Bits Debate: Mixing It Up Over Remixes And Fair Use

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By Saul Hansell

Tags: bits debate: copyright, Copyright, fair use

UPDATED /16, 3:22 PM

If the issue behind our debate this week about copyright and piracy in the digital age is how much control creators should have over what happens to their works, one of the key extensions to that question is the matter of fair use. Remixing is a key part of today’s culture, as people use commercial music and video as the raw materials for their own creations. Not surprisingly, Rick Cotton, the general counsel of NBC, and Tim Wu, the professor at Columbia Law school see these issues rather differently. You can read the entire debate here. Be sure to read the many thoughtful comments submitted by Bits readers. Then add your own views too.

Wednesday’s Question

What is fair use in the digital age? How much can I remix, quote, make fun of, or summarize without infringing on a copyright?

Rick Cotton: Before responding to this question, I want to make a preliminary observation. The debate about content protection in the digital world — and most particularly about content protection on the broadband internet — is really and truly NOT a debate about fair use. The millions upon millions of pirated, infringing copies of entire movies, TV shows, games and software that are epidemic in today’s digital world have no claim whatsoever to being fair use. And efforts to reduce that traffic on video-sharing sites, on ISP networks, and on devices can be engineered to accommodate fair use. Hopefully, therefore, we can all agree, for example, that the vast P2P traffic involving the transmission of entire movies that is indexed on pirate websites and exchanged endlessly through broadband connections is most assuredly not fair use and deserves no protection. And similarly posting whole movies or whole episodes of TV shows or extended unedited excerpts on video websites deserves no protection.

Turning then to the question of fair use as posed in today’s question, I offer the following observations:

Fair use in the digital age is the same as fair use in the non-digital age. The fact that digital tools make it easier to use other people’s work doesn’t affect the analysis of whether that use is fair. Generally speaking, if you are making fun of, criticizing or commenting on a work (and not just reproducing or copying it), courts have found that you can use the work only to the degree necessary to make your point about that work.

It is also helpful to note what is not included. The fact that now individuals with relative ease can layer three or four songs, copy their favorite scenes from their favorite television shows, or take three or four movies and splice together their favorite action scenes and post them online does NOT mean that these uses are fair. Although some commentators have argued that the “non-commercial” nature of this type of use makes these uses fair, that is not the test under the Copyright Act. There needs to be something more — something that truly injects some degree of original contribution from the maker other than just the assembly of unchanged copies of different copyrighted works.

Lawyer’s footnote: Since fair use is a legal standard with a long history of interpretation, it is difficult to try to capture it in a brief answer. But, as a technical legal matter, fair use is not a “right,” a misconception and misstatement frequently made these days. Rather it is an exception to the copyright owners’ exclusive rights to determine how their expression is used in new works. Fair use permits use of portions of a work under limited circumstances, many but not all of which are set out in the Copyright Act. Because fairness cannot be reduced to a set of bright line rules, whether a use is fair is determined on a case by case basis and a large body of law has developed over decades to address this issue. The Copyright Act sets out a four factor test (although other factors can be considered). The factors include the purpose and character of the use, the nature of the original work, the amount taken from the existing work and the importance of what is taken and the effect of the use on the potential market for or value of the copyrighted work. Thus, as a legal matter, a case-by-case analysis remains the standard.

Tim Wu: Fair Use doctrine is creaking and groaning in the digital age, and it threatens to be surpassed by industry practice. There was once a well-understood line between what original and “secondary” authors were allowed to do. In the literary world this was the line between original book on the one hand, and a book review or literary criticism on the other. But today things are much more confusing. Books begat films, character merchandising, giant fan guides, remix videos, fan art and other forms of secondary authorship that simply didn’t exist 100 years ago. These forms of authorship are in a gray zone; likely to fail the “four factor test” of fair use, but nonetheless largely tolerated by firms like NBC as a form of marketing. It is a sign of how ridiculous things are today that a copyright lawyer cannot give you a straight answer as to how much of Wikipedia is actually legal.

That’s why it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use. In my view that’s a principle already behind the traditional lines: no one (well, nearly no one) would watch Mel Brook’s Spaceballs as a substitute for Star Wars; a book review is no substitute for reading The Naked and the Dead. They are complements to the original work, not substitutes, and that makes all the difference.

