Celebrating Fair Use Week: An Interview With Peter Jaszi

In recognition of Fair Use Week, we're sharing an interview with a true leader in the field of copyright and fair use.

Happy Fair Use Week 2018! This week, numerous organizations around the country are celebrating the critical right of fair use (the doctrine of fair dealing is also being celebrated worldwide), the doctrine in copyright law that allows for the use of copyrighted materials without permission from the copyright holder under certain circumstances

In recognition of Fair Use Week (full disclosure: I coordinate Fair Use/Fair Dealing Week, so this is really a shameless plug), I wanted to interview a true leader in the field of copyright and fair use, and Peter Jaszi graciously agreed. Below, we talk about everything from every day fair uses, misconceptions about fair use, best practices, and even some career advice.

Peter Jaszi is a professor emeritus at the American University Washington College of Law and an expert in copyright law and fair use. His distinguished career has included numerous projects designed to promote the understanding of fair use in various communities. He is also the co-author of the book, Reclaiming Fair Use: How to Put Balance Back In Copyright, a new edition of which will be published later this year by the University of Chicago Press.

Background

KC: One of the reasons that I love Fair Use Week so much is that it really provides an opportunity to celebrate a doctrine that we actually rely on every day in the digital era, whether people realize it or not. What are a couple of examples of how individuals use fair use in their day to day lives?

PJ: For good or ill, we live these days in a copyright-rich environment, surrounded by (and sometimes bombarded with) information objects that are at least technically within the subject-matter of copyright. In addition, contemporary copyright regulates many of the ways we interact with these objects. Under the circumstances, fair use makes it possible for us to get on with our lives and work without being serial copyright infringers. And while some of our fair use activities are done knowingly, many are not. When most of us clip a few lines from a news story or song lyric and send it to a friend on line, we don’t necessarily think that we’re exercising our fair use rights — but we are! Likewise, an investigative journalist who quotes extensively from the “smoking gun” memo that exposes a business conspiracy may be thinking in terms of press freedom, but it is fair use that animates the general principle. Anyone who dabbles in remix culture is a fair use beneficiary, and those of us who teach and learn in physical or virtual classrooms would be lost without it. Artists in all media rely constantly on fair use — for a current example, consider the powerful final sequence in the 2017 The Florida Project (which was robbed in the Oscar nominations). Fair use undergirds the system by which blind readers receive accessible copies of texts, helping to fulfill the aspirations of the Americas with Disabilities Act. And I could go on. Instead, let me recommend this year’s ARL infographic on the applications of fair use, which tells the story better than I ever could.

In daily life, the applications of fair use seem pretty straightforward to most of us, whether or not we recognize them as such. When we’re doing our work, we trust fair use both explicitly and implicitly. The problems come a bit further along, where various so-called “gatekeepers” (institutional lawyers and administrators, publishers and other distributors, insurance companies, and others) make judgements about the kind of circulation our work is going to receive, based on risk assessments that don’t always reflect an accurate understanding of the fair use doctrine.

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KC: Section 107 of the Copyright Act lays out four factors to determine whether the use is fair. What is the best way for users to understand these factors?

PJ: For much of the history of the fair use doctrine, which stretches back a ways, what to make of the four factors has been a question. Happily, in the last 25 years or so, the U.S. courts have clarified things a lot — so much so that we can say that today we operate under a stable “unified field theory” of fair use, to which judges everywhere in and at every level of the federal system adhere.   According to this approach, the fair use inquiry begins with the first factor — the “purpose” and “character” of the use — and favors, in particular, uses that extend access to knowledge and are considered to be “transformative” — meaning, simply, that they are offering copyrighted material to new audiences and harnessing them for new functions. This first factor determination is significant in assessing subsequent factors as well. Nowadays, the second factor (what kind of copyrighted work is involved) is something of a make-weight, but the third is consistently important: the question to be asked and answered is whether the amount of copyrighted material that the potential fair user has incorporated (whether in terms of quantity, quality, or both) is appropriate to the users’ legitimate purpose. This, in turns, means that sometimes the use of the whole work may be justified (consider, for example, an image illustrating the review of a contemporary artist’s new gallery show). Finally, we get to the fourth factor, which turns on market harm by means of economic substitution. The latter point is important, since there are lots of ways a reproduction of a work can harm its market prospects, but only some of them count. A bad review can hurt a movie’s ticket sales, for example, but that’s not the result of potential substituting the critical notice for copyrighted original. Where the purpose of a use has been found transformative, this final prescribed stage in the inquiry is usually pretty perfunctory — almost by definition, a transformative work is unlikely to function as a substitution. And, of course, since the four factor aren’t presented as an exclusive list, courts sometimes do take other considerations into account — the public’s interest in access to the information contained in the works under scrutiny, for example, or the characterization of the user’s conduct as being in good or bad faith. The appropriateness of the latter inquiry is a matter of some controversy, but — in practice — courts sometimes do resort to it.

