Copyright reform hearings continue to lumber along in the House of Representatives, with Tuesday's in the Judiciary Committee marking the seventh in as many months. This hearing was dedicated to "The Scope of Fair Use," and though the panel of witnesses was more diverse than in some of the earlier hearings, there were still some disappointing trends in the conversation.
One area that got significant attention was the topic of mass digitization, which has been repeatedly determined by courts to be a fair and transformative use. Not only is it fair, but as Professor Peter Jaszi noted during the hearing it is also tremendously beneficial, enabling the indexing and searching of huge sets of works.
Several panelists, however, pointed to the legal status of mass digitization as evidence of "fair use creep," stressing its supposed lack of “transformative” quality over the other fair use considerations. That's a mistake. Mass digitization is absolutely the sort of thing fair use is supposed to enable. Fair use is a flexible doctrine, not a rigid list of exceptions, so that it can accommodate changes in practices or technology.
Even more troublingly, some panelists seemed fixated on the commercial character of a use in determining whether it could be considered fair. On the one hand, the Supreme Court is abundantly clear that commercial use does not preclude a finding of fair use. But to listen to some of the panelists Tuesday, the notion seemed to be that if anybody is making money, rightsholders want a cut—or worse, the power to veto the use in the first place. The definition of commercial use, too, was stretched to its breaking point: according to one panelist, an otherwise non-commercial video remix can be tainted with the label of commercial as soon as it is posted to an ad-supported platform like YouTube.
That same panelist—the songwriter and copyright expansion activist David Lowery—also repeatedly raised hip hop as an example of copyright working effectively without fair use because the genre has managed to achieve popularity despite often requiring licenses for musical samples. Of course, this characterization overlooks how licensing schemes limit what sorts of creativity are sanctioned under the law, and that seminal works in the genre simply could not be made under today's understanding of sampling.
Taken together, these two themes represent a pernicious misconception that there are "legitimate" works—the ones presented by companies that belong to lobbying organizations with multi-million dollar budgets—and "illegitimate" ones that require permission to be created or commercially exploited.
In terms of the law, the Supreme Court rejected that argument over 100 years ago, and has been reaffirmed numerous times in cases like Campbell v. Acuff-Rose Music ("Whether ... parody is in good taste or bad does not and should not matter to fair use") and Yankee Publishing Inc. v. News America Publishing ("First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed"). Any understanding of fair use has to reflect that legal tradition.
Although it didn't get much attention during Tuesday's hearing, issues of fair use are complicated by the incredibly high penalties that can await those accused of infringement. These punitive fees discourage artists from actually exercising fair use rights as they create.
One panelist, Professor June Besek, recently suggested that statutory damages don't need to be addressed, but her record on this issue is troubling. Writing to the Department of Commerce this month, Besek pointed to a $6,000 court judgment won by notorious copyright troll Prenda Law—a judgment that was almost certainly achieved by fraud—as an example of the current copyright law working well.
Professor Besek said that copyright penalties for individual file-sharers don't need fixing at this time because cases like Prenda's (brought using the law firm's alter ego, AF Holdings, as plaintiff) result in damages "under $10,000." It's widely known that Prenda has coerced millions of dollars in "settlement" payments from Internet subscribers by building false copyright cases on a framework of shell companies, forged documents, lies to the courts, and threats of $150,000 penalties. Using an AF Holdings case to show that the copyright system is working well—because the fraud victim lost $6,000 instead of a possible $150,000—is bizarre, and casts doubt on Professor Besek's testimony.
Tuesday's hearing was cut short by other legislative action on the floor, but as Committee Chairman Goodlatte noted, it was "perhaps the most important copyright hearing" yet. Congress should continue to get the opinions of witnesses like Professor Jaszi and Naomi Novik from the Organization for Transformative Works—people that have experience with art and media that depends on fair use.