The Remix Culture
Monday, July 7th, 2008 by Patrick RossWell, we’ve been down this road before.
What is fair use? According to the American University Center for Social Media, fair use can be defined as follows:
Fair use is the right, in some circumstances, to quote copyrighted material without asking permission or paying for it.
Okay, we’re already off on the wrong foot. Most of that sentence is fairly reasonable, but the AU professors behind this have to know that fair use is not a right. Copyright is a right. Fair use is a limitation on that right, which is not absolute. Specific methods of fair use are defined in court, and then only for that use. Fair use, then, is an affirmative defense the user can cite in court if sued for infringement.
With that cleared up, let’s look at an announcement the AU Center put out today. They have published a Best Practices Guide for fair use in online video. This is a dangerous effort. We at the Copyright Alliance support education on fair use and have information on our site. But our information is intentionally broad; we do not want to be in the position of giving legal advice to specific end-users of copyrighted works.
But that is precisely what the best practices guide writers run the risk of doing, although some review of the site suggests that there isn’t much “there” there. What is implied suggests a significant expansion of the current established thinking of fair use, going far beyond legal precedent. Lord help the individual who follows their guidance and finds out that just because AU says it’s fair use doesn’t mean it’s fair use.
That goes for a compilation video AU includes on the site, one that shows various YouTube videos that infringe on compositions, sound recordings, motion pictures and television programs. Most are fairly familiar, some are fairly funny, and AU acknowledges that all infringe. So is AU saying that these works should all be examples of fair use? Is AU saying all of these works are in fact fair use? Is AU saying that copyright law prevents these works from being made?
My guess is AU would say “yes” to all three questions. My three points would be: 1) The ability to create a video and put it online does not erode the derivative rights of the original creator, without whom a derivative work couldn’t have been made. 2) It is not AU’s place to define fair use. 3) Note that nothing stopped these works from being created, and it seems they haven’t been sued by the copyright owners.
A derivative copy can’t exist without an original. There is a long history of derivative licensing which is seen in today’s culture everywhere you look. The Internet obviously hasn’t changed that. The Founding Fathers and Congress have put copyright’s primary focus on promoting original creation, above these secondary users, these downstream mashers. That was, is, and will continue to be the proper focus, no matter how many amateur mashups appear online.
July 8th, 2008 at 11:03 am
Patrick, the “fair use is not a right” mantra is a favorite of the big media companies and the talking heads they fund, but it’s incorrect. A right and a defense are not mutually exclusive. For example, self-defense is a “defense” to battery. If you threaten me with a knife, I have a right to knock you out. I have both a right and a defense. Likewise, to take just one example, because parody is a fair use, I have a right to create a parody of your website.
This “fair use is not a right” rhetoric allows you to paint copyright holders as having “rights” that have been violated while secondary users merely have the possibility of a “defense” that will excuse their moral transgression. The flaw in this rhetoric is that the parodist, the time-shifter, etc., are no more in the wrong than the person defending herself from a mugger, because none of them are breaking the law.
But moving beyond the false dichotomy of right and defense, the Copyright Alliance has itself claimed to define what fair use is and isn’t, in a way that goes far beyond, aka misstates, legal precedent. It is hypocritical of you to claim that AU should not “define fair use” when you claim to do so yourself. Fair use is a flexible doctrine. That’s a strength, because it allows the courts to permit unanticipated uses of copyrighted works without the copyright holder’s consent when such uses “promote the progress of science.” It’s also a weakness, because it allows copyright maximalists to discourage the exercise of fair use and the growth of fair use precedent by sowing the (often reasonable) fear that any given use will not be held a fair use and could subject the user to ridiculously large fines.
AU’s thoughtful position piece is explicitly not “legal advice.” In fact, it says “This code of best practices does not tell you the limits of fair use rights.”
Where exactly did the “Founding Fathers” propose a narrow interpretation of fair use? The “primary focus” of copyright according to the Constitution is to promote the progress of “science,” which in the 18th Century referred to all forms of learning, including the arts. The Founding Fathers also drafted the First Amendment, which, according to the Supreme Court, requires that copyright law contain meaningful limitations, including fair use. See Eldred v. Ashcroft.
