The report (click for PDF), released Monday by a pair of free-expression advocates at New York University Law School's Brennan Center for Justice, argues that so-called "fair use" rights are under attack. It suggests six major steps for change, including reducing penalties for infringement and making a greater number of pro bono lawyers available to defend alleged fair users.
Fair use is a longstanding principle of copyright law. Its aim is to allow people to copy or quote copyright works without the permission of their authors, provided that they do so, in the words of the statute, "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." The law lays out a four-pronged approach for determining--if legal challenges against the work's use occur--whether the use was, in fact, "fair."
But beyond that, "nobody really knows what it is, because in fact there is no precise, easy definition," said Marjorie Heins, coordinator of the Brennan Center's Free Expression Policy Project and a co-author of the report, which was titled, "Will Fair Use Survive?"
Research for the report, which began in late 2004, involved, among other tasks, surveying nearly 300 stakeholders and perusing letters dispatched to those accused of violating copyright law. In the process, Heins said she encountered a vast amount of confusion over fair-use principles and a high volume of what she considered irrational infringement claims.
One case described involved a man who in 1997 launched a personal Web site at Tatooine.com, named for the fictional planet in the first "Star Wars" flick. Three years later, the site's owner received a cease-and-desist letter from LucasFilm, ordering him to hand over the site. He said he never posted any "Star Wars"-related content, but instead, such personal-site material as family photos, poetry and fiction.
Worried that he couldn't afford a legal fight, the site's owner ultimately reached a confidential agreement with the company, which now owns the URL and redirects it to the official "Star Wars" site. (Ironically, "Star Wars" creator George Lucas borrowed the name of Tatooine from a city in Tunisia called Tataouine, located near a desert where some scenes were filmed.)
A similar "chilling effect," the report said, is taking shape through so-called takedown notices, a tactic in which copyright and trademark owners send letters to Internet service providers pressuring them to remove sites the owners determined to be infringing.
Such notices are rooted in a provision of the Digital Millennium Copyright Act of 1998 that frees ISPs and search engines from copyright infringement liability if they "expeditiously" take down anything a copyright owner claims to be in violation of the law. The entire process, from letter-sending to site takedown, can occur without any formal legal proceedings.
Victims of the takedown notices have recourse. They can contest the allegations with a counternotice, but the paperwork is often complicated, Heins said. The report recommended creating Web sites that clarify not only appropriate fair uses but offer sample retorts to questionable takedown notices.
Over the past few years, fair use has been a hot topic in Congress, where politicians have voiced reluctance to make changes to the law. A few politicians have proposed altering existing rules so that people could carry out fair-use activities andfor, say, DVDs and audio files.
But a larger contingentthat such a policy would open the floodgates for piracy--a concern that has received backing from the entertainment industry.
For example, the president of the Entertainment Software Association, which represents the video game industry, told members of Congress at a hearing last month that his members think "current law properly balances consumers' diverse interests in using copyrighted works."
Heins said she finds current copyright infringement penalties "Draconian," but noted that the bulk of suggestions in the recent report don't even involve direct lobbying, perhaps in part because of Congress's vocal resistance to change.
"The more people in a community assert fair use, the more it will be recognized and the more difficult it will be for those who want to control every last quote or every clip used in a film," Heins said. "I think a lot of organizing and educating need to be done, and a lot of it will be sort of grassroots."