by Walt Crawford with contributions from various sources.

Library leaders need to understand fair use and some of the controversies surrounding it. This article may help.

Basics

Fair use is the principle that some uses of copyright material are legitimate and may be done without permission from the copyright holder. Strong copyright advocates tend to put scare quotes around the two words, i.e. “fair use,” as if to deny that there’s really such a thing as fair use. DMCA, DRM, and proposed laws would generally restrict fair use by substituting controls wielded by copyright holders.

While fair use is a set of principles, it’s also a law, albeit a somewhat less-than-specific law—Section 107 of Title 17 of the U.S. Code (that is, copyright law)::

Sec. 107. - Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

That's the law (in the U.S.). Unfortunately, as you can see, it's not a neat list of crystal-clear guidelines. (Note that other countries have laws and principles such as “fair dealing” that may work very differently than U.S. fair use.)

When someone says fair use isn't the law--as people in the traditional big media coalitions tend to do--they're claiming that the law is only a set of defenses for infringement cases.

Copyright extremists work to replace fair use with a “permissions culture,” in which any use of copyright material must receive explicit permission from the copyright holder. You already see the extremes of “permissions culture” in areas such as motion pictures (where studios insist on clearing even incidental occurrences, such as a program on a TV in the background of a documentary) and song lyrics (where copyright holders assert that permission and payment is required to use even one line within a publication.

Fair Use and Libraries

Libraries rely on copyright. Without copyright to encourage creation and dissemination, you would have fewer available resources. Academic librarians work to assure that faculty members understand copyright restrictions—that they don’t feel free to copy and distribute anything, anytime, if it suits their needs. Public librarians post appropriate warnings on copying machines. When public libraries find (or project) that demand for an item exceeds current holdings, libraries buy or lease additional copies—they don’t expect to be able to replicate the books or sound recordings with no compensation to the author and publisher.

In return, first sale and fair use rights enable libraries to do their jobs. Once a library purchases a book, sound recording, or DVD, it is free to circulate that item without further payment to the publisher or creator. It may sell the item when it’s no longer needed, give it away, or lend it to another library, entirely within the bounds of copyright law. In most cases, libraries may also lease items for temporary use.

Problems in this area fall into two general categories: Digital rights management (DRM), which might better be called digital restrictions management, and the use of licenses to override balanced copyright. In the first case, DRM combines with extreme copyright law to make things worse. When the Digital Millennium Copyright Act became law in the late 1990s, the basis was that copyright holders needed better tools to fight digital piracy. DMCA provided those tools—and also created a whole new class of crime that causes unfortunate side effects.

The Electronic Frontier Foundation has released a series of publications with the primary title Unintended Consequences, dealing with the consequences of DMCA. The most recent version is Unintended Consequences: Ten Years under the DMCA.

DMCA’s warping of copyright balance is bad enough that Business Week has run more than one story denouncing its provisions. Its proponents have become surprisingly public with their assumptions that all consumers are thieves at heart, that fair use does not exist, and that reasonable expectations of purchasers and users should be overridden in the name of copyright.

Want to use a five-second excerpt from a movie on DVD to illustrate a point in a multimedia paper or classroom setting? Fair use says you can—but CSS as enforced by DMCA says you can’t, and fair use is not a defense against DMCA.

Will Fair Use Survive?

Excerpted and adapted from Cites & Insights 6:1, January 2006.

One of the best commentaries on recent issues in fair use and free expression is Will Fair Use Survive? Free Expression in the Age of Copyright Control prepared by Marjorie Heins and Tricia Beckles, then of the Free Expressions Policy Project (FEPP). It’s a 76-page PDF, highly readable, most recently updated in November 2005.

Every library should have a copy. Any librarian who cares about fair use—which should be almost any librarian—should at least glance through it, and should probably read it in full. I might differ with the authors on their interpretation of a couple of incidents noted, but not on any of the major themes or the situation as a whole. This is good stuff—a well-researched, well-documented study of what’s actually happening in the area of fair use. Maybe you should skip the rest of this essay and go download the report instead.

The report, prepared in conjunction with the Chilling Effects Clearinghouse, discusses what’s happening with fair use—the abuse of cease and desist letters and tendency to avoid uses that may be legally and ethically appropriate for fear of infringement suits. It’s not just theory; it’s real-world examples.

If you believe in balanced copyright, copyright that serves the needs of creators, users, and would-be creators of new material—copyright that serves “to promote the progress of science and useful arts”—fair use helps maintain that balance. If would-be users must request permission every time they wish to use any portion of any copyright work, new creations will be crippled.

