giving them perspective on how these issues affect students, consumers, etc.  Executive branch: file comments in rulemaking settings; convince agency staff of the importance of good, fair copyright policies and let them be a bully pulpit for how access can work.  Judicial: impact litigation; client service—giving advice, like New Media Rights does.  Amicus briefs.  If you can’t make good law, make good dicta.

 

Reach out to the public; talk to the press; tell the story of what’s happening and why it matters.

 

Gridlock.  Established interests that are at least comfortable, if not entirely happy, with the status quo direction of the law.  They’ve at least made peace with what the law can do and what they can do with the law or the market by throwing their weight around. Then there are people who want change—both damaging and good. Those voices are competing in a field against both volume and inertia, and competing in the wider political realm w/1000 other issues. 

 

There’s a world of people interested in these issues, but as many as there are, the world of people affected is much larger—for every 100 people who care about the DMCA, there are 100,000 who haven’t given it a single thought. Only a few flashpoints reach beyond the inner circle.  Grind away at what must be done, but also spread awareness b/c more people create more potential for change; we want to reach people to grow the movement.  Large copyright owners have become aware that public opinion actually matters; that awareness may hurt the pipeline of people prepared to become activists.  Geeks are exercised about net neutrality and less so about fair use b/c the horrifying abuses they’ve seen have come from Comcast, not from the major labels.

 

It’s about culture: not everyone’s an activist.  Even if they don’t call their senators, attitudes move the world/set norms.  That affects the law as well; can obviate the need for changes in the law. In fair use, intent matters immensely to purpose/character and effect on the market—what markets we are and aren’t willing to accept.  Reaching out to other communities for their experiences is a way to keep that circulation going.

 

Joshua Lamel – Re:Create

 

How many of us have created something and uploaded it in the last 24 hours?  We are all creators now; care about upload speed as much as download. Re:Create is trying to tell the stories on that side, explaining what balance is and why we need it.  Shifts that are coming: will have more real data to use in advocacy.  A lot of storytelling as well.  Other side has stories about the cameraman who lost his job; we have stories about the cameraman who made $40,000 on YouTube last year.  Unlocked a creative revolution.  But Congress isn’t hearing about how, even in LA, people believe that the internet has been good for creativity and has democratized creativity.

 

In 1976 or 1998, to produce a video and distribute it to a million people would be difficult and expensive.  In 2015, it is part of the sunk cost of your phone and your internet access—a profound change. 

 

Our issues have also become more bipartisan, with the return of libertarianism as well as progressivism.  Bringing together groups normally not associated w/each other. 

 

Madison: Lawyers do deal in data, we just call it evidence.  The things we heard about today have had traction when at other times they haven't is in part b/c we sometimes idealize and abstract ideas of community, culture, progress in ethereal terms. Here we put meat on those bones with nuance and detail necessary to tell the stories persuasively. Communities have places and their content matters. Hard work of getting into aspects of creative practice; norms of community--important lesson for strategizing the next phases of progressive copyright reform.  "Everyone is a creator" is true in the abstract, but it's even better to identify the Harry Potter Alliance.

 

Then there was some discussion of the use of copyright to achieve non-copyright aims--from stopping annoying Times Square actors to stopping people from modifying their cars.  Statutory damages are an unusual and significant hammer that makes everything look like a nail.  Maybe we need a threats action to deter wrongful takedowns more than 512 does and wrongful infringement claims.