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Make use of fair use

Note: I am so not a lawyer.


Even if you don’t use Google Books or don’t like Google Books, its victory in the courts a couple of weeks ago was a huge win for all of us.

That victory solidified our right to reuse copyrighted materials under specific circumstances without having to ask permission. This is vital to keep our culture and democracy alive.

That’s not how the Court put it but that’s the essence of the Fair Use doctrine, a limitation on the reach of copyright that is, alas, unusual among nations. Fair Use lets you reproduce copyrighted material if, for example, you’re reviewing it, commenting on it, or parodying it, especially if you’re not providing a substitute that would affect the original’s sales. (It’s way more complicated than that. Ask any lawyer.) The Google Books case is important because it establishes Fair Use more firmly than ever, and clarifies that it applies more broadly than its opponents would like.

The legal historian Oren Bracha argues that Fair Use arose in the 19th Century as copyright was getting more inclusive and restrictive. Before that, copyright gave a printer an exclusive right to make copies, but otherwise was surprisingly permissive. For example, people were allowed to abridge a novel and publish it, or to translate it into a different language, all without getting the author’s permission or compensating him/her.

A (very) brief history of copyright

Over time, copyright was applied not just to what came off of a particular printer’s printing press but to the abstract idea of the work, so that the author could control every physical expression of that work. As the author’s grip was tightened, exemptions needed to be specified so that there could still be reasonable discussion of the work. Imagine if an author could refuse to let a reviewer cite a passage in a book if the review were critical. Imagine you had to ask permission to quote a sentence of an article in a report you were writing. Imagine you couldn’t parody Donald Trump without first having him review what you’re going to say.

So, Fair Use became a thing. In 1976, it was officially added to U.S. copyright law. That law says that there are four factors to be considered when deciding if a use is covered by Fair Use:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work [e.g., is it fiction? non-fiction?];

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

The purposes mentioned in #1 traditionally have included scholarship, political commentary, parody, and more.

Yes, those four factors are vague. Fair Use has always been vague. But that has the virtue of enabling it to be applied quite broadly. Of course, it also raises the risk that it will be interpreted very narrowly. The Google Books verdict establishes a precedent for applying it broadly in ways especially important to the continuing life and value of the Internet.

How the Google Books suit came about

The suit against Google Books was brought ten years ago by The Authors Guild, a professional organizations for writers. It claimed that Google’s digitizing and indexing of entire works, and then making available snippets from those books, violated copyright. Now, you may think that this is a stupid argument, and you’d be right. The courts agreed with you when it first heard the case, and then it decisively agreed with you when it again decided against The Authors Guild a couple of weeks ago.

The snippeting Google proposed in the suit was quite limited and very specific. As for whether it violates copyright to create an index of online materials, the Court seems to have no problem with that, even though to compile an index a search site first to has to make a copy of what it’s indexing. Although the copyright status of indexing apparently has not been definitively addressed, a 2006 case said that Google has the right to download and cache a copy of a site, which would seem to mean that it’s ok for them to create an index of it. (You are remembering that I am not a lawyer?)

Likewise, the courts have decided that Google isn’t violating copyright by making thumbnails of copyrighted images.

Updating copyright in the Google age

These are sensible decisions, but there were court cases about them because copyright law applies so poorly to the Net. Remember that the original and continuing core of copyright protects people from making entire copies of works without permission. Fine, but what happens every time you click on a link to a Web page protected by copyright? You’re downloading and displaying a complete copy. Since every Web page is copyrighted by default, under a mindlessly strict interpretation of copyright, your browser’s History list is evidence of massive copyright infringement. (The exception: The pages you’ve visited—including this one—that use a Creative Commons license to give readers permission to re-use them, while maintaining the author’s copyright.)

What could have happened

It’s not hard to imagine that the courts might have ruled that indexing a site infringes on its rights, and we’d be left to blindly stumble around the Net. Thankfully, the courts were wiser than that.

But this is exactly why we need decisions like the recent Google Books one. Because copyright is such a bad fit for the Net and because Fair Use is so vague, we need to nail down how copyright and Fair Use apply, and we need to do so in ways that permit the best uses of the Net to continue, despite the fear-based reaction of those who think they deserve to have complete and perpetual control over every use of every snippet of what they create.

In such a world, the Net would primarily be, like cable TV, content to be passively absorbed, as we watch our new culture and hopes for democracy suffocate under the weight of copyright.

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