At the other extreme, if copyright ceases to exist (if anyone can quote or reuse any portion of any published item for any purpose without permission or compensation), many worthwhile new articles, books, and other creations will never be prepared in the first place. Fair use is a key part of the balance, and it can be stronger in the United States than in many other nations—but only if it is used and defended.

Once Over Lightly

A one-page executive summary notes one major purpose of fair use and its trademark equivalents: To assure that “the owners of ‘intellectual property’ cannot close down the free exchange of ideas.” You could say that’s not quite right, since ideas aren’t copyrightable, but the reality is that as soon as ideas are expressed they enter the realm of copyright. “These safeguards…are at risk today” because of cease and desist letters and, perhaps worse, “take-down” notices to ISPs pressuring them to remove online speech without any court ruling of illegality. Additionally, many creative industries push for a “clearance culture”—the idea that any quotation requires permission, no matter how small—and educational “fair use guidelines” are probably narrower than they should be.

The summary describes what went into the report: An analysis of more than 300 cease-and-desist and takedown letters; an online survey; focus group discussions; telephone interviews with people involved in fair use situations. They conclude that almost half of the cease-and-desist and takedown letters from the Chilling Effects website “had the potential to chill protected speech.”

The introduction includes a brief history of fair use, offers more detail on the practices that endanger free expression and fair use, and discusses activism and alternatives. After a chapter on the legal landscape come chapters on the focus groups, Chilling Effects controversies, telephone interviews, the online survey, three pages of conclusions, and six specific recommendations.

Here are the recommendations in full:

1. Create a clearinghouse on fair use and other free expression issues in IP law, with information that is easily comprehensible and gives practical guidance. Include clear explanations of the DMCA take-down and counter-notice provisions.
2. Survey ISPs on their DMCA take-down procedures; then work with them to assure that anyone whose online speech is targeted gets adequate information and help in preparing a counter-notice.
3. Create a national legal support backup center, with a network of pro bono attorneys and IP law student clinics, and a clearinghouse of legal pleadings and other resources.
4. Work with bar associations to assure that educational outreach campaigns deal even-handedly with fair use. Investigate the possibility of sanctions against lawyers who send frivolous cease and desist letters.
5. Work with arts service organizations to investigate possibilities for alternative errors and omissions insurance and for statements of best practices.
6. Investigate opportunities for amending IP law to reduce penalties, to eliminate money damages against anybody who reasonably guesses wrong about a fair use or free expression defense, and to create alternative dispute resolution mechanisms whose decisions, if obeyed, would relieve an accused infringer of money liability.

If some of those recommendations don’t make a lot of sense, you need the background provided by the report itself. If they do, you need the report to provide evidence to back the recommendations.

Just a few notes and anecdotes:

• Most filmmakers today get permission for everything, no matter how small, because the Errors & Omissions (E&O) insurance required before commercial distributors will handle movies doesn’t allow for fair use.
• Although specific limits in published classroom-use guidelines are stated as minimums, they are often regarded as maximum limits for classroom duplication, thus narrowing the scope of fair use.
• Courts are inconsistent in their fair-use rulings.
• Some faculty members believe they can pretty much do anything they want. That isn’t helpful—but neither is the idea that every quotation used in a book requires prior clearance.
• One filmmaker wanted to use 10 seconds from The Wizard of Oz for an experimental documentary—and found that the minimum fee was $5,000 for one minute. “Any more than that, a lot more.” Given the situation with E&O insurance, unfortunately, this person’s comment makes sense: “I never even learned that expression fair use. I just thought: copyright—call right away.” The same person wanted to copy from a documentary that turned out to be government work, thus automatically public domain—but it cost $250 to get a lawyer to prove it was public domain before PBS would use the results. That’s pretty cheap for legal help, actually.
• One scholar told about not using reproductions of specific works that might have fallen under fair use—because she asked for permission, and when it was denied she didn’t feel she had a choice.

Most takedown letters received by the Chilling Effects Clearinghouse in 2004 came from Google (which removes the challenged listings and replaces them with a link to Chilling Effects). Of 320 letters analyzed, FEPP concluded that:

• 17 had a strong fair use or First Amendment defense;
• 37 involved weak trademark or copyright claims (if there’s no legitimate trademark or copyright, fair use isn’t an issue);
• 13 involved “reasonable but not strong” fair use/First Amendment claims;
• 86 items might be defensible based on fair use, but there’s not enough information to tell.