KC: When you talk about transformativeness, does that mean that a use is only fair if it creates something totally new?

PJ: When this new vocabulary became current, a bit after the turn of the last Millennium, there were various views about its meaning. The most conservative take was that a use could be considered transformative only if it intervened upon or otherwise modified the original, but it wasn’t long before the courts had made it clear that faithful uses also could qualify, especially if they involved putting copyrighted material in a new context — an image of a painting used to illustrate an argument in a book about art history (or social history), for example. Fair use skeptics then regrouped, arguing that only “expressive uses” (roughly speaking, those that might lead to the creation of a new copyrightable work) should qualify, but a line of cases that found fair use where there had been large-scale copying to assemble reference data sets to enable search tools broke through that limiting reading, as well. Here’s language from one of those decisions, Authors’ Guild v. HathiTrust, decided in 2015 by the Second Circuit: “A use is transformative if it does something more than repackage or republish the original copyrighted work. The inquiry is whether the work “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message . . . .[T]he more transformative the new work, the less will be the significance of other factors . . that may weigh against a finding of fair use.” (citing the Supreme Court, which in turn was quoting a law review article by Judge Pierre Leval). So not all “good” uses are transformative — think, for example, of copying textbooks to provide learning opportunities for poor students. But, by contrast, there are no fixed, categorical limits on the kinds of uses that can qualify.

KC: I think there are some other common misconceptions about fair use. Let’s walk through a couple of them. How do you respond to criticisms that fair use is too uncertain and difficult to use because it’s analyzed on a case-by-case basis?

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PJ: Fair use isn’t any more difficult to apply or uncertain than any other legal doctrine that requires us to apply a general standard to specific facts — negligence in tort law is an example.   I’d suggest that “certainty” isn’t (and probably shouldn’t be) attainable here. What we should want and can get is some level of predictability, based on accumulated legal precedents. Given the fact that most fair uses are never challenged, the case law doesn’t accumulate at a very fast rate. Since the Supreme Court’s big turn in 1994, there have been no more than 25 or 30 important appellate cases on the subject. Many specific areas in which fair use obviously applies, to at least some extent, remain unexplored by federal judges, and are likely to stay that way. But consumers of law (whether laypeople or lawyers) can and should reason by analogy to more-or-less like cases, and make sound predictions based on the methodology employed in those cases. That’s how law — and confidence in law — develops in our “common law” system, and after 25 years or so of the new fair use jurisprudence, we’re in a position to make accurate predictions about how a court would rule — in the unlikely event that it ever came to that — in the vast majority of specific instances. So I really wish we could put this particular misconception to rest — along with Lawrence Lessig’s famous quip that fair use is just “the right to hire a lawyer,” which wasn’t strictly accurate in 2004 and certainly isn’t today. Professor Lessig has disowned this dismissive take on the power of fair use, and the rest of us should, as well.

KC: What about commercial uses? Are only non-commercial uses fair?

PJ: This misconception is part of a flourishing category that might be called the “urban folklore” of fair use, some of which consists of propositions that conveyed some truth along with others that never did. This one falls somewhere in between. It is the case that up until the Supreme Court’s 1994 decision in Campbell v. Acuff-Rose, we had to cope with some slightly reckless language in its’ earlier cases suggesting that commercial uses should be “presumed” to be unfair. Non-commercialness may be a marginal advantage to a would-be fair uses, but commercialness is hardly puts a dent in an otherwise qualifying argument. In fact, of course, most of the pro-fair case law over recent years has been laid down in cases involving commercial (even highly commercial) defendants, who are more likely to be sued and often have greater motivations to defend. Those of us whose activities are non-commercial or not-for-profit are in their debit.

There are some other bits of urban folklore as well: Purported rules teaching that certain small amounts of material (50 words or 10 notes or whatever) are automatically fair use; the proposition that it is never fair use to use a whole copyright work; the canard that a would-be user who begins by asking permission thereby somehow forfeits fair use rights, and more. These aren’t just harmless misstatements — in fact, they can lead to all sorts of unhappy results. The question, then, is where non-lawyers can look for useful guidance when they are planning or contemplating a project that might have to rely on fair use.

