Fair Use: A Virtual Anthem of Empowerment and Joy for Librarians and Educators [Harvard blog, Fair Use Week 2015]
Originally published at Harvard’s Fair Use Week blog, Feb. 25, 2015.
Fair Use : A Virtual Anthem of Empowerment and Joy for Librarians and Educators
I WANNA SEE YOU BE BRAVE
The American Library Association recently passed an interpretation of its Code of Ethics to clear up confusions about the line that says librarians “respect intellectual property rights.” This phrase was taken by some to mean that librarians must respect the rights of copyright owners, or even police users on behalf of copyright owners.
This was wrong. ALA’s new Copyright Interpretation clarified the line because copyright isn’t just a one-way street — it’s a carefully calibrated balance of rights of owners and users, intended to “promote the Progress of Science and useful Arts.” (US Constitution, Art. 1, s.8, cl.8.)
Unfortunately, we see the same error over and over again in copyright. Librarians try to do the right thing; try to follow what they have been told is “the law” — but it’s a law that ignores the other half of copyright law: users’ rights.
In fact, what some portray as a cautious or conservative approach turns out to be a radical re-invention of copyright as an absolutist regime, unlike virtually any other legal regime. We see the results of this misguided “conservatism” all too often, and it can lead to real error when this approach conflicts with the fundamental mission of an institution. My own university fell into this trap recently, when it interpreted a government statute to block admission of Iranian students to specific graduate programs. That this policy would pose a conflict with the University’s greater mission of promoting academic freedom and inquiry was, unfortunately, not noticed until after the policy was announced and met with widespread criticism, both within the University and without. Administrators belatedly recognized the mistake in the unduly cautious and conservative approach to that statute, and adjusted course.
Assessing any law solely through the lens of risk assessment can create such conflicts. A better understanding of the need to balance mission risk with legal risk could help avoid this problem altogether. As Brandon Butler and other colleagues have noted, we simply cannot avoid all risk, if we hope to function at all. For example, any time you invite someone onto your property, you risk a slip-and-fall lawsuit. But a University must invite people onto its property in order to teach, conduct research, and simply operate. So we must, all the time, consider potential legal risk, but also mission risk — our duty to fulfill our own mission, and the risk of not fulfilling it if we act out of fear. In fact, whenever I teach law, I am careful to distinguish different levels of ethical and prudential assessment: the legal, the professional, the institutional, and the personal.
So here’s where I’m going to channel Sara Bareilles: I wanna see you be brave.
I’M ALL ABOUT FAIR USE, NO FUD.
In copyright, we might be tempted to take an institutionally conservative approach. “Damages in copyright are potentially so large! Fair use is so confusing! It’s hard for ordinary people to understand! Our licensing librarian thinks fair use is risky! There are so many technicalities!”
Fair use is none of these things. Copyright law doesn’t just protect fair use — it charges librarians and educators with the responsibility to use it. So let’s clear away some FUD:
- MYTH: Fair use is too hard for people to understand. Better be safe and not use it, or get permission.FACT: Fair use is founded on the simplest and most universal of concepts — fairness. If you want to teach someone fair use, start with “fairness” — a concept that even primates and elementary school children grasp, and the central concept that judges rely on in assessing fair use. Once you have a sense of whether the use is fair, go through the four factors to check your common sense assessment.
- MYTH: Damages are too high and risky! Better be safe and not rely on fair use, or get permission.FACT: No they’re not! Well, yes they are — statutory damages are indeed potentially ruinous, but not for educators and librarians who are making good faith assessments of fair use. Section 504(c)(2) eliminates entirely statutory damages for reproductions made in good faith by librarians and educators.And, frankly, the risk is low: Very few plaintiffs really want to bring expensive copyright litigation, especially against educators where their damages are limited by Section 504 or eliminated altogether by sovereign immunity. (And it doesn’t make the plaintiffs look good.) Most complainants will be willing to settle in such circumstances. So you can at least start by being brave, even if you quickly crumble!
- MYTH: Fair use is too uncertain! The legal precedent doesn’t help us.FACT: This myth falsely suggests that the case law on fair use is negative. Actually, the case law is remarkably positive, and it’s especially heartening for transformative uses and for public purposes, like education and disability access. Courts have been strongly supportive of fair uses in recent years, recognizing that as copyright’s scope, term, and penalties grow, so too must user-protective doctrines like fair use. The “Best Practices in Fair Use” project has helped empower users to feel confident about relying on fair use. And flexible doctrines like fair use are influencing lawmakers around the world, and even being adopted outright in some countries.
- MYTH: Fair use excuses behavior that is unseemly or unethical. It’s more ethical to simply ask permission from the rights holder.FACT: Librarians and educators are not engaging in civil disobedience when they rely on fair use, or even taking advantage of some kind of morally ambiguous “technicality” in law. The Copyright Act encourages librarians and educators to rely on fair use. This choice is deliberate: Congress establishes statutory damages, fee shifting provisions (awarding attorney’s fees to the prevailing parties in copyright infringement), and safe harbors precisely in order to encourage and discourage certain behaviors. The sky high statutory damages in copyright law are not just a handout to rightsholder industries — they’re a signal that Congress wants rightsholders to aggressively enforce their own copyrights.