In other words, roughly a quarter of the letters pretty clearly potentially chilled protected free speech, and another quarter might have.

When people fight back, they frequently win. Of 17 letters where FEPP believed there was a strong fair use or First Amendment defense, ten people did not remove their sites (or temporarily removed and later restored them). In a number of interviews, FEPP found that people who responded clearly frequently got corporations to back off—particularly if they had legal assistance, pro bono or paid.

The report also includes the perspectives of copyright owners. It draws four major conclusions:

1. Artists, scholars and others are aware of fair use—but many are vague about what it means or believe that there are actual numerical limits on what can be borrowed. “There is an urgent need for accurate information.”
2. Prevailing practice affects the ability to use fair use. In the film world, a “clearance culture” and E&O insurance “have nearly obliterated fair use.” At the other extreme, some students, activists and artists “freely appropriate copyrighted or trademarked material for creative purposes.” While the report correctly says “more support for fair use and free expression is needed in the communities where these principles are most threatened,” I would add that education and balance are needed where fair use and copyright are abused.
3. Substantial numbers of cease and desist or takedown letters state weak claims or seek to suppress material that may be protected by fair use or the First Amendment. “The disconnect between prevailing law and the claims made in many cease and desist or fair-use letters is striking.”
4. Many recipients of cease and desist letters who resist are not sued—but many recipients do acquiesce, possibly chilling protected speech. Unfortunately, with DMCA-based takedown letters, there’s little chance to resist or negotiate. Better information might help.

Additional Notes on Fair Use

Excerpted from Unintended Consequences: Ten Years under the DMCA, which is explicitly allowed by a Creative Commons BY-NC license--the same license used for LLN. Note that EFF represents what some would consider an extreme view on fair use--but such a view may be needed to balance media group attacks on fair use and the general reluctance of publishers and universities to assert fair use.

“Fair use” is a crucial element in American copyright law—the principle that the public is entitled, without having to ask permission, to use copyrighted works in ways that do not unduly interfere with the copyright owner’s market for a work. Fair uses include personal, noncommercial uses, such as using a VCR to record a television program for later viewing. Fair use also includes activities undertaken for purposes such as criticism, comment, news reporting, teaching, scholarship or research.

We are entering an era where books, music and movies will increasingly be “copy-protected” and otherwise restricted by technological means. Whether scholars, researchers, commentators and the public will continue to be able to make legitimate fair uses of these works will depend upon the availability of tools to bypass these digital locks.

The DMCA, however, prohibits the creation or distribution of these tools, even if they are crucial to fair use. So, as copyright owners use technology to press into the 21st century, the public will see fair uses whittled away by digital locks allegedly intended to “prevent piracy.” Perhaps more importantly, future fair uses will not be developed for restricted media because courts will never have the opportunity to rule on them. Fair users will be found liable for “picking the lock” and thereby violating the DMCA, whatever the merits of their fair use defense.

Fair Use Tools Banned: DVD Software

Fair use of DVDs has suffered thanks to DMCA lawsuits brought against DVD copying tools. There are many legitimate reasons to copy DVDs. Once the video is on the PC, for example, lots of fair uses become possible—for example, video creators can remix movie clips into original YouTube videos, travelers can load the movie into their laptops, and DVD owners can skip the otherwise “unskippable” commercials that preface certain films. Without the tools necessary to copy DVDs, however, these fair uses become impossible.

In the Universal v. Reimerdes case, discussed above, the court held that the DMCA bans DeCSS software. In another case, federal courts ordered 321 Studios’ DVD X Copy product taken off the shelves for violating the DMCA. Major movie studios also used the DMCA to sue Tritton Technologies, the manufacturer of DVD CopyWare, and three website distributors of similar software.

Movie fans, film scholars, movie critics, and public interest groups have all repeatedly asked the Copyright Office to grant DMCA exemptions to allow the decryption of DVDs in order to enable noninfringing uses. For example, exemptions were sought to allow movie critics to post movie clips, DVD owners to skip “unskippable” previews and commercials, and legitimate purchasers to bypass “region coding” restrictions on their DVD players. Every DVD-related request was denied in both the 2000 and 2003 triennial rulemakings.38 In 2006, a very narrow exemption was granted to allow media studies and film professors to create compilations of motion pictures for educational use in the classroom. The narrowness of this exemption was repeatedly emphasized by the Copyright Office: “If it had not been possible to define a class of works by reference to the users or the uses made of those works, it might have been difficult for the Register to recommend an exemption for this class of works.” This narrowness suggests future exemptions may only be granted if constraints can be placed on both the type of use and class of user—two heavy shackles on fair use.