This simple concept would bring much clarity to the problems of secondary authorship on the web. Fan guides like the Harry Potter Lexicon or Lostpedia are not substitutes for reading the book or watching the show, and that should be the end of the legal questions surrounding them. The same goes for reasonable tribute videos like this great Guyz Nite tribute to “Die Hard.” On the other hand, its obviously not fair use to scan a book and put it online, or distribute copyrighted films using BitTorent.

We must never forget that copyright is about authorship; and secondary authors, while never as famous as the original authors, deserve some respect. Fixing fair use is one way to give them that.

Tim Wu 1/16, 3:22 PM: Rick describes fair use as not a “right” but an “exception,” and argues that every fair use issue must be decided a case-by-case analysis.

It is true that the Supreme Court has so suggested; but arguably they were referring to categories of works. For it is absurd to have a system where fair use cannot be categorically relied upon, ever, but that secondary authors will always be at some risk of infringing.

Take a publication like the New York Review of Books. Every review relies on an underlying work, and usually quotes at least a few lines. It strikes me as ridiculous to say that the reviews must be examined on a case-by-case basis, and may sometimes infringe, sometimes not. Rather, we should say that these reviews are categorically fair use, by right of the secondary author. It is absurd to have a publication like the New York Review of Books lying under the equivalent of Copyright’s sword of Damocles, wondering whether is breaking the law.

Now publications like the New York Review are established, and therefore unlikely to run into lawsuits. But newer types of publications, like fan guides, have no such cushion. That’s why I believe courts should do more to create bright lines as to what is fair use and what isn’t.

There is another way. As I’ve suggested in other writing, many of the ugliest Fair Use questions can and should be avoided by careful interpretation of the adaptation right. That is to say, I think we shouldn’t say that a book review would be infringing, but for fair use. Instead, we should say that the original author simply doesn’t “own” the book review in the first place. All the works that are true complements, in my view, should not fall under the “adaptation” right; but rather be something secondary authors are free to create. This may sound like legal mumbo-jumbo, but to simplify: we need to ask carefully what the breadth of the original author’s ownership is, and it shouldn’t include secondary works that add to the value of the original, like book reviews, fan guides, and so on.

THE DEBATE CONTINUES Mr. Wu and Mr. Cotton will respond to each other and to comments by readers in this post throughout the day. So check back here to follow the discussion. And please add your questions and comments below. If you have a question you would like asked in the debate later this week, propose it in the comments to this post.

THE DEBATE SO FAR

Monday: Is Copy Protection Needed or Futile? Tuesday: Should Internet Providers Block Copyrighted Works? Wednesday: Mixing It Up Over Remixes and Fair Use

This is a frustrating exchange that mostly misses the point. Just in the U.S., we’ve collectively spent billions every year over the last several decades creating an infrastructure that reduces the marginal cost of moving information back and forth. Arguing about whether the question is “what is fair use” or “what should fair use be?” misses the point. In a context in which everyone is a publisher, the critical question should be “what are the reasonable protections authors should be given to encourage more creation?” Rather than quibbling about the size of the exception to copyright, we should be reexamining copyright. In that light, the protests of a couple of large publishers whose antiquated business models are predicated on authors’ inability to cheaply publish seem analogous to buggy whip manufacturers’ complaints about the Model T.

†Posted by John

Mr. Cotton, makes a highly erroneous statement that has the “feel” of a legitimate statement. Mr. Cotton stated: “Fair use in the digital age is the same as fair use in the non-digital age.” Untrue.

Think of it this way, if you buy a book you are able to read it anytime. You can also go to various countries and read it. After you are done reading the book you can mail it to a friend and they can read it too.

The advent of the digital age has been used by the content industry to deprive the consumer of fair use. For example, DVD players come with region encoding so you can not play a movie bought in one region in another region. Microsoft and Apple have implemented DRM technologies that eliminate your ability to move songs from one device to another. Worse yet, your device dies - so does your investment in legally purchased content because you are “prohibited” from transferring the content or making back-up copies.

As I have previously mentioned in other posts, the holders of a copyright have been gaining rights while depriving the consumer of rights. So when Mr. Cotton complains of “piracy” it is based on an increasingly anti-consumer standard of review.

(By way of a bad analogy - a yellow light gives you 5 seconds to clear an intersection before you get a ticket. Now the yellow light only gives you 2 seconds before you get a ticket. They content industry “stole” three seconds from you. However they claim, if you don’t pay the ticket, that you stole from them!)

