I haven't written in quite a while, though for good reason. (Praise be to Lord BarBri!)
I recently wrote a piece on why and how the fair use doctrine, as it is currently applied to emerging forms of creative expression, should be realigned with today's digital realities: A New Theory of Fair Use, Re-conceptualized and Updated for Today's Information Society (pdf).
The following is an excerpt of the Introduction (with minor changes made in formatting):
Copyright law and the First Amendment right to free speech are oftentimes at conceptual odds with each other. As legal scholar Paul Goldstein puts it, “[C]opyright persists in its potential for conflict with the first amendment.”[1] The former--a government creation--effectuates the idea that ownership of a work is exclusively conferred onto the creator so as to protect her work from unauthorized use by others[2], whereas the latter curtails government restrictions on people’s constitutionally guaranteed right to free speech and expression.[3]
Even so, copyright and free speech are not meant to exist in absolute disharmony. Crucially, the U.S. Constitution contains clauses on both copyright and free speech, implying that the Framers intended for copyright to not exist without limit. The Constitution’s inclusion of both clauses also lends credence to the notion that, within a certain range of conditions, copyright[4] and the First Amendment actually further the same democratic goal: safeguarding the free and widespread dissemination of expression and ideas. In search of that point of optimality, several mechanisms have been developed in copyright law that function to balance the preservation of free-speech values with the enforcement of creators’ copyright interest in their works. This essay focuses on the fair use doctrine specifically and the extent to which it is effective in harmonizing freedom of expression and copyright.
The way courts apply fair use today is increasingly outmoded. As digital technologies have fundamentally changed the way people speak and interact, the fulcrum between freedom of expression and its counterweight, copyright enforcement, has likewise shifted. Today’s World Wide Web has made possible the seamless distribution, circulation and exchange of expressive works from person to person, and in turn, the creation of many novel, modern-day channels of expression. In particular, the popularity of collage and appropriation art forms such as mashups and internet “memes” has risen to viral proportions.[5] However, many such collage and appropriation works do not fall within traditional notions of fair use and, as a result, undergo crude judicial analysis. The resulting uncertainty over the reliability of fair use as a balancing tool, then, tends to chill the dissemination of certain types of expression, even though many of them are considered by society as staples of cultural communication in the digital era. Put differently: The overall effect of a shaky fair use standard is that the shared goal of copyright and the First Amendment strays further away from actualization.
Therefore, the current state of jurisprudential treatment of fair use as a balancing mechanism warrants serious reexamination. Rather than adhere to arcane distinctions, fair use should mirror the public normative perception of where the line between speech and copyright exists. As such, this essay proposes and supports the following recommendation for reform: Embracing an expansive, Cariou-like conception of fair use that subsumes online-era transformative appropriation/adaptive uses of existing works--in combination with shifting the burden of proof from the fair user to the copyright holder--will reinstate fair use as an effective balancing mechanism between free speech and copyright values. Doing so will realign the fair use standard not only with today’s technological realities but also critical democratic theories of expression.
[1] Paul Goldstein, Copyright and the First Amendment, 70 COLUM. L. Rev. 983, 984 (1970).
[2] U.S. CONST. amend. I.
[3] Copyright law and enforcement draw their persuasive thrust from Article I, § 8, cl. 8 of the United States Constitution. It states, in pertinent part, that Congress is empowered to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. CONST. Art. I, § 8, cl. 8.
[4] In other words: the Copyright Clause, which is implemented by the Copyright Act of 1976.
[5] See Kim Zetter, “Humans Are Just Machines For Propagating Memes”, Wired (February 29, 2008) (“A meme can be a song or snippet of a song, a dance, an urban legend, an expression or behavior, a product brand or even a religion.”).
Enjoy!