"Fair Use" for Everybody in the Blogosphere

American University's Center for Social Media director Pat Aufderheide and Peter Jaszi, co-director of AU's law school's Program on Information Justice and Intellectual Property have issued an intriguing report, Recut, Reframe, Recycle. That report argues that the "fair use" of copyrighted films, videos, songs, and books applies to private citizens in the blogosphere. The authors discuss nine areas in which fair use can be appropriately asserted, including satire, negative commentary, positive commentary, quoting for discussion, illustrating a point, incidental use, personal reportage, archiving of vulnerable materials, pastiche or collage (mash-ups). They argue:

Fair use is the part of copyright law that permits new makers, in some situations, to quote copyrighted material without asking permission or paying the owners. The courts tell us that fair use should be "transformative"—adding value to what they take and using it for a purpose different from the original work. So when makers mash up several works—say, The Ten Commandments , Ben-Hur and 10 Things I Hate about You , making Ten Things I Hate about Commandments —they aren't necessarily stealing. They are quoting in order to make a new commentary on popular culture, and creating a new piece of popular culture.

Unfortunately, this emerging, participatory media culture is at risk, with new industry practices to control piracy. Large content holders such as NBC Universal and Viacom, and online platforms such as MySpace and Veoh are already crafting agreements on removing copyrighted material from the online sites. Legal as well as illegal copying could all too easily disappear. Worse still, a new generation of media makers could grow up with a deformed and truncated notion of their rights as creators.

Link to the AU report, including a bunch of interesting videos to illustrate their points, here.

reason writers have been reporting and commenting on this area for years; see some links here, here, and here.

Comments

[BakedPenguin]

The courts tell us that fair use should be "transformative"-adding value to what they take and using it for a purpose different from the original work...

I don't know that it's "us[ed] for a different purpose", but I think the rest of that applies to Elastica's first album where they ripped off, but significantly improved upon, a couple Wire songs, and a Stranglers song.

Personally, as someone who created a satirical animated movie from cut up bits of Internet photos, I wholeheartedly concur with the report.

[Aresen]

Things I Hate about Commandments

As long as they keep the chariot race....

[Taktix?]

Things I Hate about Commandments

As long as they keep the chariot race....

Yeah, a chariot race where the use Julia Styles' whinny ass as a speed bump...

[P Brooks]

Meanwhile, the RIAA has apparently decided copying songs from your own legally purchased CDs to your own computer's hard drive constitutes stealing music.

[Warren]

reason writers have been reporting and commenting on this area for years; see some links here, here, and here.

Find some of the best reason commenting on this area here

[New World Dan]

Meanwhile, the RIAA has apparently decided copying songs from your own legally purchased CDs to your own computer's hard drive constitutes stealing music.

If the RIAA had their way, you'd pay every time you heard a song. To further flog my dead horse, let me repeat: the biggest problem is that copyrights are too damn long.

The biggest problem with fair use is the uncertainty involved. There should be a bit more structure involved in fair use. Instead of just court defined fair use, it needs to be written in law. There needs to be a written fair use defense, such that good faith fair use does not open one up to damages. And there should be a takedown provision ala the DMCA until the use can be adjudicated. And for crying out loud, court cases should be handled in a matter of days or weeks, not years.

[Warren]

Easier, and better would be to scrap copyright altogether.

[Sulla]

The biggest problem with fair use is the uncertainty involved. There should be a bit more structure involved in fair use. Instead of just court defined fair use, it needs to be written in law. There needs to be a written fair use defense, such that good faith fair use does not open one up to damages.

I hate to be a legal pedant, but fair use is written law: 1976 Copyright Act, as amended, sec. 107; 17 U.S.C. sec. 107. It is rather vague and could use some more specific language, but remember that if we get too specific, we're headed to a civil law system (not that that is necessarily a bad thing).

We hashed our way through IP law the last time this came up, but I'll present my idea again:

Treat copyrights like real property (more or less), appraising them, and imposing a tax based on a percentage of their value. For copyrights that fall below a certain appraised value, there would no fees for a fixed time (five years maybe), then gradually rising fees thereafter (perhaps $100 years 5-10, $1000 yrs. 10-20, $5000 yrs 20-30, etc.). As long as the taxes/fees were paid, you keep the copyright (essentially an unending term). Copyright protection would be strong for true/quasi-true copies (i.e., photocopies of books, mp3's, prints of artwork). Protection would be weak to nonexistant for derivative works, depending on how close they are to the original.

[ChrisO]

Fair use wasn't as ambiguous in the pre-digital era, since in practice it mostly applied to photocopies of printed material. In practical terms, it existed because no one raised a big fuss over professors photocopying a few items for their students.

But now, you can easily copy and distribute entire digital items with no hassle, making it much easier to abuse the principle of fair use. And, of course, the entertainment companies have gotten much more restrictive laws passed in the name of "artists' rights," which always makes me chuckle, given how little respect the media conglomerates generally show for artists.

[ed]

given how little respect the media conglomerates generally show for artists

There are millions of independent artists out there who own their own work and don't pay fees, royalties or commissions to agents or media "conglomerates." They have every right to protect their property. The RIAA is usually an irrelevant red herring in these debates, a convenient whipping boy.

[Sulla]

The RIAA is usually an irrelevant red herring in these debates, a convenient whipping boy.

The RIAA lobbies for excessive protection of intellectual property rights, so they are not a red herring. Artists' property is protected by government action, so the rest of us have every right to argue about the limits of those protections.

[carrick]

The RIAA is a classic big business that is using the US legislature to write rules that increase its bottom line. Copyright protection is only the vehicle in this case.

[ChrisO]

The RIAA lobbies for excessive protection of intellectual property rights, so they are not a red herring. Artists' property is protected by government action, so the rest of us have every right to argue about the limits of those protections.

Exactly. And not just the RIAA/music companies, either. Disney is maybe the biggest proponent of perpetual copyright. Basically, Disney pays big lobbying bucks to ensure that Mickey Mouse never enters the public domain.