Misrepresenting Fair Use
It happened again: another online writer’s stuff got swiped and reused in another venue, without so much as a hey-do-you-mind. When the writer—rather understandably—complained, the re-user got his ire up, claiming fair use, and also that the writer was overreacting and ought to be flattered that someone liked his work enough to rebroadcast it to a wider audience.
Both are pretty common arguments, and they’re equally annoying because they rest on faulty assumptions: that a use of someone’s work is fair if you say it is, and that anyone making their work freely available will be pleased if it gets picked up and re-shared elsewhere. The particulars are as follows: a blogger wrote a post about the possibility of going back to war in the Middle East. The post went viral, getting reshared all over Facebook, and eventually got reposted on a couple of other sites. It also got picked up by a podcaster who read the entire post, verbatim, with a minimal introduction to the effect that he thought the post was really cool.
The blogger was rather displeased, especially since some of these re-posts were without attribution or so much as a link back to his original work. And he let it be known, particularly to the podcaster who had read his essay. The podcaster fired back that his use of the essay was fair, since he wasn’t profiting off of it.
There is an ongoing conversation over how material gets used and re-used online, where entire books and movies are copied and rebroadcast with minimal fuss, even when protected by DRM—if you know how to crack it. But the claim of fair use specifically is one that is often misunderstood and often misused—sometimes unwittingly, sometimes as an excuse. Since the only way to definitively test whether a use is fair is in court and most people don’t want to go to that kind of trouble, uses that are not fair are often let slide with little action beyond vociferous protest; conversely, uses that are fair are often nonetheless withdrawn under threat from the copyright holder, if said holder has sufficient influence and deep pockets.
So what is fair use, anyway? It’s basically an attempt to insert some wiggle room into the labyrinthine rules concerning copyright and what it’s okay to do with copyrighted material, making allowance for the need to make use of such material in order to comment on or criticize it, include it within an academic study, use it in the classroom, and other occasions where it’s unlikely that the user is directly interfering with the copyright holder’s rights.
There are four factors which are to be applied when considering whether your use is fair; however, much of the misunderstanding of fair use seems to arise from users not applying them, or being incompletely aware of them, or oversimplifying them (“my use is educational, therefore it’s fair”—which is not strictly true, and also what some people attempt to justify as “educational” can be rather entertaining).
The main criterion of fair use is that the use is limited and transformative, generally understood as either commentary or criticism, or parody of the original work. Examples would be quoting from a book as part of a review, or writing a parody of an original song—though parodying the entire song is unlikely to be considered fair (for this reason, Weird Al Yankovic gets permission from copyright holders of the songs he parodies, rather than relying on a fair use argument).
In this case, the podcaster read the entire work aloud and issued the recording as part of his podcast, with a minimal introduction. This is neither limited, nor transformative. A better choice would have been to quote from the essay, with commentary, and tell listeners where they could read the whole thing—or seek permission from the author to replicate the work, something the author would have been willing to grant upon request.
The second factor is the nature of the work. It’s easier to make a fair use claim for factual information than for creative work. In this case, the essay was an opinion piece, not a simple reporting of fact. In other words, the intent of the author was to express his experience and interpretation of events, not to be an encyclopedia. This blogger has a distinctive voice and a large following, but even if he had neither, the nature of the piece itself is interpretive and creative.
The third factor is the amount and substantiality of the portion taken. “Amount” is fairly obvious—the usual guideline is no more than ten percent—but what’s meant by substantiality? This refers to the “heart” of the work, which can be a bit nebulous, but basically can be interpreted as whatever is most distinctive or memorable about that work. In this case, the podcaster took the entire thing.
The fourth factor is whether the market for the work is affected. In this particular case, the podcaster initially asserted that the use was fair because the original author had made his work available for free in the first place; therefore, the market for the work, and therefore the author’s income, were not affected. This is true enough. But with so much content being made freely available and easily copied, there’s some question in my mind as to whether potential loss of income ought to be the sole consideration where this factor is concerned. At the very least, re-broadcasting someone’s work without a link back to the original is rude, even though people do it all the time. The podcaster also claimed that he’d made no profit off of the writer’s work, which is patently untrue since while the podcast can be accessed for free if you listen according to its broadcast schedule, a downloadable subscription costs money.
So it’s pretty obvious that this particular instance isn’t really fair, whatever the podcaster says. But of course the only way this can really be tested is by going to court, and as I mentioned previously, in most cases like these people don’t bother. (In this case, after considerable bluster and insult, the podcaster backed down.)
This kind of thoughtful consideration of whether a use is fair seems almost quaint, in these days when you can find the entirety of a newly published book online for free almost immediately, torrent new movies and games, and so on. It pretty much goes against the automatic impulse to share something cool as soon as you stumble upon it. But it takes a special kind of obnoxiousness to engage in that kind of sharing, whatever your motivation, and then bogusly claim that you’re engaging in fair use when called on it. The fifth, unspoken factor in fair use is whether you’re being a dick about it. Like the man says, don’t be a dick.