Peter Jaszi

Best Practices

KC: You have spearheaded the creation of numerous fair use best practice documents for various communities including documentary filmmakers, research libraries, visual artists, and others. What is the purpose of these best practices documents?

PJ: This is work that has been occupying me and others — especially my long-time collaborator at American University, Professor Patricia Aufderheide — since 2005. There’s a good deal about it in Reclaiming Fair Use book, which you mentioned before, and a pretty comprehensive site for information on lines is the Center for Media and Social Impact. The work grows out of a central insight of copyright scholar Mike Madison, of the University of Pittsburgh Law School, who was one of the first to re-read the whole corpus of U.S. fair use decision, from the earliest times to the present day. Among his many findings we were drawn to one in particular: That when courts consider what should or shouldn’t be viewed as fair use in a particular area of cultural practice, they look for information about what people who work in that field believe legitimate and appropriate where the use of other people’s copyrighted material is concerned. So it seemed to us that there would be multiple uses for documentation of the values that people different communities of practice hold and (with essential support from various grant-making foundations) we began to work on generating it, with (of course) essential help from organizations in those fields. Over 15 years we’ve helped 12 or 13 such communities come up with their own guidance documents, including documentary filmmakers, K-12 teachers, specialized archivists, scholars in several disciplines, poets (and critics of poetry), academic libraries, visual arts professionals, and more. Members of the field themselves are — of course — the primary audiences of these documents, and secondary audiences include gatekeepers, rightsholders, and should it be necessary, judges. So far, though, it hasn’t been necessary. In the time since publication of the documentary filmmakers’ document in 2005, there has never been a court challenge to anyone who has relied on the relevant Code!

KC: Do you have a favorite code of best practices?

PJ: I have to say the documentary filmmakers’ Code, not only because it was first, but because we’ve had the longest time to see the important and exciting ways in which it has affected the field. Within months of its release, the most important gatekeepers in the field — broadcasters and insurance companies — had changed their policies in favor of recognized well-ground assertions of fair use by filmmakers, and that (in turn) has led to films being made that would never have been made before, as well as films be made in better and truer ways than previously would have been possible.

KC: Currently, you are working on a project involving best practices in fair use for software preservation. Why is this an important project?

PJ: The first 50 years of software history are of enormous interest today. For those studying software itself (from cultural and technological perspectives), the ability to analyze and interact with vintage software is essential. The same is true, of course, where investigations of software-dependent born digital materials (from text documents to CAD files) are concerned. So finding, saving and making available old programs are crucial. In this race against time and the forces of deterioration, however, copyright is a barrier, since practically every action that an archive or library might want to undertake to build a software collection or make accessible is regulated by copyright law. That’s where fair use comes in, of course, and why we are excited to be working on a Code with members of the software preservation community under the auspices of the Association of Research Libraries, and grateful that the support of the the Alfred P. Sloan Foundation makes this work possible.

Miscellaneous

KC: I’ve talked on this blog previously about various career paths in intellectual property, including ones where public interest and intellectual property overlap. As someone who has taught and mentored students and new graduates, including leading an IP clinic, what career advice do you have to someone interested in the application of fair use or user rights generally?

PJ: There’s a need for IP specialists and an even bigger one for legal generalists who can give practical, up-to-date advice about the application of fair use to future or ongoing creative, academic, and commercial projects (including ones in the tech field). Sometimes lawyers also need to get involved in helping their clients explain to various gatekeepers about why they shouldn’t stand in the way of fair use-based undertakings. This can be enormously satisfying and significant work. And, of course, from time to time a fair use issue may actually find its way to court, though I wouldn’t count on making a career out of such litigation. So the advice is to learn copyright law well, to take advantage of opportunities like IP law clinics that allow students to practice skills like advising clients under academic supervision, to keep your copyright knowledge up-to-date throughout your career, and (after graduation) to seek out opportunities to apply that knowledge (by becoming your firm’s in-house expert, taking on pro bono clients, etc.)

KC: One final question. Do you have a favorite fair use case?

PJ: From a purely sentimental standpoint, I’d say Authors’ Guild v. HathiTrust, where I had the honor to be part of a great legal team working for a wonderful client, the National Federal of the Blind. But taking a slightly more academic view, I’d probably say Bill Graham Archives v. Dorling Kindersley, a landmark 2006 Second Circuit decision that gave us the fullest glimpse we had had up to that time of where fair use analysis focused on the question of transformativeness was heading.


Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.