Congress’s Copyright Review Should Strengthen Fair Use—Or At Least Do No Harm
The Internet is celebrating Fair Use Week, and it’s a great time to look at what Congress might do this year to help or hurt the fair use rights of artists, innovators, and citizens. After nearly two years of U.S. House Judiciary Committee hearings and vigorous conversations within government, industry, and the public, it seems like we might see some real proposals. But other than a few insiders, nobody knows for sure whether major changes to copyright law are coming this year, and what they might be.
Fair use is one of copyright’s essential safeguards for free speech, because it allows people to use copyrighted works without permission or payment in many circumstances. It’s critical to education, journalism, scholarship, and many, many uses of digital technology. Because copyright applies to trillions of files and streams, whether trivial or profound, that flow through the Internet every day, and because nearly every transmission or use of digital data involves making a copy, copyright pervades the Internet. Now more than ever, limits like fair use are critical to protect Internet users from runaway copyright liability.
If Congress does take up copyright reform this year, there are changes that would strengthen fair use, and thereby strengthen freedom of speech. One is to fix copyright’s draconian, unpredictable civil penalties. As we explained in our 2014 whitepaper, copyright holders can seek “statutory damages” of up to $150,000 per work without providing any proof of actual harm. The law gives almost no guidance to judges and juries in selecting the right amount. That means that money damages awarded to winning plaintiffs in copyright lawsuits vary wildly, and can be shockingly large. Free Republic, a nonprofit conservative commentary website, was penalized $1 million for posting copies of several Washington Post and Los Angeles Times articles in an effort to illustrate media bias. And a firm sued for making copies of 240 financial news articles for internal use was ordered to pay $19.7 million, or $82,000 per article. It’s hard to see any connection between these massive penalties and any actual harm suffered by the copyright holders. They are far above even the sort of reasonable “punitive damages” multiplier that sometimes gets applied in personal injury cases.
High and unpredictable penalties can make relying on fair use a game of financial Russian roulette for artists and innovators. Although many fair uses are clear and obvious, brave artists and innovators often use copyrighted works in ways that no court has ever considered – and that means a risk of lawsuits. When a loss could mean bankruptcy, many won’t take the risk, even if a court might ultimately confirm their fair use. Copyright’s penalty regime is a major reason why filmmakers must spend months, and thousands of dollars, obtaining licenses for trivial or incidental video and music clips that appear in their films – even when those appearances are likely to be fair use.
Congress could help fix these problems by clarifying that statutory damages should never apply to a copyright user who relies on a fair use defense in good faith, even if the defense is unsuccessful. That would make relying on fair use a predictable, manageable risk that more artists and innovators will be able to take.
Another way that Congress could strengthen fair use is to fix Section 1201, the anti-circumvention provision of the Digital Millennium Copyright Act. Section 1201 prohibits breaking or bypassing DRM and other digital locks that control access to creative works, including the software in many personal devices. This law is a major roadblock for fair use because it can make breaking or bypassing DRM illegal even when we need to break DRM to make fair use of the locked-up material. Essentially, DRM and Section 1201 can take away fair use for artists, innovators, and consumers.
The Copyright Office can grant three-year exemptions to Section 1201. EFF is asking for new exemptions for amateur video, mobile device and car owners, and video game enthusiasts. But exemptions don’t completely fix the harms to fair use. They are difficult to get, are often written narrowly, and they don’t protect people who make tools that enable fair use by others. Any fix for copyright law should include making it legal to bypass digital locks to make fair uses of creative work.
There are also aspects of today’s copyright law that Congress shouldn’t change. One of the most important features of fair use is its adaptability to new technologies and uses that no legislature or expert could foresee. Because this adaptability is so important, Congress should reject calls to replace fair use with specific categories of exceptions to copyright for education, commentary, and the like (a “fair dealing” approach like that used in some other countries). Without a flexible fair use doctrine that lets courts apply copyright’s principles to new situations, artists and innovators would need to ask Congress for permission before they create.
Congress should also reject the disastrous notion of requiring Internet intermediaries like ISPs and websites to filter user-posted content for allegedly infringing material. As we’ve seen over and over again with voluntary filters, filtering software is terrible at recognizing fair uses—and it always will be. Proposals to replace the DMCA’s safe harbors for Internet intermediaries with a regime that requires proactive blocking or filtering based on infringement accusations will inevitably catch many more fair use “dolphins” in the infringement “tuna driftnet.”
Will there be comprehensive copyright reform this year? The answer’s not clear. Major changes take time, and that’s often a good thing. What’s for sure is that any changes must help, and not hurt, fair use.