I was honored recently to attend a private book reading by Siva Vaidhyanathan and Larry Lessig at Stanford. Both spoke at length about the future of fair use, revealing a schism in perspective: Siva is generally more hopeful, Larry characteristically pessimistic. Siva suggested that society and the court system might eventually have more promising answers to the current conflicts over copyright; Larry, meanwhile, argued that "fair use is the right to hire a lawyer."
Today, Siva has a sad tale suggesting that most people have begun to agree with Larry -- and worse, that society's gatekeepers of fair use -- librarians, educators, school administrators -- are letting it happen.
The story in a nutshell: a professor at a Northeastern college asked Siva for permission to distribute a copy of a chapter of Anarchist in the Library. "Of course," Siva replied, adding that he really ought not to have asked. The professor responded by forwarding to Siva a note from the college librarian, which warns firmly that "educational purpose is only one of the four determining factors, and that the courts have weighted one of them, the impact on the potential market, heavily in recent cases." Siva, horrified, runs the use of the book chapter through the four-factor test to show that the professor has a slam-dunk "case."
"Does that mean that some silly copyright holder might sue anyway? Sure! [...]
This is the problem with fair use: It is a gamble. If you were confident that the copyright holder would not care or would not bother for fear of bad publicity, then you could go ahead and use the material as the law intended you to do. But we have all been taught that copyright holders are vultures out for a quick and easy meal. This is not always true.
But if we don't make a stand against vultures we might as well be waiting around to become carrion.
[The] important thing to remember here is that if you follow your librarian's advice and ask permission, you are making this entire fair use calculus irrelevant. Why do we need section 107 at all if educators are just going to cower upon the advice of copyright experts on campus?
It is our duty to push the envelope of fair use. And it is our duty to demand that our institutions back us up when threatened by bullying copyright holders who do not respect values of openness and freedom.
The problem with this, as Siva himself admits, is that hiring a lawyer costs a great deal of money, and paying the possible infringement penalties a lot more than that. It may be our "duty" to stand up to the vultures, but few people, and few schools, can actually afford to do it
I see four main avenues for attacking the problem:
- Fair use it or lose it. This is, I believe, Siva's main point, and it's important: on a personal level, don't give in to the fear-mongering. Don't be the person who asks Siva, Larry, or Cory Doctorow whether you can make fair use of their books.
- Use and advocate the use of Creative Commons licenses, not only to make work available but also to help people understand in a tangible way that they are entitled to legitimate uses of creative works.
- Fortify the fair use gatekeepers. Provide as many resources as we can for faculty members, librarians, systems administrators, school officials, DMCA-takedown compliance officers, legal counsel, etc., to take a stand against the bullies -- not only when push comes to shove and someone files a lawsuit, but in the small, everyday ways that cumulatively alter our perception of what constitutes fair use.
- Support and advocate supporting legislation that seeks to turn back the tide by providing affirmative protection for traditionally legitimate activities.
That's my take. I'd like to hear yours.