The Yiddish/Aramaic word “chutzpah” is well known, and has been defined variously as gall, audacity, insolence, and impertinence. Patrick Ross, head of the cartoonish Copyright Alliance, seems to have chutzpah in abundance, as seen on a blog post yesterday criticizing The Center for Social Media at American University, for its release of a “Code of Best Practices in Fair Use for Online Video.” The best practices are a “Future of Public Media Project,” funded by the Ford Foundation, a fact Mr. Ross omits.
Mr. Ross is not a lawyer, but formerly was with the right wing Progress and Freedom Foundation, which usually acts as a mouthpiece for corporate copyright owners. I have no idea whether or where Mr. Ross attempts to learn about copyright law, much less fair use. For my part, I have been a practicing copyright lawyer for 25 years, and have been studying fair use even longer, beginning in law school. In 1985, I wrote my first book on copyright, which was also the first book devoted just to fair use. The treatise’s first citation was by the Supreme Court in the Harper & Row case, issued shortly after the treatise came out. Subsequently, that treatise has been cited many more times by other courts. I have testified before a joint session of the IP subcommittees of Congress on fair use, worked on amendments to Section 107 as a Congressional staffer, argued fair use cases in the courts of appeals and district courts, written an article about fair use with Judge Posner, advised many clients about it, and discussed the issue with the European Commission, and many representatives of foreign governments. I am unaware of any qualifications Mr. Ross has to talk about fair use.
Nor is Mr. Ross an educator. Yet, regarding both fair use and education, in his criticism of the Center’s Best Practices, he speaks as if he knows more than those who are copyright lawyers and educators (and some who are both), beginning with a pompous, purported correction about the nature of fair use, scolding the Center for daring to utter the term “right” in the same sentence as fair use. I describe fair use as a privilege because in a court case entitlement to it has to be proved, and in this sense it is also an affirmative defense. But the status of fair use as an affirmative defense can be overstated. Technically, it means only that an initial burden of producing evidence lies with defendant. The ultimate burden of going forward always lies with plaintiff copyright owner. Even the weight of the burden of proof can vary depending on what the particular affirmative defense is. In the case of fair use, the principle is an extremely important one, essential to the constitutional goal of copyright, and without which copyright would probably be unconstitutional. The best expression of this is in Judge Leval’s seminal article, “Toward a Fair Use Standard,” 103 Harv. L. Rev. 1105, 1110 (1990): “Fair use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright design.”
To me that is the key: fair use is a part of the design of copyright, it is not an exception to it, and it is not to be applied begrudgingly or narrowly, but liberally. Yes, there is an initial obligation of defendant’s part to show that application of the defense in the particular case is not b.s., but once you do that, the playing field is not only level, but both sides of the equation have very important constitutional heft to them. Viewed this way, the question of whether fair use is a right or not is a waste of time. But lacking any understanding of law (does he also think he knows more about fair use than Judge Leval?), Mr. Ross chose to lead off his blog with precisely such a waste of time, delivered in a schoolmarmish manner, an odd conceit since he is not an educator but is criticizing educators.
Mr. Ross was just warming up to his main them, namely that the Center is engaging in “dangerous” activities, whereas the Copyright Alliance is engaging in the copyright equivalent of safe sex. Here is what the Center says about its “Best Practices”:
This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.
This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.
WHAT THIS ISN’T
This code of best practices does not tell you the limits of fair use rights.
The Center’s Best Practices are not, therefore, legal advice, but instead an attempt to list some of the actual practices of those in the field, including, and I quote because Mr. Ross omits this, “the actual activities of creators ,” that is, those whose Mr. Ross’s organization purports to speak for but doesn't. Here is what Mr. Ross said on the Copyright Alliance’s blog yesterday about the Best Practices:
They have published a Best Practices Guide for fair use in online video. This is a dangerous effort. We at the Copyright Alliance support education on fair use and have information on our site. But our information is intentionally broad; we do not want to be in the position of giving legal advice to specific end-users of copyrighted works.
But that is precisely what the best practices guide writers run the risk of doing, although some review of the site suggests that there isn’t much “there” there. What is implied suggests a significant expansion of the current established thinking of fair use, going far beyond legal precedent. Lord help the individual who follows their guidance and finds out that just because AU says it’s fair use doesn’t mean it’s fair use.
Let’s see what this means: a guy who isn’t a lawyer, much less a copyright lawyer, thinks it is a dangerous effort for copyright lawyers, educators, and those who deal with real world fair use problems on a daily basis to address some of the common problems presented, not as legal advice, but as “best practices.” The safe sex approach, according to Mr. Ross is the type of education that Mr. Patrick’s group – a front for large corporate copyright owners – gives, namely always ask permission. I have previously blogged about the Copyright Alliances wildly one-sided view of copyright, so I won’t repeat it here. I don’t know what kind of a review Mr. Patrick Ross gave to the Center’s best practices, but I doubt it was either extensive or meaningful given the lack of a single example from the best practices themselves. He admits he only gave the Best Practices “some review,” but since he only refers to a video montage and not the practices themselves, he may have engaged in the equivalent of only reading the cover of a book.
I can say, based on my over 25 years of experience with fair use, over 25 years more than Mr. Ross has, that the site doesn’t “imply” “a significant expansion of the current established thinking of fair use, going far beyond legal precedent,” as he states. Mr. Ross’s purpose is not to engage in a constructive debate about specific examples and whether those examples are appropriately a fair use, something reasonable minds might disagree on. Rather, his purpose is to silence those who try to provide responsible, thoughtful guidance to those on the ground, and ultimately to silence those who dare to suggest there can be fair use at all.