†Posted by Steve R.

I am trying to give Mr. Cotton’s statements a fair read, because I can tell he really wants to protect the interests of the content creators. And I agree with that. But I can’t agree with his tactics:

1) Too much emotionally manipulative language: “This indefensible massive trafficking simply must be reduced in any kind of law abiding society.” His constant reminders of what “law-abiding” people would do assumes that most of us couldn’t figure that out anyways. Which leads to:

2) Assumption of guilt. Most of his comments assume that the everyone is guilty until proven innocent. Constantly telling people what “law-abiding” citizens would do assumes that all readers are criminals. In America, of course, we believe the opposite. We are innocent until proven guilty. Does he have proof that these millions of files online (that should be “breath taking” to the few “law abiding” citizens out there, and I guess unsubstantial to the rest of us?) are actually illegal copies? I would assume that they are, also - but can’t make that claim until I have proven it. Just having the files up there doesn’t make them illegal. If I am eating lunch with a friend, it is not illegal for me to bring a copy of my CD in to the restaurant and leave it on the corner of a table while we eat. If someone comes along and steals it, THEN a crime has been committed. The table does not have to have a lock on it, and the restaurant does not have to check everyone’s pockets to make sure they haven’t stolen everything before they leave.

3) That a pretty sorry example, but no worse than some of the ones used in this debate. Comparing digital locks to door locks or passwords? Let’s compare apples to apples here. Door locks and passwords have proven to be effective since day one. Digital locks have not.

Yes, I know the size and volume of Internet traffic makes it difficult to just go after people who do the downloading, but this leads to my final point:

4) Mr. cotton says “The imperfect protection offered by anti-piracy technologies - ‘Every lock can be picked’ - is no reason to give up on them.” Well, then, the size and scope of the problem of Internet traffic is no reason to give up on going after the downloaders and go after ISPs or other people that a “law-abiding” society should not go after. Just a brief scan through of a few bit torrent sites, and I find these statements over and over again:

“Do not use this torrent if you do not have a legal right to own a copy of this file!”

“If you like this file, please support the artist by purchasing it!”

I know that these people still have the laws wrong, but I think it becomes easy to see that the intent of many of these people is not to share illegally. Is is right to assume that they had the intent to distribute content legally just because they had the files on a public forum? Well, I guess there are several examples of rules that show we don’t care about intent any more in this country. And I think that this debate so far has ignored the whole issue of intent.

There are many reasons why sales are slipping in the entertainment industry, none of which have been addressed. People got tired of going out to buy an album with a song on it that they heard on the radio, only to find out that this song is the only good one on the album, and the record company obviously didn’t put an money into any other songs. People got tired of building up entire collections in one format (VHS, tape, etc), only to have it go obsolete in a few years when a new format is released, forcing them to re-buy their entire catalog (with no discount for trade-ins). People got tired of having to re-buy up to 25% of their collection each year because the format was cheap and inexpensive, breaking or scratching easily and needing replacement. Digital files eliminate all of these lucrative secondary sources of income that companies have relied on. Why don’t we see these facts accounted for in any statistics? Or - how about weird stuff like this: 10 digital songs equals one album? Nope - 1 digital song equals 1 entire CD not bought because that song was the only good song on the CD.

Or maybe, people (like me) finally discovered that it’s cheaper to wait a few months and buy stuff used on eBay or Amazon. You never hear companies bringing that up…..

†Posted by Matt

As I see it, there is also a collision here between Freedom of speech and Copyright as well — other topics have been well tread.

In the modern digital world expression is so free and so cheap that making use of another’s work is trivial and worthwhile. I mean, imagine the work of doing a multi-video mashup using LP’s and projector film. Only really talented people on really expensive gear could do it (even now). In digital form it’s a trivial matter. If such a task were to be attempted today in a professional environment the first thing that would be done would be to digitize the media for easy processing.

So, what we see is that the technology has fostered drastic reuse. As Copyright law stands now though, a work created today has NO CHANCE to exit copyright protection (unless the author dies today too) in your life. (it’s 75 years AFTER the death of the author!)

We also have economics at work here: Supply and demand dictates that as the supply goes up, if the demand stays constant than the price MUST come down. When copyrights were first brought to this country the author himself could scant reproduce his work. Then we went from sheet music to musical drums, then to vinyl, then to cassette, 8-track,CD, and now MP3. In each case the ability for the copy to proliferate has increased tremendously. Yet, in that same time copyrights have gone from 14 years + 1 extension of 14 years, to 75 years + AFTER the death of the author. By granting longer durations to copyrights we are giving more values to those rights just as the supply continues to go UP!

