Mary: Thanks for sending us new updates forthe Copyright Overview pages. How is fair use holding up in the 21st Century?
Rich: As always, fair use is under attack by business interests; but it’s not endangered. Over the last decade there’s been a two-pronged effort to shut down free use of works: first, by closing down the public domain; and second, by chipping away at fair use. I think the attack on the public domain has been more successful. I recently read a pre-publication copy of Steve Fishman’s treatise, Copyright and the Public Domain (Law Journal Press) and he documents the sad story –how legislators, litigators, and corporations have plundered the public domain over the last ten years.
In general, fair use has not suffered the way the public domain has, even though a lot of the same forces like the DMCA and licensing law are at work. Courts, for the most part, have been reasonable and consistent when applying the fair use factors. Most important, there are well-heeled companies and individuals who are willing to defend fair use rights, something that’s not always the case for public domain issues. For example, thanks to Google, there are clearer rules about search engines, thumbnails (small low-resolution reproductions of images) and caching (when a search engine saves information from a web page for future reference). And for those who appreciate fair use precedents for artwork, we have to thank appropriation artist Jeff Koons, who after several fair use losses — Rogers v. Koons, United Feature Syndicate, Inc. v. Koons, and Campbell v. Koons — finally won one (Blanch v. Koons) as genuinely transformative use. As William Patry wrote, “If the White Sox can win the World Series, Jeff Koons can win a fair use case.” Keep in mind that in many cases, it may be cheaper to work out a settlement but litigants like Koons and Google stuck it out thereby providing us with much-needed precedents.
Mary:What’s the greatest danger to fair use?
Rich: Some think it’s the DMCA (the Digital Millennium Copyright Act), and others like the Brennan Report on Fair Use blame the whole “clearance culture” that permeates arts and entertainment. Others point at the assertion of trademark rights. But for those down in the trenches responding to cease and desist letters, I think the greatest danger to fair use is the escalating cost of litigation. With attorneys billing over $500 an hour, it’s harder and harder to justify defending a fair use claim. So small entities shut it down and cave to demands. We’re seeing the emergence of what you might call copyright trolls—companies that bully smaller entities into paying license fees.
As we point out on the site, you never know for sure if something is fair use until a court rules on the matter. So sometimes fighting the battle is important. I’ve been tracking legal costs in a blog at Nolo called What Price Justice? I’m not sure people are really aware—at least until they walk into a lawyer’soffice—how out of control legal costs have gotten.
Mary: How would you characterize the change in fair use cases in recent years?
Rich: One thing of interest is that judges seem to be more tolerant of the use of thumbnails. We’ve seen fair use rulings in favor of thumbnails in a timeline in a book and in two cases, as part of search engine results. That’s not to say that all thumbnail uses are a fair uses, but courts have distinguished the commercial value of low-resolution versus high-resolution imagery and seem to comprehend that low-resolution uses are generally for transformative purposes. That may prove helpful for bloggers arguing for fair use claims of thumbnails.
As for the use of copyrighted materials in search engines, the Ninth Circuit even went so far as to say that “[A] search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work.” (Perfect 10 v Amazon). That’s a pretty strong statement and one that should make Google happy. And also—again thanks to Google’s efforts—it’s a fair use to display a cached website (a temporarily stored archival copy) in search engine results.In the music world, there haven’t been any surprises. It didn’t shock anyone when the courts ruled that downloading songs without authorization is not a fair use.
Mary: What does the future hold for fair use?
Rich: I’m awaiting the results of the smackdown between Google and publishers and authors over Google Book Search. Last year I spoke with general counsel for one of the plaintiff publishers and he seemed pretty adamant that fair use did not apply to complete copies of books. That’s what the movie studios said about copying films before Betamax. After all, if search engine results are transformative—as the Ninth Circuit has ruled—then shouldn’t Google’s book search feature be equally transformative? Stay tuned.
Rich Stim is the author of the Stanford Copyright & Fair Use Center’s Overview pagesand of Getting Permission (Nolo: 2007)
Mary Minow is a consultant with LibraryLaw.com on copyright, privacy and freespeech issues.