Fair Use Is About Much More Than Remixing: It's About Allowing All Kinds Of Innovation

from the missing-out dept

On Tuesday, the House Judiciary Committee held yet another hearing concerning copyright and possible copyright reform, this time, focusing on fair use. As in the past, the Judiciary Committee continues to set up these hearings in a way that they think is "balanced" but which basically just guarantees people will disagree with each other. In this case, you had two people talking about the importance of fair use, and two people worried about the impact of fair use. There were moments that were both infuriating and enlightening during the panel (though, many more that were infuriating, generally because some of those both asking and answering the questions didn't seem to understand fair use at all). But, even more to the point, even when discussing the benefits of fair use, the hearing seemed to be focused on how fair use helped people write fan fiction or create remixes and mashups. That's all very important, but it almost downplays the real value of fair use.

Fair use is about so much more than that. Fair use has enabled a large part of the internet to thrive, and with it, tremendous opportunities for individuals to communicate. It has also been a key part of what has enabled the entertainment industry to thrive. When people treat fair use as this little "toy" that lets some people "play around" with writing fan fiction or remixing, it really underplays just how important fair use has been to the very core setup of the internet and culture. Without fair use, it would be almost impossible to build a search engine. Without fair use, blogging would be much more risky. Without fair use, a show like the Daily Show would be almost impossible. And yet, no one on the panel seemed to represent this aspect of fair use, focusing instead on just the creative side of things.

Ed Black has a great article detailing much of this, which I'm confident that I can quote because of fair use:

For example, it may be hard to believe, but 30 years ago last week the Supreme Court came one vote from labeling home video a "pirate" technology. Were it not for Justice Stevens' foresight and the fair use doctrine, an entire industry and a generation of technological innovation would have been sacrificed on the altar of copyright protection. (Ironically, home video turned into Hollywood's cash cow less than a decade after movie studios had attempted to strangle it in the crib.)

The same fair use principle that saved home video has also served MP3 players, DVRs, smartphones and a considerable portion of modern Internet functionality, like cloud computing, that we depend upon today. In recent years, we've seen courts invoke fair use to validate a variety of transformative, socially valuable services, including online search engines, including image and book search; commercial-skipping and time-shifting with DVRs; and a service that compares students' papers against a database for plagiarism (who, understandably, might not want to authorize use of their papers to prevent cheating).

Of course, fair use benefits industries far beyond the technology sector. While fair use has always been recognized as protecting widely-enjoyed television programming like The Daily Show, The Colbert Report and Saturday Night Live, its significance extends far beyond parody. Just in the last year, the fair use doctrine came to the aid of movie studios, a Broadway musical, a rock band and the NFL, all of whom faced baseless piracy accusations. Woody Allen's Midnight in Paris led to a lawsuit because the actor Owen Wilson quoted nine words from the author William Faulkner. (Yes, you read that right: nine words.) The musical Jersey Boys was sued for including seven seconds of a 1960s TV program. The NFL was sued because online footage from old football games showed brief glimpses of the original Baltimore Ravens logo -- a logo that had been ruled to infringe copyright after the season was played. In each case, courts sided with the defendants and threw out the case on the basis of fair use. That such lawsuits were brought in the first place is a sad commentary on the state of our intellectual property system, but at least judges were able to resort to the fair use doctrine to reject the most absurd claims.

I've talked for a while about how it's wrong to think of fair use as just an "exception or limitation" to copyright -- since it's actually the other way around. Fair use is the public's right. It's part of the right to free speech, where copyright is actually an "exception or limitation" on that right. But in many ways it goes further than that, since fair use has enabled so much great and powerful innovation as well. And yet, all too often, people think of fair use as just this little corner of the copyright world that lets people create mashups and write fan fiction. Those uses are important too -- the expression and culture that comes out of those areas are really quite impressive when you look closely. But it's important not to ignore just how fundamental fair use is to enabling both the tech industry and the entertainment industry to thrive over the years.