Similarly, the numerous special protections for libraries and nonprofit educational institutions are a signal to us. We get special rights throughout the Copyright Act — Sections 107, 108, 109, 110 … heck, even our college radio stations get special discounted royalty rates. Our uses are specially listed in Section 107 as examples of fair uses: “teaching (including multiple copies for fair use)”, “scholarship”, “research”, and listed again in the first factor (“nonprofit educational use”). And Section 504(c)(2) is a classic example of Congress immunizing a party from risk in order to encourage them to take full advantage of their statutory rights.
What is this plethora of copyright goodness this telling us? By making good faith reliance on fair use virtually risk-free for educators and librarians, I’m pretty sure we’re being told: You can rely on fair use. Really. It’s okay. It’s there for you.
OH, WON’T YOU TEACH WITH ME
The goal of copyright is “promote the Progress of Science and useful Arts.” Librarians and educators have special roles in the dissemination of information, so there’s good reason for our uses to be specially privileged in the copyright scheme. But librarians and educators don’t just have special rights under copyright and fair use — we have special obligations, too. Congress isn’t just giving away these special rights for free.
So what’s the catch? What’s the quo in this quid pro quo? The answer: We’re supposed to educate our users. In Section 108, the Higher Education Opportunity Act — over and over again we’re told to educate our users. Note that we’re not told to police our users, because we’re not in the best position to assess whether their uses are fair (and, because, intellectual freedom). But to educate them. So that’s our job. Education.
There you have it: It’s safe and easy to rely on fair use. It’s our job to teach about fair use, and it’s actually our statutory duty to rely on fair use. And, it’s our duty in the broadest sense of fulfilling our institutional missions, copyright’s general purpose, and librarianship’s embrace of intellectual freedom.
Really, there’s no reason not to be a fair use activist.
Fair use: It makes us all happy.
“It might seem crazy, what I’m about to say
Fair use is here, it won’t go away.
Here come bad news, talking this and that.
Yeah, give me all you got; don’t hold back.
Yeah, well, I should probably warn you, I’ll be just fine.
Yeah, no offense to you, don’t waste your time.
Because I’m happy …”
Happy Fair Use Week, y’all.
Thanks to Charlotte Roh, Kyle Courtney, and Brandy Karl for editing and comment.
 Quoting from Sara Bareilles, “Brave” (2013).
 I mean “conservative” here in the sense of moderator or cautious, resistant to change; not politically conservative.
 Even property law, which is often depicted as being absolute, has numerous third-party protective doctrines. Kevin Smith wrote a helpful blogpost about this last year, “Why is copyright different?”, March 4, 2013..
 My apologies — I can’t remember who I first heard make this very helpful analogy!
 Transforming “I’m all about that bass, no treble”, from Meghan Trainor, “All About That Bass” (2014).
 “FUD” is “fear, uncertainty, and doubt.”
 Rightsholders have lately taken to concern trolling librarians and educators in copyright hearings on Capitol Hill: “Fair use is so difficult for librarians. We can set up a nice licensing scheme where they pay us and don’t have to worry their little heads about fair use.” (My paraphrase)
 Yes, even primates! See Sean Markey, “Monkeys Show Sense of Fairness, Study Says,” National Geographic News, Sept. 17, 2003. If a million monkeys typed on computers, would they ever come up with something as crazy as 17 USC 112? As for elementary age children — my 6-year-old’s arguments about fairness ring in my ears every day.
The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was:
(i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords[.]
 See Pat Aufderheide and Peter Jaszi, 2011, Reclaiming Fair Use: How to Put Balance Back in Copyright.
 American University, Center for Media & Social Impact, “Best Practices in Fair Use”.
 Jonathan Band and Jonathan Gerafi, 2013, “The Fair Use / Fair Dealing Handbook”. The Jonathans surveyed the international landscape for fair use and similarly flexible approaches to copyright exceptions in 2013.
 Jim Neal, “Fair Use Is Not Civil Disobedience: Rethinking the Copyright Wars and the Role of the Academic Library”, ACRL 2011.
17 USC 118, “Use of certain works in connection with noncommercial broadcasting”. See the Copyright Royalty Board for the current 2012-2015 rates for college radio, and for the proceedings for upcoming rates. http://www.loc.gov/crb/
 Transforming lyrics from “Stay With Me”, from Sam Smith (2014).
 Minor transformation of Pharrell Williams, “Happy” (2014).
Laura Quilter is the Copyright and Information Policy Librarian at the University of Massachusetts, Amherst, Libraries. Laura has a M.S. in Library and Information Science (University of Kentucky, 1993) and a J.D. (UC Berkeley School of Law, 2003). She has taught as an adjunct professor at Simmons College, and at the Samuelson Law, Technology and Public Policy Clinic at the UC Berkeley School of Law. She has consulted with libraries and non-profits on copyright, privacy, and other technology law concerns. She has also worked as a librarian and assistant professor at the University of Illinois at Chicago, and has lectured and taught courses to a wide variety of audiences. Laura’s research interests include copyright, tensions within teaching and scholarly communication, and more broadly, human rights concerns within information law and policy, including privacy, access to knowledge, and intellectual freedom.