The Comedies of Fair Use

I’ve been (gradually) listening to The Comedies of Fair Use, the free downloadable audio version of an NYU symposium on copyfighting and whatnot that took place back in April. It’s incredibly interesting, and I’m not generally the type of person who listens to symposiums on the bus (seems like more of a Led Zeppelin III form of transportation). The organizers did a really good job of assembling interesting speakers on both sides of the issues, including a fascinating story about an artist who made a painting based on a photograph, eventually getting into hot water with the photographer (both artists spoke on their perspectives).

I’m not done listening to the entire thing yet, but two major things have struck me so far:

At times, we’re all Lawrence Lessig and at times, we’re all The Walt Disney Corporation
I don’t recall which speaker said this, but I think they’re absolutely right. When it comes to the production of creative works, artists can just as easily find themselves defending ownership (copyright) as defending freedom of expression (fair use). The example of the painter versus the photographer above really drove that home, and made me realize that like most issues, neither extreme is right all the time.

Even I, as a non-artist who primarily cares about Fair Use to the degree that I just don’t want DRM messing up my music, have been on both sides of the issue. In 1995, when I was a Senior in High School, I wrote MacFolklore, a shareware trivia game about the history of Apple Computer and the Mac. Some time after its release, I was contacted by Owen Linzmayer, a tech journalist. He said that MacUser Magazine was writing their own trivia game (“You Don’t Know Mac”) about the history of the Mac (really, it wasn’t that big of a market, but so it goes) and he had been hired by them to write 1000 trivia questions. He asked if he could use the questions that I wrote for MacFolklore in the MacUser game.

I consulted my legal consul (my dad, who is a professor, not a lawyer) and he told me that the trivia questions were facts so I didn’t really own them anyway. If they were all true, Linzmayer could just rewrite them but by allowing him to use them as-is, at least my words would get a larger audience. So I told Linzmayer that he had my permission as long as he advertised that they came from MacFolklore and told people where they could download it.

That summer, I went to the MacWorld Expo and Power Computing (remember them? didn’t think so) was showing the MacUser game on a big screen and they were using my questions! I was really excited that my material was getting an audience at MacWorld… until I downloaded the game and saw how I was credited:

Lots of other trivia questions were written by Jason Snell and Carolyn Bickford of MacUser, and reader Scott J. Kleper, who went above and beyond the call with huge amounts of questions submitted via our Web site. Thanks, Scott!

What the hell was this? First of all, I wasn’t a MacUser reader. I was a MacWeek man. And “submitted via our Web site”? It made me sound like I was sitting at home with nothing better to do than type trivia questions in a web form (as opposed to nothing better to do than teach myself C by writing a trivia game). I was pissed off and I made sure to tell Mr. Linzmayer.

To Owen’s credit, he seemed genuinely sorry and said that he had nothing to do with that bizarre attribution. He even sent me some followups to various trivia questions that he didn’t think were 100% accurate.

Alas, I soon discovered girls and forgot about Mac trivia.

But while listening to The Comedies, I started to think about the experience again, since these days I’m generally on the more liberal side of re-use of content. And I realized that without ever knowing it, I was actually on both sides of the issue with MacFolklore. Because as much as I felt that MacUser had stolen work from me by taking content and not attributing it as I requested, I recalled that one of the features of MacFolklore was that when you got a question right, it played the guitar riff from “Life in the Fast Lane” by The Eages. And even though it was a very long time ago, I’m pretty sure I never contacted Don Henley for permission. So yeah, one can easily find themselves being overprotective of their content (Disney) and thinking that culture should be free (Lessig).

Fair Use Is an Undefined Term
In one of the panels early on, Allan Adler of the Association of American Publishers made his position on Fair Use clear. As a lawyer working for the publishing industry, he said that Fair Use advocates had done a lot of “over claiming” recently, redefining what Fair Use was and using it in ways that it wasn’t intended.

One of the assertions that really struck me was that Fair Use, as written in copyright law, isn’t really defined at all. The law doesn’t explicitly say which uses are Fair Use. There is no blanket statement like “excerpting a work for educational use is a Fair Use.” I had heard this before, but generally assumed that it was a fault in the law that needed correction. So did several speakers at The Comedies, whose main position was that we need more explicit laws about when it’s okay to use something and when you can sue over re-use of a work.

Adler’s position was that the creators of Fair Use knew that no blanket controls over usage could be written because it’s always a case-by-case basis. It might be okay to distribute an excerpt of a book in a class presentation, but it shouldn’t be okay to avoid paying for the rights to redistribute a copyrighted work by photocopying the entire thing. I thought Adler had some interesting examples of why it would be hard to write such a law, but it still seemed to me like we really ought to try.

After all, what’s the point of a law that creates a term without defining it? Adler implied that not only was there a point to such a law, but that Fair Use is better served by accepting that it’s not always black and white. Sometimes, a judge needs to be involved. Surely, this can’t be the way our legal system works though. Do we really have laws that say something is legal or illegal but refrain from saying exactly what that thing is?

Turns out, we do. I contacted my lawyer friend (a real lawyer, not my dad) about it, asking him the general question of whether our legal system works this way. Here’s part of his response (used with permission!)

His understanding of the term matches mine. That is not only common in our legal system, it is the norm. To give you an example, self-defense. What constitutes self-defense? Certainly if someone threatens me with a wet noodle and I shoot him I can be said to be
defendning myself, but that’s not a defense to murder. On the other hand, clearly punching someone who is holding a gun to my head is self defense. But there’s a huge middle ground and the line there is amorphous.

American law generally boils down to an ongoing conflict between rules and standards. Rules are easy brightline definitions that don’t require any post-hoc analysis (ala, if you sleep with a 15 year-old girl, you commit statutory rape). Standards on the other hand are
underdefined, intentionally leaving room for case-by-case analysis (the reasonable man, provocation, extreme emotional distress, materiality in a securities suit). Rules are easy but they are inevitably overinclusive (are all 15 year-olds of the same maturity?
Is carrying a weapon equally bad in the middle of city as it is in a rural area? Just because a product might have been made to prevent a particular misuse, should manufacturors be required to take steps to prevent all misuse? Is a play obscene in SF simply because people in Peoria are offended?). On the other hand, standards lead to rough justice, one court rules one way, another another way, and people are left to guess at their duties to their own peril.

Oh. Well, that seems to make sense. The frustrating part is that an under-defined law means that lawsuits, or threats of lawsuits, end up deciding what can and can’t be done. And there were so many examples I’ve heard of where there is a clear Fair Use defense, but no money to back up a legal defense. Still, at the very least, it helps me understand why it’s so frustratingly under-defined.

So I’m about half way through listening to the conference. I can’t wait to see how all of the lawyers resolve everything at the end 😉

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