[Comedies of Fair Use] Vaidhyanathan, Adler and Hansen

Andrew Raff
April 28, 2006

Siva Vaidhyanathan
1. Copyright touches more, but protects less than ever before. (see e.g. pirated DVDs on Canal St.)
2. How night we insure how (c) can protect investment and still protect speech
3. To what extent can we rely on fair use. Is it the best vehicle for protecting speech when it's really only an american thing.

Allan Adler (Assoc. of American Publishers)
Overclaiming. There's been a lot of overclaiming about the difficulties that fair use poses to culture and overclaiming about the problems of the public domain.

In the world of Washington, (c) is synonymous with Hollywood. In terms of political baggage, it carries a lot of negative connotations that makes DC people uncomfortable and spills over into their view of copyright. Publishers are thought of a backwater industry that hasn't adopted new technology and not as the original reason for copyright. Forget that publishing is a promoter of speech values.

In DC, we usually think of copyright only in terms of the film (and occasionally record) industry. (c) protects the value of original creative expression. Fair use isn't merely protecting the convenience of someone who wants to put his cd on his ipod.

Fair use per se? If all educational uses are free, what happens to the textbook market? Right of access to a particular copy in the format of choice? Where does that come from-- Congress has never said that and the courts have explicitly rejected that (Universal v. MP3?) These are interpretations that have no foundation in law, public policy or original intent of copyright law.

Now we hear about fair use in Congressional hearings about making a copy of a new CD to provide to the 20 people on the x-mas list. They're not competing with the seller and introducing it into the market-- but fair use was never about that, either.

Lessig talked about a lot of heavy words-- consumer, culture. Publishers rely a great deal on fair use.

Lots of talk about the problems with DMCA, but the DVD wouldn't exist if not for the DMCA. We have this flood of culture because of all the economic incentives. There is a torrent of creativity because of all the economic value there.

US can no longer support its economy solely on manufacturing. Most of our jobs are the direct result of IP law. NYC is the capital of book publishing. We're in a school of journalism. How can you get a job as a journalist without the protection of copyright?

If some (c) owners go too far in protectionism, it's not that much of a big deal.
The anti-copyright movements haven't taken off, because most Americans really only care about consuming and most people are satisfied by what the marketplace offers. The marketplace allows consumers to make choices. If you ask the gov to step in an regulate, you're not going to like the results.

Should Congress rewrite fair use to make it more specific, and all said no. Some because they want to rely on the flexibility to be able to invoke fair use perhaps in some cases where it didn't fit the original intent of the drafters; others because they don't want to grant away specific rights.

Ultimately, fair use is not going to change too much. Our perceptions of it may evolve, but there is no momentum DC to rewrite the law. What we need to start doing is look at these differently to recognize that there is a tremendous diversity of interests involved here. There may be no definite resolution, but the flexible fair use concept seems to work well today (And this flexibility keeps DC lobbyists in business ;)). This will continue to be rewritten as technology advances, while Congress and the courts lag behind the tech. Gap between original intent of the law and the way it works in practice may not be bad.

Hugh Hansen (Fordham Law)
There's really nothing going on in fair use on the international level. People who want more access would love to have it. In the civil law countries, rights are written affirmatively into the law-- no flexibility.

law here is flexible and driven by judges. This is much more protective of free speech than the code countries.
The controlling mechanism of copyright is in courts, not in COngress.

The law hasn't changed as much as the behaviors enabled by technology. New technology reallocates the transaction costs. Technology doesn't sit on one side of this debate.

The only people with worse PR than the record industry is the Taliban. We have music publishers who take pride in the fact that they won't license for the internet. On the other side, Richard Stallman jumps up at a conference and says that everything should be copied. It's very easy to use anecdotes to get things on your side. Shouldn't the martin Luther King estate be allowed to refuse to license to skinheads?

Just grow up and deal with it. Some industries (particularly documentary films) need protection, but generally, the small creators sitting in a small lifeboat in a digital sea don't really get affected by the law [until they get sued, that is]. But the market generally works pretty well.

