January 17, 2014 | By Parker Higgins

Celebrating Fair Use for Copyright Week


Here's what makes a new product or service exciting: it enables you to do something you hadn't even thought possible. But with products that build on or incorporate digital technologies and the Internet—both of which dramatically lower the cost of making copies—some of those exciting surprises inevitably rile up people who control copyrights. If the law were to reflect only the interests of those existing rightsholders, they’d have a veto right on all sorts of new technologies.

Instead, we've got a concept called "fair use" that provides innovators and artists with the breathing space use copyrighted works in a variety of ways, without getting permission. It's a versatile doctrine, one we depend on every time we do research using the Google Books database or the Internet Archive, post a screenshot from a favorite video to Tumblr, share news and information on our favorite forums, or watch a TV show recorded to a DVR. Without fair use, some of our favorite technologies simply wouldn't exist.

How do we know? Because for at least a century, these technologies have been threatened and attacked by large rightsholders. Every time, fair use stands in their way, and essential shield for innovation and the public interest. It’s the key to having an innovation culture, as opposed to a permissions culture.

A Supreme Victory

The fair use doctrine is deeply rooted in US law, but one of its watershed moments for innovation occurred thirty years ago today, in the case of Sony v. Universal (or more commonly, the Betamax case).  Hollywood was doing its level best to sue the videocassette recorder out of existence, but the Supreme Court rejected the movie industry's arguments that consumers recording movies and TV shows at home were engaging in massive copyright infringement. Such personal use as time-shifting (recording a show to watch it later, something we take for granted now) were obvious fair uses, said the court, and providing technology to make it happen was not illegal.

Despite all the heavy-handed doom-and-gloom rhetoric from the movie industry—then-MPAA-head Jack Valenti famously claimed to Congress that "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone"—the home video market that the case opened up turned out to be good for everybody, quickly providing a major portion of the studios' revenues. 

All This Cool Stuff 

The VCR is just one notable entry in a long line of great developments that rely on fair use. Take, for example:

  • iPods and other portable music players When the first mp3 players came out, they came with an incredible value: unlike upgrading to tapes or CDs, you wouldn't have to re-buy all your music. Instead, you could make fair use copies of already purchased music, and fill it up that way. Dedicated music players aren't so common any more, but their popularity paved the way for the smartphones that so many people carry now.
  • Search engines Any company that's building a search engine has to first make an index—basically a copy of all the material users are going to search. When it comes to the Web, it seems obvious that search companies don't need to ask permission to add a site to the index. But rightholders have repeatedly challenged these databases. For example, a company called Perfect 10 insisted that Google Images violated its copyrights by indecxing images on “unauthorized” websites, and the Authors’ Guild challenged Google Book Search service for digitizing and indexing printed books. In both instances, court have recognized that these uses were fair uses, in large part because of the tremendous public benefit their provide.
  • DVRs, Aereo, and ad-skippers You'd think that after the experience with the VCR, studios might stop throwing substantial time and resources into fighting technologies that allow users to watch video content in whatever time and place they choose. You'd be wrong. Like clockwork, whenever somebody introduces such a product to the market, big content owners up to file lawsuits. For example, broadcasters are currently doing their best to shut down Dish Networks’ Hopper service, which allows viewers to record shows and then skip the commercials when they play them back. After the appeals court rejected that theory, they’ve turned to another; we expect they’ll see the same result.

Danger Ahead

You might notice that many of these products followed a common story. First, there’s a a great new technology that takes advantage of non-infringing copying in an exciting way. Then rightsholders try to challenge that copying, saying that it is in fact infringing. Then the courts explain that the technology isn't infringing after all.

The danger we face now is that, more and more, the established industries are finding ways to keep that story from ever playing out. Fair use is a powerful and versatile doctrine, but it relies on human judgment. So when we let algorithmic copyright cops like YouTube's Content ID block material because it detects a copy, that preempts the possibility of arguing fair use.

Similarly, when media or devices are wrapped in digital rights management software designed to restrict copying, the law says that circumventing that software is illegal even if the reason you're circumventing it is otherwise lawful. That in turn can short-circuit fair use and lead to chilling effects on products that require reverse engineering.

It's not all bad news, though. For one thing, courts continue to recognize the value and importance of fair use, and Congress plans to discuss it in an upcoming hearing. We'll continue to push for a strong and robust fair use doctrine. Join us by endorsing the Copyright Week principles today.

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