[A2k] William Patry's blog: Patrick Ross and Fair Use

[Manon Ress]

This is a great post on fair use by a real expert!

http://williampatry.blogspot.com/2008/07/patrick-ross-and-fair-use.html

Patrick Ross and Fair Use

The Yiddish/Aramaic word =93chutzpah=94 is well known, and has been
defined variously as gall, audacity, insolence, and impertinence.
Patrick Ross, head of the cartoonish Copyright Alliance, seems to have
chutzpah in abundance, as seen on a blog post yesterday criticizing
The Center for Social Media at American University, for its release of
a =93Code of Best Practices in Fair Use for Online Video.=94 The best
practices are a =93Future of Public Media Project,=94 funded by the Ford
Foundation, a fact Mr. Ross omits.

Mr. Ross is not a lawyer, but formerly was with the right wing
Progress and Freedom Foundation, which usually acts as a mouthpiece
for corporate copyright owners. I have no idea whether or where Mr.
Ross attempts to learn about copyright law, much less fair use. For my
part, I have been a practicing copyright lawyer for 25 years, and have
been studying fair use even longer, beginning in law school. In 1985,
I wrote my first book on copyright, which was also the first book
devoted just to fair use. The treatise=92s first citation was by the
Supreme Court in the Harper & Row case, issued shortly after the
treatise came out. Subsequently, that treatise has been cited many
more times by other courts. I have testified before a joint session of
the IP subcommittees of Congress on fair use, worked on amendments to
Section 107 as a Congressional staffer, argued fair use cases in the
courts of appeals and district courts, written an article about fair
use with Judge Posner, advised many clients about it, and discussed
the issue with the European Commission, and many representatives of
foreign governments. I am unaware of any qualifications Mr. Ross has
to talk about fair use.

Nor is Mr. Ross an educator. Yet, regarding both fair use and
education, in his criticism of the Center=92s Best Practices, he speaks
as if he knows more than those who are copyright lawyers and educators
(and some who are both), beginning with a pompous, purported
correction about the nature of fair use, scolding the Center for
daring to utter the term =93right=94 in the same sentence as fair use. I
describe fair use as a privilege because in a court case entitlement
to it has to be proved, and in this sense it is also an affirmative
defense. But the status of fair use as an affirmative defense can be
overstated. Technically, it means only that an initial burden of
producing evidence lies with defendant. The ultimate burden of going
forward always lies with plaintiff copyright owner. Even the weight of
the burden of proof can vary depending on what the particular
affirmative defense is. In the case of fair use, the principle is an
extremely important one, essential to the constitutional goal of
copyright, and without which copyright would probably be
unconstitutional. The best expression of this is in Judge Leval=92s
seminal article, =93Toward a Fair Use Standard,=94 103 Harv. L. Rev. 1105,
1110 (1990): =93Fair use should not be considered a bizarre,
occasionally tolerated departure from the grand conception of the
copyright design.=94

To me that is the key: fair use is a part of the design of copyright,
it is not an exception to it, and it is not to be applied begrudgingly
or narrowly, but liberally. Yes, there is an initial obligation of
defendant=92s part to show that application of the defense in the
particular case is not b.s., but once you do that, the playing field
is not only level, but both sides of the equation have very important
constitutional heft to them. Viewed this way, the question of whether
fair use is a right or not is a waste of time. But lacking any
understanding of law (does he also think he knows more about fair use
than Judge Leval?), Mr. Ross chose to lead off his blog with precisely
such a waste of time, delivered in a schoolmarmish manner, an odd
conceit since he is not an educator but is criticizing educators.


Mr. Ross was just warming up to his main them, namely that the Center
is engaging in =93dangerous=94 activities, whereas the Copyright Alliance
is engaging in the copyright equivalent of safe sex. Here is what the
Center says about its =93Best Practices=94:

This document is a code of best practices that helps creators, online
providers, copyright holders, and others interested in the making of
online video interpret the copyright doctrine of fair use. Fair use is
the right to use copyrighted material without permission or payment
under some circumstances.

This is a guide to current acceptable practices, drawing on the actual
activities of creators, as discussed among other places in the study
Recut, Reframe, Recycle: Quoting Copyrighted Material in User-
Generated Video and backed by the judgment of a national panel of
experts. It also draws, by way of analogy, upon the professional
judgment and experience of documentary filmmakers, whose own code of
best practices has been recognized throughout the film and television
businesses.

WHAT THIS ISN=92T

This code of best practices does not tell you the limits of fair use
rights.

The Center=92s Best Practices are not, therefore, legal advice, but
instead an attempt to list some of the actual practices of those in
the field, including, and I quote because Mr. Ross omits this, =93the
actual activities of creators ,=94 that is, those whose Mr. Ross=92s
organization purports to speak for but doesn't. Here is what Mr. Ross
said on the Copyright Alliance=92s blog yesterday about the Best
Practices:

They have published a Best Practices Guide for fair use in online
video. This is a dangerous effort. We at the Copyright Alliance
support education on fair use and have information on our site. But
our information is intentionally broad; we do not want to be in the
position of giving legal advice to specific end-users of copyrighted
works.
But that is precisely what the best practices guide writers run the
risk of doing, although some review of the site suggests that there
isn=92t much =93there=94 there. What is implied suggests a significant
expansion of the current established thinking of fair use, going far
beyond legal precedent. Lord help the individual who follows their
guidance and finds out that just because AU says it=92s fair use doesn=92t
mean it=92s fair use.

Let=92s see what this means: a guy who isn=92t a lawyer, much less a
copyright lawyer, thinks it is a dangerous effort for copyright
lawyers, educators, and those who deal with real world fair use
problems on a daily basis to address some of the common problems
presented, not as legal advice, but as =93best practices.=94 The safe sex
approach, according to Mr. Ross is the type of education that Mr.
Patrick=92s group =96 a front for large corporate copyright owners =96
gives, namely always ask permission. I have previously blogged about
the Copyright Alliances wildly one-sided view of copyright, so I won=92t
repeat it here. I don=92t know what kind of a review Mr. Patrick Ross
gave to the Center=92s best practices, but I doubt it was either
extensive or meaningful given the lack of a single example from the
best practices themselves. He admits he only gave the Best Practices
=93some review,=94 but since he only refers to a video montage and not the
practices themselves, he may have engaged in the equivalent of only
reading the cover of a book.

I can say, based on my over 25 years of experience with fair use, over
25 years more than Mr. Ross has, that the site doesn=92t =93imply=94 =93a
significant expansion of the current established thinking of fair use,
going far beyond legal precedent,=94 as he states. Mr. Ross=92s purpose is
not to engage in a constructive debate about specific examples and
whether those examples are appropriately a fair use, something
reasonable minds might disagree on. Rather, his purpose is to silence
those who try to provide responsible, thoughtful guidance to those on
the ground, and ultimately to silence those who dare to suggest there
can be fair use at all.
Posted by William Patry at 10:20 AM


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Manon Ress
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