What we tend to do is polarize that all good is on one side, but that's not really the case. The trouble with smart people-- particularly economists-- is that they often don't have any judgment. Publishers are generally adverse to litigation because it's really expensive.

Access to information is great. Rejoice in it. There may be problems, but they are not so dramatic that we have to change the whole system.

Vaidhyanathan (to Lessig): As an academic, you've stated that fair use is a distraction from thinking about how (c) works in the perfect world, but as an advocate, you assert fair use as a defense in the Google Library case. Can you envision a better regime for user rights? In ten words.

Lessig: Is there a tension? my view is that the system is not functioning well, because we are all asking the wrong questions. The academics should look at the bigger picture. But as advocates, we use the tools we ahve available. Those who say that there is no problem out there don't get all the prospective cases that we do at the Stanford clinic.

The practical problem is that the middlemen in the process realize that lawyers are expensive and are rational to take a conservative, risk-averse position, so the actual bounds of fair use in practice are less than the extent in the law.

Hugh talked about the disconnect between non-commercial and commercial uses. Lessig wants the non-commercial uses to be legal. That would change the way we can teach. It's legal to create something in a classroom that mixes the works of Shakespeare and Hemmingway, but its copyright infringement to create something in the same classroom that mixes the works of George Lucas and Alfred Hitchcock. We should encourage this creativity instead of saying that its criminal, but it won't be prosecuted.

Vaidhyanathan (to Adler): Is there an underappreciation of fair use by your clients (the publishers)? Many authors quote other works, but it's their own publishers who insist on expensive clearances (borne by the author) instead of relying on fair use?

Adler: Publishing industry is tremendously risk averse. Letters are often written not because of what the publisher thinks, but because of what the authors think. Some authors don't want their works to be exerpted and taken out of context.

Maybe the law would be better if people tried to use it more and don't worry so much about getting sued. Does a film studio or record label really need the publicity that would result from suing a sixth grade class. There are very few federal court decisions on fair use.

Vaidhyanathan: but there are.

Adler: There may be lawsuits or demand letters, but not decisions. There are very few decission. If you stand up in court to defend fair use, that's how revolutionize the law. There's been no champion for fair use in the court.

Vaidhyanathan: Should we have moral rights protection here (ala King estate example)? If we had it here, how would that affect fair use?

Hansen: It's generally the heirs [link to Miro/Google] who don't have to work as artists again who assert moral rights.

Publishers are very conservative. Lessig had the problem when dealing with his publisher. His publisher told him that he couldn't quote as much of an article by Courtney Love as he wanted to, but he (the He
The reality is there is a middleman who decides what right you'll stand up for-- it's a sound business decision.

Audience Question: Should we establish a statutory rate for fair use quoting? It works well for record labels when dealing with music publishers for recording cover songs. (§115)

Adler: You could go in that direction if you want to let the trains run on time, but then you're taking the value off the market.When has Congress ever made a right decision about the market?

Siva: Some works will be undervalued with a flat price and others will be overvalued. A Paul Simon song is undervalued when its at the same rate as a song by Siva's cousin.

Adler: THe public places different values on works by different artists. why should the government come in and say that all works have the same value per content.

Lessig: It's ridiculous that you can record a cover song because the record industry has said that it's central to the vibrant market. But on the other side, taking a sample from a recording is prohibited by the law [6th Cir.] Why does the government intervention that promotes the most creativity?

Hansen: When parties have been unreasonable, they look to the government to step in and fix the problem. ASCAP v. Girl Scouts. Maybe if (c) owners remain unreasonable, then perhaps we do need government intervention.

Audience Question: Authors quote pop songs often as epigraphs of a novel. It's completely normal for an editorial to tell the author to seek a copyright clearance. Do you think that this is an area where the author should stand up to be a champion for fair use? [Sounds like someone is looking for free legal advice...]

Adler: If the industry colludes to do this all together, that's an anti-trust problem. But if each publisher does this, it would do something. The GC might say, I have better things to do than bother with this.

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» Comedies of Fair U$e: Post-Conference Commentary Transcripts from NEWSgrist - where spin is art
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