Fair Use

The public domain has been under considerable attack in recent decades. The content industries have been working hard to clear away all possible competition that could persuade potential customers not to buy their newest wares. While the courts don't have to protect the public domain, they certainly cannot allow copyright protection for works already in the public domain.

The courts are noticing, however, that they must protect fair use in order to bring copyright law within alignment of the First Amendment. Fair use speech or expression is an important part of expressions protected by the First Amendment. What is fair use?

Fair use is the use of small excerpts of copyrighted works for criticism and commentary. Fair use allows the rest of us to guide and add to the narrative of our culture. The best example of fair use that I have ever seen is Jay Leno's Headlines on The Tonight Show. The Headlines segment aired on Monday nights and featured Leno showing a variety of newspaper ads and other printed media with errors. The errors are often grammatical, spelling and even photographic errors, all communicating an unintentional, yet hilarious message.

To my knowledge, neither Leno himself, nor NBC have ever been in litigation over Headlines, and I doubt that The Tonight Show has ever sought a signed release for any of the materials shown in Headlines. Yet, NBC/Universal is quite zealous in prosecution of anyone who would infringe upon their copyrights. NBC/Universal demonstrates their copyright maximalist posture by forcing visitors to the Headlines site to endure a commercial twice if the user selects "full screen" after viewing part of the video in the browser.

The Electronic Frontier Foundation has taken notice of an interesting turn in the courts. They have noticed that a really bad Supreme Court decision, Golan v. Holder, permitted the removal of millions of foreign works from the public domain, restoring their copyright protection, while also noticing the importance of fair use. The EFF notes that the court said that fair use protection is required for copyright laws to remain in alignment with the First Amendment protections for free speech.

The EFF noted fair use examples that would normally be illegal under the Digital Millennium Copyright Act, must be protected as free speech under the First Amendment, else, the DMCA would be unconstitutional. Such examples include software that allows the reading of DVDs despite the scrambling of that data in the format of the DVD. Such software was created to allow Linux users to view DVDs on their computers. This is known as the freedom to tinker and to share that knowledge with others.

The copyright industry has become known as "Big Content" for a reason. Big Content is incredibly focused on eliminating access to public domain works, and removal of all protections from even incidental violations of copyright. In the digital age, with so many ways to view copyrighted works, it is easy to incidentally violate copyrights without even knowing it has happened.

It is time for the media, the courts and Big Content, to recognize and remember that primary beneficiary of the copyright laws is not the artist. Not even by a long shot. It is the People. The copyright laws encourage production of culture with a temporary monopoly on the sale of that content. But when protection for that content expires, the public enjoys the right of reuse of the same content. It is the wider context of the First Amendment that should be considered when any provision of copyright is reviewed in litigation. In that wider context, the People come first.