The recent flurry of activity in the copyright infringement lawsuit brought by publishers against Georgia State University has focused attention – mine, at least – on the “Fair Use Checklist” that has been adopted for use in quite a number of college and university copyright policies. As part of the mini-controversy over the naming of Dr. Kenneth Crews from Columbia University as an expert witness for the trial, the plaintiffs have objected that Dr. Crews, as a co-author of the checklist that is part of GSU’s new policy (see a previous post on this topic here) cannot be an impartial witness. In one sense this seems an odd objection, since experts are hired by each side in a lawsuit precisely because thy favor the position taken by the party that hires them, but it also offers a chance to reflect on the use and misuse of the fair use checklist and to begin to explain publishers’ ambivalent attitude toward it.
There are two obvious problems with the checklist, it seems to me. First, it can encourages a falsely mechanical view of fair use, where a “score” of seven pro versus six con, for example, means something is definitely fair use, while a one-digit reversal means it is not. That, of course, is not how fair use really works, and no score card can actually predict the results of a judicial evaluation of the fair use factors. Second, the checklist would be pretty easy to manipulate so that it tends toward the result someone is seeking. There has been some discussion, for example, about whether or not there needs to be an equal number of check boxes on each side (favoring fair use v. disfavoring fair use) in order for the checklist to itself be fair. Although this seems plausible, it is important to remember that courts have not necessarily articulated an equal number of circumstances to be considered on each side of the argument, and the checklist seeks to guide its user through the considerations that are actually in play, not some artificial list created without regard to case law for the sake of balance.
Against these two problems, both of which can be quite real, there are also a couple of sound reasons for using the checklist. First, the very mechanical nature that makes it an imperfect tool also makes it one that can be used quickly and without an entire course in copyright law by staff and faculty. These are the major groups that need to make fair use decisions day in and day out; the checklist is a way to at least be sure that they think about all of the factors that are relevant. There are many people on college campuses that seem to believe that any educational use is a fair use, and the checklist helps counter that simplistic belief and remind all of its users of the full-range of necessary considerations. Second, the checklist provides documentary evidence that a full fair use analysis was undertaken. Since part of the “remedies” section of the copyright act gives college and university employees partial protection from damages for infringement when they make a good faith fair use decision, even if they turn out to be wrong, evidence of detailed analysis helps protect the institution from potential liability.
These two arguments in support of using a checklist may help explain the ambivalence that the publishers have shown toward its use. The Association of American Publishers has announced support for several university policies that include the checklist, including Cornell’s and Syracuse’s, but they have lately seemed more hostile towards it. It is easy to see why, really. On the one hand, it is in publisher’s interest to have university employees get beyond a simplistic view of fair use, which is usually too generous, and look more closely at the full range of considerations that need to be taken into account (this explains, I think, the use of a version of the checklist by the Copyright Clearance Center as well). On the other hand, that deeper consideration will, itself, make universities less attractive targets for litigation, which seems to be the chosen weapon in the battle to narrow educational fair use.
I have to admit that I too feel a good deal of ambivalence toward the checklist, albeit for somewhat different reasons. I would like every staff and faculty member who must make fair use decisions to have a complete and nuanced view of the doctrine they are applying. But I recognize how impossible that is. Until our campuses are populated entirely by IP lawyers (may that day never come!), I will continue to believe that the fair use checklist is a highly imperfect, but even more highly necessary, tool for navigating the traitorous waters of contemporary fair use.