Free Speech Institutions and Fair Use: A New Agenda for Copyright Reform
65 Pages Posted: 13 Jun 2016 Last revised: 16 Mar 2019
Date Written: June 1, 2016
This article analyzes copyright law as a growing burden on free speech institutions such as newspapers, television stations, Web sites, and software platforms. Free speech institutions help us read, watch, access, write, perform, display, transform what has been written, and publish what is newly or previously written or transformed. Yet copyright law potentially outlaws the unauthorized reading, watching, performing, transforming, or publishing of existing work. Fair use shields free speech institutions from some claims of infringement based on their mediating role.
Emerging copyright norms could harm the freedom and diversity of the Internet, however. Associations of media and Internet corporations have become prolific sources of proposed norms governing Internet speech and communication. They asked the Obama administration to pressure Web sites such as YouTube to agree to a series of Principles for User-Generated Content Services, which would delete (or filter) quotations of media content in audio or audiovisual form, often without regard to fair use. An Open Book Alliance filed briefs in federal court arguing that Google should be restricted from contracting with publishers to create digital libraries of books. The Associated Press and Media Bloggers Association proposed that fair use be restricted online in ways that are contrary to established custom in print and on television, as well as online. Media corporations requested a National Broadband Plan that endorsed filtering out copyrighted material.
This article explores how negotiations between copyright industry trade associations and online services present a risk to free speech institutions. Specifically, the norms advanced by the associations are often framed so as to preserve revenue streams at expense of Internet users’ freedom of expression. Industry groups frequently characterize as “piracy” or a “threat” what courts or legislators would regard as First-Amendment protected, transformative fair use, outside the scope of copyright or trademark rights, or free competition under antitrust law. Moreover, such negotiations may increase the price of information works while reducing the quality of Internet services, including their interactivity and accessibility to the poor and those on fixed incomes. This article therefore describes the problem of non-price-related restraints on upstart Internet and social media companies, such as a requirement to filter out quotations. Such restraints do not burden incumbents, which typically do not confront prepublication filtering of their content.
Antitrust cases and constitutional doctrine are slow to evolve, however. For this reason, the article calls for reform of the fair use privilege of free speech institutions in three key areas: burden of proof, due process, and liability standards. The reforms are intended to serve core constitutional values: liberty of expression, communicative privacy, separation of powers, and the rule of law. Other scholars have proposed reforms to the fair use doctrine that alter procedures, focus on quantitative thresholds of use, or protect a subset of free speech institutions’ activity. This article proposes reforming the statute to shield fair users from liability if they do not harm the copyright holder, and to fix evidentiary problems which they face in proving a lack of harm. The proposed reforms will amend the fair use statute to prevent free speech institutions from confronting an impossible standard, i.e. a burden of disproving potential harm in aggregate.
Keywords: K11, K21, K42, O33, O34, F02
JEL Classification: Fair Use, Free Speech, First Amendment, Press, Freedom of Speech, Internet, Search Engines, User-Gen
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