Supply goes up, demand remains constant, and the value (extensions to copy right) go up too? That is simply economic rent not innovation.

Copyrights have become a lottery and not a ticket to innovate. A lucky band makes it big but the huge majority of them fail miserably. That is if they don’t squander it all.

A little known DJ called DangerMouse (Danger mouse is also a British cartoon character — no relation) produced a mixed album between the Beatles White album and Jay-Z’s black album and it was considered wildly popular in the underground. But he didn’t have permissions to remix the white album and so it was pulled from shelves.

The Ironic part: The copyrights to the that album are owned by Micheal Jackson, not the heirs of John Lennon.

†Posted by christian

Contrary to Mr. Cotton’s statement, fair use **is** a right, in exactly the same way the First Amendment gives us a “right” to free speech.

Just like fair use, the First Amendment is technically a defense to a legal claim. But that doesn’t stop sensible people from calling free speech a “right.”

The analogy is particularly apt, since the Supreme Court has recognized that one important role for fair use is to reconcile copyright with the First Amendment.

†Posted by Fred von Lohmann

Mr. Cotton is beginning to sound like a broken record, prefacing every response with the same argument: “But the pirates!”

Perhaps he ought to take a look at Mr. Pogue’s column from a few weeks ago, entitled “The Generational Divide in Copyright Morality.” Much of the entertainment industry’s target demographic sees nothing wrong with swapping copies of television shows and movies they could have recorded 10 years ago with a VHS tape. Mr. Cotton submits that such behavior is illegal; but I ask, is it wrong?

In high school, a friend of mine used to tape episodes of “Frasier” for me. Today, kids in high school simply download missed episodes, or, in many cases, watch them online at the network’s website. You’ll have to excuse me if I (and they) see little moral difference between the three.

†Posted by Gabriel Michael

Mr. Cotton is being entirely disingenuous when he claims that the debate about “content protection” (aka DRM) is not about fair use. Of course it is about fair-use. The logic is not even complicated:

- The determination of whether the act of making a copy qualifies as “fair use” is a judgment call (the “four-part test”) which by its very nature *cannot* be reduced to computer logic. A court using the four-part-test, for example, would in all likelihood consider it to be fair-use to copy a 30-second video clip off a DVD for the purposes of making a video-podcast review or a parody. - DRM technologies, however, prevent a person from making a copy based purely on hard logical rules embedded in the computer code. In the case above, the DRM in DVDs (CSS/Macrovision), prevents any and all copying of any piece of video on a DVD irrespectively of any other considerations. - Ergo, DRM technologies, in many cases, *prevent* people from freely exercising their fair-use rights. In the case above, a person is unable to do something they are entitled to do by law (copy an excerpt of video on DVD for fair-use purposes) because the digital locks in place make no room (and because of the nature of computer code, *cannot* make any room) for the vagaries of whether a copy qualifies for fair-use or not.

As an attorney familiar with DRM and IP issues, either he’s aware of these and is willfully eliding the issue in a deceitful manner, or he’s unaware and therefore unqualified to comment. Which of these is the case?

†Posted by Iván

The idea that ‘fair use’ includes only things that ‘add value’ to a product is a dangerous and troubling one. This deeply pernicious concept would in fact remove from the realm of fair use most negative criticism and parody! In fact, there is a realm of derivative speech that necessarily involves quotation, echoing, mirroring, reordering, and other kinds of use from an original work - and many of these derivative works make the original less valuable or less useful to the original author. They may shame the author or destroy the apparent authority of the original. They may cause people to not purchase a work (anti-marketing). They can even substitute for the work in some non-commercial contexts (photocopying from the library for personal research is a classic example). What they cannot do, to be ‘fair use’ is to redirect the profits of sale away from the original creator to someone who does not hold license or title to sell the work. This preserves contracts between author and publisher, for example.

†Posted by Ben Kirkup

Powerful rights holders are affected differently by widespread copying and distribution. The viral nature inherent in disseminating intrinsically appealing works — whether in excerpt or in entirety — can have a cost-free promotional effect with Darwinian survival rules. This is a new and interesting social positive.

