Report: Fair Use Under Fire

A report entitled "Will Fair Use Survive? Free Expression in the Age of Copyright Control" by Marjorie Heins and Tricia Beckles of New York University's Brennan Center for Justice has just been released. There's been some buzz about this long awaited result of a fairly large research undertaking, in conjunction with the Chilling Effects Clearinghouse. As a brief techdirt post suggests, the report and the surrounding debate are helping to define fair use.

At the beginning of the report, I started to feel uneasy about some of the underlying analogies that the group uses. In particular,

"ISPs are akin to telephone lines and highways: they provide a means of transport. Wrongs committed by users of telephones or drivers of highways are not attributed to those providing the conduits."

Hmmmm... not sure if I agree with that. In a previous post on SBC and content charging by telecommunications companies, I argue that such regulation was tantamount to a toll booth charging you once to use a bridge, and then again for every lane you'd like to use. I still believe in that- but this case is different. When telecommunications companies regulate, they are regulating the form of the content- video, audio, image, ect. -not the content itself. You should be able to have a set amount of bandwith and use it for what you want: VOIP, uploding pictures, watching video, whatever. But that doesn't mean ISPs should allow you to use your bandwith to perform illegal acts like steal copyrighted material.

Granted, I don't want most of the content of the internet to be regulated. In fact, the value of the internet is enshrined in its collaborative and free nature. But when content slides into illegal material, then it may need to be regulated, and ISPs play a part in all of this. First off, the analogy the report uses is false. The current system does not "attribute" the wrongs of internet users on ISPs, and there is no indication that such a system will be put into place. If an ISP has not been notified of a user's wrongdoing, it should not and does not have culpability in the matter. However, once an ISP has been notified, it has a responsibility, just as the providers of telephone lines and highways (the state) have an obligation to respond to wrongdoing. If I call the police or phone provider because someone is calling me every 3 minutes and leaving obscene, violent threats, they need to look into it. Likewise if I see someone driving visibly drunk in my neighborhood and call the cops, they need to respond. When it comes to ISPs, take the example of child pornography: although laws requiring that ISPs block or filter child porn have been struck down (for over-filtering purposes), ISPs still play a large part in blocking such material in response to complaints and can be punished by law for neglecting complaints.

I admit that there is a pattern of behavior among ISPs to take down material of questionable legality, but that doesn't equal a blanket immunity as to the responsibilities of the ISP.

The article was, fortunately, much better from there. The paper makes a well-backed analysis of how jumbled and confusing fair use laws are right now. The authors write:

"Michael Madison describes the [four pronged] doctrine [of fair use] as "so fragmanted as to make it useless as a predictive device" and abstract "to the point of incoherence." Kenneth Crew says: fair use "has been derided as among the most hopelessly vague of legal standards"; it causes "ample confusion among lawyers and laypersons alike, who often need to understand its nuances and live by its tenous and fragile principles."

This is a nightmare for creative minds on the internet. There is no clear standard of what can and cannot be used, and information about the legality of fair use is sparse. Furthermore, defending against the threat of a large company via a cease and desist letter is an intimidating prospect for an individual or small company, given the potential costs in legal fees alone. In one case the widely publicized Village Voice attempted bullying a periodical called the Cape Cod Voice into changing their name, given possible confusion over the term Voice in the two titles. The article reports,

"Dan Hamilton, managing editor of the Cape Cod Voice... noted "the new corporate tendency to fire off a scattershot of nasty letters to anyone who, in their opinion, poses even a vague threat to their trademarks." He told us he was "astonished at how easy it is for a large corporation to make an absurd claim about a common English term.""

...And in most of the cases where the recipient of a cease and desist letter fought back, the case was quickly dropped. Which makes sense, because while there aren't any punishments and minimal cost in sending out nasty cease and desist letters RIAA-style, there are in frivilous lawsuits. Still, there needs to be a lot more clarity and awareness about what exactly fair use is, so that creators CAN fight back - and that can't happen until a better fair use standard has been reached. So what are their recommendations, well,

"Our recommendations include creating a clearinghouse for information, including sample replies to cease and desist letters and take-down notices; a legal support network; outreach to Internet service providers to encourage help for those targeted by take-down letters; and changes in the law to reduce the cost of guessing wrong about fair use."

Definitely helpful, but truthfully, I'm not sure how much progress will be made on fair use through them. At the heart of the issue is a very vague legal standard that has no consistent legal precedent in its application. It's hard to tell ISPs or individuals what is and what is not appropriate to take down when there is no clear standard. More legal support, outreach, and defense resources will press the issue - but until it reaches the courts, the confusion and lawsuits will continue unabated.