Use It, or Lose It (cont.)

Pat Aufderheide:It’s interesting, too, because so many people we talk to in the field, a lot of them educators, will say they need a clear, simple, bright-line rule. But it’s worth pointing out that we don’t do this around other free speech rights. There are lots of decisions people are comfortable making on a case-by-case judgment without bright-line rules—obscenity, indecency, libel, slander. These are all things people decide intuitively on a daily basis, even though there are very strong legal penalties for making a mistake. Yet fair use, because of this very sort of moralized discussion, is something that causes people anxiety. People have also told us, for example, that they need to give their subordinates a clear idea of how to stay out of trouble, but, to me, that is saying that you can’t trust people to use their own judgment, or that fair use is too difficult for people to understand.

In fact, that’s right out of the plaintiff’s playbook in the GSU case—publishers argued that complex fair use decisions are being offloaded onto professors who, even though they have advanced degrees, can’t understand how to apply copyright law with only broad guidelines to help them.

Peter Jaszi: Right, so the industry says it has to make it easy for you, and, in two ways. First, by reducing fair use to specific numbers that even you idiot professors can understand. And then, by monitoring those professors to make sure they actually implement fair use the way publishers want them to. But that’s not the law, and it’s not the spirit of fair use.

Pat Aufderheide: And it’s not the spirit of freedom of expression, and it’s certainly not the notion of American liberty that people have about their rights in general.

As publishers and others sell their products digitally, should we be concerned that licenses might make fair use a nonfactor, either by charging for and authorizing such use within the license agreement or by prohibiting the practice altogether? Is fair use threatened in a licensed-access digital world?

Peter Jaszi: That’s a good point, and a big issue. The Supreme Court hasn’t addressed this, but in all honesty, the lower court opinions on this issue so far suggest that if a vendor and a purchaser negotiate license terms that constrain the exercise of fair use, those terms are binding. What does that mean? It means that purchasers have to be very, very careful in their license negotiations. There are plenty of examples of libraries and institutions that have successfully negotiated licenses that keep all or part of the fair use doctrine alive, even with respect to purchased or subscribed-to digital databases. But if you don’t do that, you get what you negotiate.

Pat Aufderheide: This is one reason why I feel a tremendous sense of urgency about this book. People have to know that they have rights. They have to value these rights. They have to protect these rights, and recognize what they may be signing away in licenses. And not only in license agreements at the library, but whenever people get on Web sites and click on terms-of-service agreements or agree without protest to the kinds of limitations that providers like YouTube put on users who may be identified as wrongly using copyrighted material, even when the use is fair use. If people just go along, if they don’t even know their rights, that’s dangerous. And the timing of this book is critical because this is a moment of transition. We are moving to a system where licenses and technical means can override one’s rights. But it is still possible to decide that that’s a bad idea and to demand a different way of doing things.

When it comes to technical means, which many in the creative industries are now pressuring ISPs to adopt to police their networks, can these things ever effectively replace our tradition of fair use?

Peter Jaszi: Clearly, no. There have been a few efforts over the years to try to create intelligent systems that might make some contribution to fair use analysis, but they’ve all been bombs. The only way one could possibly make something like this work, and I say this very tentatively, because I don’t know whether it could actually work, would be to build in a rapid response capability by which someone who is blocked or gets a letter can, without exposing themselves to further risk or litigation, request that human beings take a look at the use, because that is core to doing the kinds of things that we not only are permitted to do in our copyright system but are encouraged to do.

In the book, you write that we are now “a remix culture,” a nation of “makers and creators.” Do you sense that this emerging, growing remix culture bodes well for how future generations will understand and protect our copyright traditions?

Peter Jaszi: Yes, but Pat is right that we are at a very, very urgent moment. I think there are two ways this story might unfurl. One is that as we recognize copyright affects us all, we’ll exercise and fight for the rights we have. But if we don’t do that, and this idea of pay-per-use access to culture becomes completely ubiquitous, then 10 years from now, I’m afraid the situation may be irrecoverable.

Pat Aufderheide: Right now, I think the prevailing idea is still that young people think everything is free and they just do whatever they want. But that’s not our experience. Peter and I conducted a study with students who were producing remixes, and we discovered that young people are very, very concerned about getting into copyright trouble. So, while they are making lots of great stuff, they are also self-constraining their creativity. I think it is entirely possible this little moment in time could end up looking like the Russian revolution, where, at the beginning, artists flourished and a lot of great stuff was made, and then, it was Stalin and social realism. Obviously, I’m not drawing a direct parallel. I’m just saying there have been wonderful, creative moments in history that have fallen victim to overly restrictive regimes. And if people aren’t able to see what other people are doing, and then build upon it, then creativity can’t grow, and we all suffer.