Fair is fair… or is it?
Corpus Juris talks Fair Use with Marybeth Peters, the Register of Copyrights in the US. It’s not about convenience, but content, and she believes that groups like the EFF are “poisoning the well” when it comes to copyright and the DMCA.
The Sony Betamax Supreme Court decision was one of the most important “fair use” decisions of the last 25 years, but it’s been a constant source of frustration for Marybeth Peters, the Register of Copyrights in the US since 1994. As head of the Copyright Office, Peters is in charge of the triennial DMCA anticircumvention review process. And every three years, her office sees the Sony case used as the basis for the most popular requested exemption: DVD ripping.
Each time the Copyright Office deals with the issue, consumer groups contend that fair use rights to use the material on DVDs are being violated by access controls, and they want an exemption in order to back up discs or to use video clips in noninfringing ways. After all, didn’t the Sony case put an official blessing on all recording equipment that had substantial noninfringing uses? Doesn’t this mean that consumers have a right to use DVD rippers and that an anticircumvention exception should therefore be made for all DVDs? The EFF certainly thought so, arguing as much at the first triennial rulemaking back in 2000.
But when I spoke with Peters about fair use, she pointed out that the Sony decision is in fact a narrow one and that fair use itself is often ambiguous unless defined by a judge. The Court’s ruling in the Sony case was limited to “free, over-the-air television for time-shifting,” she tells me. “It is not space-shifting; it’s not anything beyond that. It’s not off cable, it’s not off video-on-demand, and yet if you talk to most consumers, they think that anything they do in the home that comes through their television set is fair use.”
“That becomes a consumer expectation that you hear about that they want enabled,” she continues, “and I don’t disagree with that; that’s what the market is demanding, and that’s what the market should provide, but don’t call it fair use.”
“I don’t want to say it’s a crapshoot”
Her comment points out that fair use in the US can be a vague concept. Section 107 of the Copyright Act allows for the fair use of material “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” but speaks in broad terms rather than specific instances. Fair use can extend beyond these listed purposes (note the “such as” statement in the law), but to qualify as “fair,” a use has to pass the famous four-part test, which considers the following factors:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
What this means in practice is that people cannotknow if something is fair use without testing their theory in front of a judge. This has happened on plenty of occasions—like the Sony/Universal case that opened the door to legal VHS recordings from TV broadcasts—but these rulings are generally quite narrow, applying only to the specific circumstances of the case. “Once a court has actually handed down a decision with regard to specific facts,” Peters says, “if you fall within those facts, you’re safe, but once you start wandering away from those facts then—I don’t want to say it’s a crapshoot—but it’s not clear.”
In the minds of many Americans, though, “fair use” means a whole host of things that are not contained in the Copyright Act or outlined in a judicial decision. As Peters puts it, “‘fair use’ has become a shortcut for what ‘I think the balance should be as I look at the copyright law.’”
Take DVD ripping as an example. As noted above, it’s an issue that Peters hears about without fail every three years as users seek a DMCA exemption to the anticircumvention protections that extend to DVDs. Why has the Copyright Office rejected the proposed exemption at each triennial rulemaking to date? In her words, it’s because the widely-hacked CSS encryption on DVDs does not actually prevent fair use at all, and those who think otherwise don’t understand exactly what rights fair use grants them.
I want my fully-backed-up, playable-on-Linux DVDs!
According to Peters, the exemptions only exist to give users access to material that is lawful for them to use and that they cannot get in any other way. While the first part of that test does apply to backing up DVDs or watching them under Linux, the second part generally does not. People don’t really just want fair use, Peters says, they want to “crack a code in order to make fair use of content, but the content, for the most part, they can get in an unencrypted format. But they don’t really want that.”
Much of the material on DVDs can be obtained from other sources—VHS tapes, for instance. Sure, the quality isn’t as good, and sure, it’s inconvenient, but Peters doesn’t see that these are legitimate arguments in favor of crafting a new exemption. “There’s a Second Circuit Court decision that says that convenience is not a reason to do it,” she points out. “Nothing says that fair use says you get to do it in the most convenient form, and the one that is preferable to you. Fair use is really about content, and you shouldn’t be hacking through things to get the most convenient format.”
