While many folks have articulated excellent arguments against PIPA and SOPA, these arguments almost exclusively focus on problems with the potential new powers of rightsholders. Here, however, John addresses one of the older (and more problematic) areas of current copyright law, the doctrine of fair use.
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Dear Senators Wyden and Merkley & Congressman Blumenhauer:
I urge you to vote against any copyright-related bill that strengthens copyright law, including S. 968 (Protect IP Act or PIPA) and H.R. 3261 (Stop Online Piracy Act or SOPA), unless the bill also includes language to clarify and protect the doctrine of fair use.
While much attention has been focused on the challenges of digital piracy, which is indeed a problem worthy of discussion, copyright laws already strongly favor rightsholders and PIPA and SOPA will unnecessarily grant these rightsholders even more power. Although the concept of fair use is meant to protect free speech in the face of strong copyright protections, in practice it is a convoluted doctrine that is difficult (and expensive) to apply to the real-world.
Under our Constitution, copyright law must “promote the progress of science and useful arts.”1 It does so by granting to authors a limited monopoly on exploitation of copyrightable works. But as such a monopoly sits in tension with the free speech protections of the First Amendment, our courts created the doctrine of fair use to better balance these important Constitutional rights. While Congress eventually codified this doctrine, the language it used makes impossible the practical application of fair use.
Chief Judge of the United States Court of Appeals for the Ninth Circuit Alex Kozinski said that fair use is “a multi-factor test in which the factors are not clearly defined or weighted….”2 As such, it provides no direction nor certainty to copyright owners or to prospective users of copyrighted content. The end result, as copyright scholar Professor Lawrence Lessig has pointed out, is that “[f]air use means years of litigation. It’s nothing more than the right to hire a lawyer.”3 This same sentiment led Chief Judge Kozinski to declare that “when it comes to derivative works, fair-use doctrine is a red herring and we should just dump it.”4
With fair use so broken, any expansion of copyright law will only further unbalance the constitutional tension between the Copyright Clause and the First Amendment. As such, I urge you to require clarification and protection of fair use as a precondition to any congressional expansion of copyright law.
Sincerely,
John E. Grant, III
1:U.S. Constitution, Art. 1 Sec. 8.
2:Kozinski, Alex, What’s so Fair about Fair Use?, J. Copyr. Soc. of the USA, v. 46 no. 4, 514 (1999).
3:Jarvis, Jeff, PDF: Free the Debates, 5/18/2007 available at http://www.buzzmachine.com/2007/05/18/pdf-free-the-debates/
4:Kozinski at 515.
