Fair Use for Educational Purposes Said Neglected as Legal Issue
The publicity surrounding lawsuits against parodists is distracting from fair-use legal issues that educational institutions such as libraries face, an academician told the Computers, Freedom & Privacy Conference Wed. Georgetown U. Law School Prof. Rebecca Tushnet said libraries in particular are treated the same as the original Napster under copyright law. An intellectual property advocate at the event defended the need to clearly delineate fair-use exceptions to let markets develop for other uses.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Libraries offer large-scale access and “consumptive uses” of works -- substitutes for purchases -- just as the original Napster and its legally questionable file-sharing progeny do, Tushnet said. Some libraries have audiobook subscriptions through iTunes and let patrons check out iPod Shuffles full of the works, which could be a violation of iTunes’ terms of service. Libraries and P2P services can’t be distinguished by the presence of a legitimately purchased copy of a work -- people typically upload a legitimately purchased CD on P2P networks just as libraries buy an initial copy that gets checked or copied through interlibrary loans, she said: “The law… lacks some tools to distinguish” between clearly infringing activity and educational copying or repeated use.
The solution may be development of DRM tailored to library use, Tushnet said, but that has problems, too. Referring to the content industry description of DRM as a “speed bump” to piracy, she said speed bumps “kill people in ambulances” and slow down law enforcement -- raising the need for special rights for some players. But even with library- specific DRM, the courts would need to look over the same disputes that plague DRM today, such as circumvention tools for those arguing fair use, she said.
Fair use claims sometimes get stretched to the point they preempt legitimate markets that could develop, said Progress & Freedom Foundation Fellow Jim DeLong. Many academicians believe “fair use means academics get it for free,” but that ignores the fact that materials used for educational purposes were often created specifically to market to academicians in the first place, he said. Letting markets develop for certain works in fields such as documentaries could actually enable the use of desired material by speeding the process and diminishing lengthy, costly litigation. DeLong compared fair use problems to the waiting period for patents to be considered: Some users need “the ability to buy speed,” but markets aren’t allowed to exist in those fields. He commended an effort by documentary film makers to formulate fair-use standards across their field, which will help courts decide what’s considered mainstream in film making.
The appeals courts haven’t uniformly agreed on what constitutes fair use, said Brennan Center Fellow Marjorie Heins. Free Expression Project founder Heins rattled off major defeats for defendants arguing fair use as a transformative activity, such as a settlement limiting distribution of a Starbucks logo redrawn to spell “Consumer Whore” with a gold-digging mermaid. Some cases are laughable -- a woman selling homemade piggy banks at Piggybankofamerica.com took down her site after legal threats from Bank of America -- and others never get to trial, such as DJ Danger Mouse’s mashup album crossing The Beatles with Jay-Z, Heins said.
The so-called 512 takedown notice aimed at ISPs, named after its Digital Millennium Copyright Act section, has a counternotice provision to inform alleged infringers before their material is removed, but it’s rarely used, she said. The use of cease & desist notices -- even when they have little chance of holding up in court -- creates “a kind of folklore” among those targeted, leading them to censor themselves even when claims against their use of works could be weak, said Dir. Patricia Aufderheide of American U.’s Center for Social Media.