Fair use in the digital era

I spotted an interesting piece in the Benton Foundation Comm Policy news service this week, concerning issues of copyright and intellectual property rights. It relates to a recent report by the Brennan Center for Justice ("Will Fair Use Survive?", authored by Marjorie Heins and Tricia Beckles and available in downloadable PDF format.).

The report was "the product of more than a year of research - including many firsthand stories from artists, scholars, bloggers, and others," and "paints a striking picture of an intellectual property system that is perilously out of balance." The core of the report is a call for the legal doctrine of fair use to be reaffirmed and strengthened in the digital age "so that it can be an effective tool for anyone who contributes to culture and democratic discourse."

Fair use is a long-standing concept in American law that allows people to use copyrighted material, in certain limited circumstances, without the permission of the copyright holder. As the Stanford University Libraries website notes, "Most fair use analysis falls into two categories: commentary and criticism; or parody." Traditionally, there has been a fair amount of flexibility granted under the umbrella of fair use. But, the Brennan report holds, this flexibility is fast disappearing. The Benton service notes the report's following key findings:

• 1) Artists, writers, historians, and filmmakers are burdened by a "clearance culture" that ignores fair use and forces them to seek permission (which may be denied) and pay high license fees in order to use even small amounts of copyrighted or trademarked material.
  
• 2) The 1998 Digital Millennium Copyright Act (the DMCA) is being used by copyright owners to pressure Internet service providers to take down material from their servers on the mere assertion that it is infringing, with no legal judgment and no consideration of fair use.
  
• 3) An analysis of 320 letters on the Chilling Effects website, an online repository of threatening cease and desist and "take down" letters, showed that nearly 50% of the letters had the potential to stifle protected speech.

In response to these challenges to fair use,

The report recommends: A) creating a clearinghouse for information, including sample replies to cease and desist and "take down" letters; B) outreach to Internet service providers who are instructed by companies to take down sites with material they claim as copyright-protected; C) changes in the law to reduce the penalty for guessing wrong about fair use; and D) the creation of a national pro bono legal support network.

Certainly something needs to be done to protect fair use. Otherwise, it will become very difficlut or even impossible for people to use any digital matrial for any purpose without having to ask permission and/or pay someone for the privilege. And that would be deleterious to robust democratic debate. Remember, copyright law is supposed to find a balance between, on the one hand, enabling creators of original material to make a reasonable profit from their works for a fixed period of time, and on the other, enabling creative works to enter the public realm in order to spark new creative and democratic output.

The balance is shifting very much against the public realm. Another major strike in favor of the copyright holders came last June, when the Supreme Court, in MGM v. Grokster, ruled that Internet file-sharing services, such as Grokster (a service run by StreamCast Networks Inc) and Morpheus can "be held responsible if they intend for their customers to use software primarily to swap songs and movies illegally." In a surprise move, the justices also unanimously rejected "warnings that the lawsuits will stunt growth of cool tech gadgets such as the next iPod." The BBC characterized the ruling as making clear that the "file-sharing companies are to blame for what users do with their software." It seems clear from the ruling that the Court believed Grokster could be facilitating illegal activity, i.e., copyright infringement.

The case had been "brought by 28 movie and music makers who claimed that rampant piracy was denting profits." Even though the Supreme Court justices had been expected to rule in favor of the file-sharers - because of legal precedents such as a 1984 case involving Sony's Betamax VCR (Sony Corp v. Universal City Studios), they didn't do that. Instead the Court has set aside the precedent (and lower court decisions) because they determined that "the makers of a technology have to answer for what people do with it if they use it to break the law." Notes the BBC:

In the ruling Justice David Souter wrote: "The question is under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product."

He added: "We hold that one who distributes a device with the object of promoting its use to infringe copyright ... is liable for the resulting acts of infringement by third parties."

The BBC also noted at the time that the decision could "have an impact on any technology firm developing gadgets or devices that let people enjoy media on the move. If strictly interpreted the ruling means that these hi-tech firms will have to try to predict the ways people can use these devices to pirate copyrighted media and install controls to stop this infringement." And indeed, this does seem to have happened. According to Wikipedia, Grokster - which "was forced to pay $50 million to the music and recording industries" - announced in November that it would cease its P2P (peer-to-peer) file-sharing service. Furthermore:

Fearing lawsuits similar to MGM v. Grokster, Mark Gorton, the chief executive officer of the firm that produces LimeWire, has said that he plans to stop distributing his file sharing program. He explained this by saying

"Some people are saying that as long as I don't actively induce infringement, I'm O.K. I don't think it will work out that way...[the Court] has handed a tool to judges that they can declare inducement whenever they want to."

In order to download the free LimeWire client, users must now first agree to the statement "I will not use LimeWire BASIC for copyright infringement.