She also rejected arguments to the contrary put forth by the EFF during the triennial rulemakings in 2000 and 2003 and said that the EFF’s assumptions in those documents were wrongheaded. “Any copyright owner should have their hair standing on end,” she said during a recent conference on DRM, adding that the EFF was “poisoning the well” with some of its arguments by seeking to restrict the applicability of copyright and the DMCA.
The EFF’s senior staff attorney, Fred von Lohmann, not surprisingly takes issue with this characterization. “I think these copyright owners have far more to fear from the Copyright Office than from EFF,” he tells me, pointing out that anyone who composes machinima or creates YouTube videos is also a copyright holder.
“Moreover, copyright law is not concerned solely with enriching copyright owners but rather is enacted for the benefit of the public, which is to say, the fans,” he adds. “Far from ‘poisoning the well’ for fans, [the] EFF is virtually the only voice speaking up on their behalf in copyright debates. The Copyright Office, disappointingly, often views itself [as] an advocate for copyright owners rather than for the public at large.”
After coming to this conclusion in 2005, the EFF declared the triennial rulemaking (PDF) “fundamentally unable to protect the interests of today’s digital media consumers” and has stopped participating in the process.
Ambiguity: it’s a good thing
von Lohmann agrees with Peters about fair use: it’s ambiguous and defined only in retrospect by the courts. He characterizes this as a great strength of the fair use law since fair use becomes flexible enough to encompass all sorts of new uses and technologies. A more rigid law would have been clearer but of much less utility.
This ambiguity is “not a bug, it’s a feature,” he says. “Marybeth Peters is correct that the Sony Betamax case does not clearly establish that space-shifting is a fair use. Neither does it say that it’snot a fair use. That’s a question for a court to answer when the case comes up.”
Peters, despite heading the Copyright Office, does not define fair use. As both she and von Lohmann pointed out, her opinions on the matter are those of an expert, but they don’t carry the force of law. “It’s not Marybeth Peters’ job to tell us what is a fair use, any more than it is mine,” says von Lohmann. “The law leaves that decision to the courts.”
It seems quite likely, based on past court decisions, that DVD ripping would have been found legal in a court, apart from the pesky issue of DRM. Once the DMCA entered the picture and CSS found a place in the DVD spec, the DVD licensing consortium gained a way to prevent all sorts of uses that might otherwise have been decreed as “fair.” And so long as it’s possible to get access to the material in other ways, Peters and others in the Copyright Office have no plans to carve out an exemption. (The recent Kaleidescape caseallowed for some DVD ripping but only covered a commercial media server that retained the CSS encryption and had a license from the DVD CCA.)
Fortunately for consumers (otherwise known as “everyone not in the movie business”), Peters and the studios both know that a backlash has been building on this issue. Regardless of the technicalities of fair use and the DMCA, people have their own sense of what is fair and reasonable and get frustrated when technology imposes additional limits. Peters says that she “believes in DRM” because it keeps the US away from a levy system but says that the market should really work these issues out. And Dan Glickman, head of the MPAA, said in a recent speech that the studios soon hope to bring users a way tolegally rip DVDs, though he was maddeningly short on details (and appeared to endorse a DRM-based solution of some sort).
Unless DMCA reform is passed in Congress, studios and others will continue to use DRM as a way to circumvent the fair use issue, replacing the freedom that the ambiguous law provides with something much more controlled: technology that allows users to do only what rights-holders allow them to do. This undermines a basic point of fair use, which is that permission is not required. The argument that convenience doesn’t matter here may well be true from a legal perspective, but it matters on a daily basis to those who want to do something that would otherwise be legal but don’t have the time, energy, and tools to track down and digitize lower-quality VHS recordings, for instance.
While fair use remains ambiguous and the four-part test can seem esoteric, it has served the US well for decades. Unfortunately, technology now provides a way to enforce limitations that no judge ever would. But the use of such technology is not inevitable; as Peters says, hopefully the market will sort it all out. Until then, try not to scratch those DVDs.