Your attempt to distinguish “original creation” from “downstream mashers” is also misleading. The implication is that some in society (presumably the media conglomerates that fund you) are engaged in some Promethean act of original creation while others’ contributions to culture are “secondary” or “derivative.” There is simply no such easy distinction. Walt Disney was the consummate downstream masher. To draw that line and then imply that the “Founding Fathers and Congress” favored one side of it is a non sequitur.
July 8th, 2008 at 4:15 pm
You write: AU’s thoughtful position piece is explicitly not “legal advice.” In fact, it says “This code of best practices does not tell you the limits of fair use rights.”
I’ve seen others point this out. I guess it’s the former editor in me, but I read that focus on “limits” as saying “We’re not telling you the limits of fair use, it can in fact go even further.” That’s not the kind of caution I would support, nor would most songwriters or photographers.
July 8th, 2008 at 4:18 pm
Oh, and on the primary-secondary issue, please remember there is a difference between depicting a public domain story or being inspired by a genre of music and using an actual copyrighted sound recording or video in your work. The former does not run the risk of copyright infringement, it is the classic standing on the shoulders of giants. The latter most definitely runs the risk of copyright infringement.
July 11th, 2008 at 7:56 am
Lock up more and more american people for some digital copy, you should take a look at the bigger picture, the people who are copying there compact discs and sharing those files over the internet, the people who are downloading them, and the people who burn them to a disc and sell those copyrighted material, they are breaking laws true. however life is not fair not even for big corporations. there is always going to be a law breaker and some corporation looking to spend thousands of dollars on lawyers just to sue some 12 year old child for breaking a silly copyright law. regardless children will be children, now as for adults they do know right from wrong however, there definition of “right and wrong” differs from the major corporations view. the same people who share the music. believe it is helping the artist grow however, that may or may not be true, it does give the artist exposure but the revenues do not increase, unless a retail cd is purchased, however there is fees not all artist gain a large revenue from minimal cd sales, but that is what you get when you sign a record deal, expenses and a deadline, you need to sell a very large amount of store copies. but the internet allows for new oppertinuties and for artists to choose to get there music exposed, you cannot live off of pennys espicially all this commericialized corporations, it is all about the money and not the music, I did not say I support piracy, I do believe there can be some sort of policy that can change things without criminalizing however, there should be certian laws that do take effect. But remember drugs are far more dangerous then someone copying binrary data. not everyone will buy into the latest pop sensation. people discover artists from the past by downloading, noone goes to the store and just buys a random cd, people would like to have a true preview listen, you wouldn’t judge a movie by the first 30 seconds of it would you?, how well do you know your money is spent. radio stations repeat the same commericialized corporation generated artist. Rarely any artist writes music themselves, however you may glamourize hip-hop’s violent lyrics about women, drugs, gangs, and hardcore sex. maybe some stronger laws to prevent young children from purchasing such cds and keep explicit cds to adults. however you may argue that the children can just download the music, that maybe true, but why waste your whole life fighting something you cannot control regarldess of what law you set in stone. it will never die only till you destroy the internet itself, we have enough problems in life such as oil, terrorists, drug dealers, gangs, society blames music, movies, television, all the copyrighted materials that you fight and die for, but it is your job to argue and destroy our very youth with your copyrighted material that is unrestricted to children. however you may blame the parent but the material is being distributed by corporations that you soley defend, but this is not a war for I am not partaking any sides. but realize this, if you couldn’t stop drugs and drug dealers and drug abuse. what makes you think you can stop piracy? there is billions of people on earth, who commit copyrighted abuse. they break the very laws you set, for what purpose? I cannot speak for them I can only think of theorys of why they commit such acts. Possibly they do not wish to pay $15 or $20 dollars for a piece of plastic disc, the disc itself is not even worth $15 or $20 dollars, you can have a cd pressed in bulk for less the cost, the manufacturing fee is not extrodaniry, however the fees the corporation charges are commericial fees, studio time, and a large percent of profits. if compact disc audio was better priced without milking the consumer. revolution has happened the internet has changed the way corporations control the consumers. the power is in there hands I don’t control or think for them, nor do I commit any acts of crime.
August 2nd, 2008 at 7:05 pm
Brilliant!
October 31st, 2008 at 4:56 pm
[...] Ross, head of the cartoonish Copyright Alliance, seems to have chutzpah in abundance, as seen on a blog post yesterday criticizing The Center for Social Media at American University, for its release of a “Code of Best [...]