Copyfight: Fair Use in (In)action

Siva Vaidhyanathan had an interesting post recently that discussed the limits of fair use. It was picked up by Donna Wentworth and generated some discussion on Copyfight. See Copyfight: Fair Use It or Lose It. Siva recounts how a librarian at a Northeastern liberal arts college refused to authorize distributing a chapter of Siva's latest book, The Anarchist in the Library, prior to a lecture by Siva. Siva concluded that the use was clearly fair. Seth Finkelstein agreed, though with some reservations.

This struck a responsive chord with me because I had two very similar cases cross my desk this past year. In one, a university press objected to a major Southern university including a chapter of a book that, ironically, was about restrictive copyright regimes, in an electronic course reserve system that limited access to students in the class. In the second case, a publisher objected to the distribution of a chapter from a book prior to a lecture even though the author had retained copyright in the book and agreed to the distribution.

From my perspective, Siva's case is far from being the "slam dunk" that he suggests. Let's look at his analysis of the four fair use factors:

1. Purpose: The purpose is educational and non-commercial, but Siva doesn't address the transformative issue. The copy is non-transformative. Most likely factor one is a wash.

2. Nature: Siva said that because the work is non-fiction, the fair use claim is strong. But in MDS, following on Harper, the courts said that just because it is non-fiction doesn't mean that it is not protected. As the court said in Harper, monopoly protections accrue "equally to works of fiction and nonfiction." A wash, or maybe not fair use.

3. Amount: Siva thinks one chapter is ok given the need to have context for a discussion. I would like to think that Siva is right, but the proposed use would appear to be right in line with the awful guidelines on multiple copies for classroom use. While these are supposed to be minimum guidelines, we all know that they are treated as if they had the force of law. The limits here are much shorter than Siva would suggest: "Either a complete article, story or essay of less than 2,500 words or an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words." The question of whether the full chapter was really necessary for the discussion is a matter that unfortunately only a court could decide.

4. Market impact. Siva says none, since people might still buy the book, but the law says that the courts must consider the impact on the potential market for the work. At least since Williams & Wilkins, courts have considered the market for licensing use of parts of the work as part of the potential market. The classroom guidelines make it clear that unless there is not enough time, it is expected that the educational instiution will seek permission (and by implication pay a licensing fee) for the use.

In short, it is far from clear that the proposed use was a fair use. In order to take advantage of the protections in 504(c) of the Copyright Act, a librarian needs to have reasonable grounds for believing that his/her use was fair; it doesn't seem at all unreasonable to me that a librarian might conclude that the proposed use of Siva's book was not a fair use.

Vaidhyanathan, Wentworth, and Finkelstein use this example to discuss how hard it is to use fair use; as Larry Lessig has noted, "fair use in America simply means the right to hire a lawyer." There is a second solution to the problem, however. Namely, Siva could have made clear in the book what users could and could not do with the text. Look at the copyright statement in The Anarchist in the Library. It says that the book is copyrighted by Siva Vaidhyanathan, but adds "No part of this book may be reproduced in any manner whatsoever without written permission except in the case of the brief quotations embodied in critical articles and reviews." Clearly distributing a whole chapter to a college prior to a lecture is not authorized by that statement. Is it a surprise that a librarian might opt to respect Siva's wishes as expressed in the book and seek permission to distribute a chapter, rather than relying on fair use?

We can, and should, try to change fair use to make it easier to use. But we should also be as explicit as we can on the uses we allow. For example, on my publications I always try to include the following wording: "Permission is granted for nonprofit educational and library duplication and distribution, including but not limited to reserves and coursepacks made by nonprofit or for-profit copyshops." A statement such as this in Siva's book would have made the whole fair use analysis moot.

Comments

[Simon]

I wonder if you might be interested in checking out a discussion that is going on at mezzoblue
The issue is whether digital manipulation (extreme) of another persons image falls under fair use or is indeed copyright infringement.

The immense response has been made by mostly graphic artists, photographers and web designers who really don't understand the law behind what they are saying. It would be great to hear what you have to say about the question posed by Dave Shea.

[Seth Finkelstein]

Siva, if you don't control the rights, the part of your argument where you said:
"I -- of all people -- would probably not challenge him on it"
is not a factor.

"They should act as if they have the right."

Sigh ...

[Siva Vaidhyanathan]

Dear Peter:

Thanks for your comments.

Authors can't always say up front to what uses their works may be put. First, almost no authors have the cultural capital to demand such specific exceptions from publishers (only one of us is Lawrence Lessig). In my case, creative commons licenses did not exist in 2000 when I signed the contract with Basic.

Several times on the page proofs I amended the copyright statement so it reflected U.S. copyright law instead of the imaginary extreme position that Basic takes as a matter of policy. Every time the production editor ignored my changes.

Publishers, who also depend on fair use, should be smarter and bolder than that. They should have default copyright statements that do a better job of reflecting the loose, imperfect regulatory system that is copyright.

Here is the terrible secret of this example: I don't even have the right to grant permission to this professor. I don't control the rights.

So the college in question ended up using it anyway, sans permission.

If Basic is stupid enough to sue the college, then I would stand with the college against my own publisher. It's not going to happen, though.

And you are right. No fair use calculus is a slam dunk. And my reading could be just as valid as yours. That's one of the reasons that fair use is neither fair nor useful. It's arbitrary EXCEPT IN PRACTICE. This is why professors should not ask permission. They should act as if they have the right. Practice matters.

As Justice Holmes said, "the life of the law is experience."

Siva

[Mary Minow]

Yes, such a statement would be great. No doubt even though the copyright was in his name, all significant exclusive rights were transferred to the publisher, leaving Siva a shell of copyright ownership. (That's what happened to me when I wrote a book.) Putting the copyright statement in Siva's name is then an issue of negotiation in the publishing contract.

My contract with my publisher said the notice would be in my name (this was said to be a "courtesy" and was not difficult to negotiate) but an error caused the copyright statement to be made in the publisher's name after all. I really didn't care; in fact it made more sense to have the publisher's name, since that is the place permission seekers need to go anyway.

Once the rights were transferred to the publisher, the publisher (not Siva) would need to share your spirit in writing such a clear and generous copyright statement.