Net/net on Fair Use

What’s the net/net of all these recent copyright cases involving fair use?  That “transformative work” will be incorporated into the factors that make up section 107, Fair Use, of the Copyright Law when next it is revised.  For innovation in technology, the economy and culture, that is a good thing.  It is something of an antidote to the heavy weight of incentive that currently burdens the scales on the content holder’s side.

Textbook publishers are taking this hit harder than the movie or music industry.  What a lucrative market they have to revise!   The days of $1,000-1,500 a semester in textbook expenses is still among us, but some developments are chipping away at its sides, e-texts for example.  Their counterbalance: analytics.  Higher education has to keep a keen eye on this issue since in addition to FERPA there is the concern that the implicit “selling” of information that should be ours not theirs.  So while no college or university with which I am familiar would sell their alumni lists, for example, we want to be sure that we are not inadvertently selling information complicated by the myriad ways in which technology in the hands of market drivers compromises privacy or our missions.   In the meantime, these fair use cases that they are bringing against HathiTrust, Georgia State and Google are turning out to be a side show.  Fair use is winning every time.  Publishers would do well to take a leaf out of the entertainment industry's play book.

Movie and music industry tomes could be written.  Suffice two observations today.  The music industry, the canary in the business-model-disrupted-by-technology-coal-mine, shows signs of composure these days.  It won a substantial gain on higher education, as we all know, in the HEOA of 2008; going forward I don’t hear word one about eliminating those provisions in the latest revision and that must make them happy.  They have worked hard on a trade agreement with the telecoms, but don’t seem to have anything in writing.  Does make me wonder about the “net neutrality” issue, however; how do consumers know whether or how the telecoms are regulating bandwidth in a way that has implications for content?   The new commissioner of the F.C.C. would do well to ask that question of the industry.

But the most important factor in their relative complacency is that the business model has changed to their benefit.  Please, let us all remember, the days when Cary Sherman tried to tell consumers that getting the copyrights organized to distribute music on-line was too complicated.  Thank you Steve Jobs for cracking that nut.  Remunerative legal alternatives have content owners smiling.

The observation regarding the movie industry has a more nefarious edge.   Buried in most video transmission technologies is DRM to block content and/or high definition quality that does not have the MPAA certified key.  It is, for the most part, effective against infringement of MPAA video movies.  But not all use cases involve MPAA movies!  Higher education, for example, might have a use case or two, let’s say distance learning?  Ever try learning surgery through video transmission that is in standard definition?  Would you want a radiologist to be reading your CAT or MRI or mammography scan on standard definition for cancer, stroke or aneurism because their transmission technology lacks the special key?  In the law, we call such a sweep overbroad, but this "fix" has not gone through legal channels, just technical ones.  Who controls west coast code?  Not you or I.  Evidently higher education didn’t even get a chance to opine.  That is a very signifiant loss to all of United States society in the name of protecting the U.S. movie industries.  (For more information, see this link.)

Fair use jurisprudence is the bright spot on the horizon of copyright law reform.  But as a judicial matter, it is slow, expensive and far too limited to right the balance between innovation and incentive.  That imbalance also has concrete deleterious outcomes for higher education.  In other words, we have a long row yet to hoe.  And higher education has lots of reasons directly related to its missions to take the lead for us all.