The small guys are benefited by uncontrolled distribution since they have no other realistic avenue to get noticed. The big guys need to control distribution for survival’s sake. One can sympathize with a fight for survival, but revolution is in the air and it will not be televised.

The strategic disregard of major rights holders and their shills for the fact that small-time creators need big-time exposure to be appropriately compensated is understandable, but disturbing. Why do these fat-cats cloak themselves as defenders of the little guy as well as the big guy? If they are as intelligent as we may give them credit for, this position is disingenuous and offensive.

Give the little guy the means to infect a fan base and he is off and running — provided he isn’t appropriately culled by Darwin. At that point he has a chance to make money on tour, by selling fan’s merchandise, by appearing in commercials, or by some means yet to be invented. It has never been easy to be discovered, so here is a new way.

Creative works are enhanced in consumer value by widespread dissemination. The option to share, discuss, simultaneously enjoy, and simply be synchronized with like-minded people is a delight and an urge.

Solitary enjoyment is fine, but often not as rewarding as feeling a part of something. Arguably, widespread filesharing is not a product of moral bankruptcy, but rather the primal desire to feel connected to a “tribe,” perhaps an antidote of sorts to earbud loneliness.

Let the big rights holders earmark a big chunk of money for millions instead of hundreds of artists and then let’s talk about public handouts to keep you viable.

No? I thought so.

†Posted by John V

I must disagree with commenter #2 by saying that one of Mr. Cotton’s best points was that there is no difference between fair use before the digital age and during it. Creators have rights over their works upon creation, and fair use — which both as a concept and as an article of law predates the digital age — acts as a dilution of those property rights. It may be logistically easier for me to make use of a passage of a book when I obtain an unencrypted copy from a file-sharing service than when I hold the hard copy in my hand, but the conversion of that book into unprotected ones and zeroes does not somehow enable me to make more legal uses of the work.

Fair use has nothing to do with technology; it has everything to do with what society, through Congress and the courts, decides is reasonable use and unreasonable use. New technologies that enable uses previously all-but-impossible do not somehow create the legal right to exercise those uses, as the property rights of the creator remain the same whether the creation is in digital or non-digital form. If we instead decide that new technologies enable new fair uses, then we are on a path to the point where “everything” is fair use, because technologies would enable just about every use imaginable. At that point creators would have entirely forfeited their rights, something some commenters on this blog would likely welcome but is in fact counter to our law and our culture.

†Posted by Patrick Ross

You all should read http://thepiratesdilemma.com/about-the-book

Matt Mason argues that most of what we do and produce stems from “pirating,” quite convincingly I might add.

†Posted by Eric

Cotton seems to have misapprehended the issue. There is a connection between fair use and copy-protection technology, and that is the anti-circumvention provision of the Digital Millennium Copyright Act and similar statutes in other countries. Specifically, the DMCA prohibits any attempt to circumvent a technology that controls access to a copyrighted work. Federal courts have concluded that the fact that the ultimate use of the copyrighted work may be “fair” is irrelevant to the determination of anti-circumvention liability. If consumers cannot access a work in order to make fair uses of it, then copy protection has eliminated their ability to make use of the underlying work.

Cotton is correct in stating that fair use is not an affirmative “right” strictly speaking. You need to get sued before you can claim fair use. Perhaps the solution to the problem is to revise copyright law to require anyone asserting a copyright claim to allege facts that, if true, would show that the challenged conduct is *not* fair use.

†Posted by Jim Lai

I’m coming in late to this but thought I’d pose a question to those who might know: is there empirical evidence for the proposition that the availability of pirated music causes increased CD sales? People (including some of the commenters here) often claim that they bought more CDs when they listened to pirated music, the idea being that access to free (but illegitimate) copies of the music piqued their interest enough to make them buy the real thing. That always seemed at least feasible to me (if FM radio wasn’t such a disaster, it might actually be filling this consumer-welfare void), but it relies on some pretty hefty assumptions about people’s integrity and moral rightness. Has anyone studied this?

Second, is there any evidence that more aggressive pricing of content has any effect on piracy? My guess is that people generally don’t want to think of themselves as thieves, but they might think of the media companies who distribute content as little better depending on the asking price and the benefit that actually accrues to artists and creators (how long has that writers’ strike been going now, Mr. Cotton?). Perhaps better pricing and more transparency about where the money goes would make consumers jump a little less readily to illegitimate sources of content.

†Posted by PK

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