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It really is time to re-think the doctrine of "fair use." As in, get rid of much of it.
To see why, look at the latest exercise of legal kung fu -- the Electronic Frontier Foundation has responded to Viacom's recent suit against YouTube by filing an action of its own.
EFF represents MoveOn and Brave New Films, which made a riff on the Colbert Report, a Viacom Comedy Central show, and posted it on YouTube. Viacom noted it among YouTube's 160,000-odd clips of the company’s copyrighted content, and sent YouTube a take-down notice. YouTube complied.
Aha, says EFF, this particular video was actually a "fair use" under the copyright law, and thus was not an infringement. Therefore, Viacom has harmed its client with an erroneous take-down notice, and should pay.
It is a legally-tangled situation. Fair use doctrine is generous to parody, and rightly so, since creators tend to lack humor about their works and would be inclined to deny permission. On the other hand, some parodies give one pause; one of my favorite examples was in a movie called The Devil's Advocate that morphed a religious sculpture called Ex Nihilo into a satanic orgy. The sculptor was not amused. And it is not recommended these days that you draw parodies of the prophet Mohammed, unless you do it anonymously. Further, there is a doctrine that a parody, to be fair use, must parody the work itself, not adopt the style of the work to parody something else, so things can get complicated.
However, the merits are not EFF's real concern. EFF is opposed to the existence of enforceable intellectual property, except, perhaps, by the Free Software Foundation or the Creative Commons, which use IP rights to prevent any commercialization. EFF's business model for IP is that it circulate untrammeled and consumers contribute voluntarily to its production.
So what EFF hopes to accomplish with its law suit against Viacom, is to stick a spoke in the wheels of IP enforcement.
As my colleague Solveig Singleton regularly points out, relying on 19th century legal mechanisms to protect IP in the context of the 21st century technology is absurd. It is the equivalent of producing clothes by hand instead of sewing machines. So the system is tending toward mechanization -- in the long run, filtering technologies, in the short, human viewers who review film clips and note quickly whether they concern a particular company's programs.
In this context, fair use is a handicraft concept, filled with the amorphous "balancing" so beloved by lawyers, who collect hundreds of dollars an hour for putting their thumbs on the scales. If every video must be viewed by a lawyer and a fair use judgment made, and if 160,000 videos are posted from one company alone, then even notice-and-take-down enforcement, inefficient as it already is, becomes impossible.
This is not a road to go down. Instead, we need to recognize the commercial realities, which are that Viacom is eager to have clips of its shows circulating -- as is, as a basis for parodies, or for any other reason. It just wants to collect money.
So, it will make clips available, no problemo, as soon as protection and payment mechanisms can be worked out. And the price will be cheap. So we should the law bother itself in making the distinctions over whether a particular parody is "fair use"? Why should the law impose huge transaction costs on the system to save a parodist $1 or $10? If you want to use the Colbert Report as the basis for a parody, do it and pay the price. If you do not like the price asked by Viacom, go parody something else. We are not short of targets -- such as the EFF, which is mostly rich techies preaching the virtues of the gift economy (i.e., everyone should give to them).
The parodist does not get a computer free from Apple on the grounds that it is to be used for a "fair use," not does Starbucks fuel him with free lattes. So why should she get the raw material free from Viacom? The societal interest in parody is protected as long as the material is more or less available. See, for an analogy, Bridgeport Music (2005), which dealt with sampling:
This case also illustrates the kind of mental, musicological, and technological gymnastics that would have to be employed if one were to adopt a de minimis or substantial similarity analysis. The district judge did an excellent job of navigating these troubled waters, but not without dint of great effort. When one considers that he has hundreds of other cases all involving different samples from different songs, the value of a principled bright-line rule becomes apparent. We would want to emphasize, however, that considerations of judicial economy are not what drives this opinion. If any consideration of economy is involved it is that of the music industry. As this case and other companion cases make clear, it would appear to be cheaper to license than to litigate. A market-based approach will not solve all problems, since many content owners will want to retain some control over the use of their work. For example, Disney is unlikely to acquiesce in the use of its characters in porn -- but it hard to see why this would be fair use anyway.
But the essential thing is to get rid of the silly idea that a vibrant culture of sharing, satire, and transformative uses requires that the inputs be free, any more than a vibrant culture of the visual arts requires a government program to pass out free paint and canvas.
posted by James DeLong @ 11:15 AM | Access: Commons, Fair Use, Orphan Works, Public Domain
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