Even if other narrow exemptions are granted in the future, it is worth noting that the Copyright Office is powerless to grant an exemption to the DMCA’s “tools” ban. As a result, fair users are likely to be left with fewer tools at their disposal, even if they succeed in obtaining a DMCA exemption—few companies will want to enter a market making tools that could subject them to lawsuit.

For more excerpts from this publication and additional notes on the effects of DRM and DMCA, see DMCA, DRM and Free Expression.

Other Developments in Fair Use

As noted in Google Books Settlement: Basics and Issues, Google chose to abandon what appeared to be a strong case for fair use, asserting that the Google Library Project scanning of in-copyright books in order to make full-text indexes available constituted fair use. By dropping the case and adopting a license, Google has weakened fair use by making it more difficult for later, similar projects to assert fair use.

As noted in Kindle and Ebook Reader Notes--and quite possibly directly related to the Authors Guild “victory” in defeating fair use by Google--Amazon had asserted an almost certainly valid fair use claim to support computerized text-to-speech “reading” for ebooks. After pressure by the Authors Guild, Amazon essentially made the feature a licensed option. From Amazon's press release (as noted by Charles W. Bailey, Jr. at DigitalKoans):

Kindle 2's experimental text-to-speech feature is legal: no copy is made, no derivative work is created, and no performance is being given. Furthermore, we ourselves are a major participant in the professionally narrated audiobooks business through our subsidiaries Audible and Brilliance. We believe text-to-speech will introduce new customers to the convenience of listening to books and thereby grow the professionally narrated audiobooks business.

Nevertheless, we strongly believe many rightsholders will be more comfortable with the text-to-speech feature if they are in the driver's seat.:

Therefore, we are modifying our systems so that rightsholders can decide on a title by title basis whether they want text-to-speech enabled or disabled for any particular title. We have already begun to work on the technical changes required to give authors and publishers that choice. With this new level of control, publishers and authors will be able to decide for themselves whether it is in their commercial interests to leave text-to-speech enabled. We believe many will decide that it is.

In this case, since Amazon is a bookseller and, effectively, an agency serving publishers and authors, the outcome may not be surprising--but it once again weakens fair use. Amazon may assert that its use is fair--but by abandoning that use, it undermines the defense.

Here's what Lawrence Lessig had to say (from Lessig 2.0):

Amazon has caved into demands from the Authors Guild that it disable the ability of the Kindle to read a book aloud. This is very bad news.

We had this battle before. In 2001, Adobe released e-book technology that gave rights holders (including publishers of public domain books) the ability to control whether the Adobe e-book reader read the book aloud. The story got famous when it was shown that one of its public domain works--Alice's Adventures in Wonderland--was marked to forbid the book to be read aloud...

Now the issue is back. The Authors Guild has objected because Amazon's Kindle 2 has a function built in that enables the book to be read aloud. So when, for example, you're commuting, you can plug your Kindle 2 into your MP3 jack and have the book read aloud.

Amazon rightly argued that this did not violate any of the exclusive rights granted by copyright law to the copyright owners. In that, Amazon is exactly right. But nonetheless, it will now enable publishers to decide whether the Kindle books they sell will permit the book to be read aloud. And of course, that includes public domain books.

So here we go again--How long till we can buy Alice's Adventures in Wonderland and be told that this book “cannot be read aloud”?

But the bigger trend here is much more troubling: Innovative technology company (Amazon (Kindle 2), Google (Google Books)) releases new innovative way to access or use content; so-called “representatives” of rights owners, Corleone-like, baselessly insist on a cut; innovative technology company settles with baseless demanders, and we're all arguably worse off.

We're worse off with the Kindle because if the right gets set by the industry that publishers get to control a right which Congress hasn't given them--the right to control whether I can read my book to my kid, or my Kindle can read a book to me--users and innovators have less freedom. And we may be worse off with Google Books, because (in ways not clear when the settlement was first reported) the consequence of the class action mechanism may well disable users and innovators from doing what fair use plainly entitled Google to do.

Related Articles

• The Copyright Spectrum and Libraries - An overview of copyright issues from a balanced-copyright perspective.
• Educational Fair Use - A provocation from Peter Jaszi
• DMCA, DRM and Free Expression - Related issues.
• Academic Libraries and Copyright Policy - An introduction by Lee Ann Torrans