Last week I received the April 2014 issue of Against the Grain, which, to be honest, is not a publication I read at all regularly.  But I do sometimes skim it for copyright articles, and today my eye was caught by an op-ed piece from Mark Herring of Winthrop University about the Google Books decision.

Although its title asks a simple and moderate question — “Is the Google Books Decision an Unqualified Good?” — the article itself is quite extreme in its point of view and for the most part does not engage with the actual decision.  Instead it is a hyperbolic diatribe about why we should all be afraid of Google; it ends with the assertion that “In a sense, we all work for Google now, free of charge.”  I have no clue what that means, but it is pretty clearly an exaggeration.  Nevertheless, there are a couple of points made in this op-ed that are prevalent enough to be worth discussing.

By the way, normally I would provide a link to any article I discuss here, particularly when I do so in a critical way.  I want readers to have a way to evaluate the whole debate, not just my side of it.  But in this instance, the op-ed does not appear to be on the ATG website.  So anyone who wants to see both sides, as it were, is encouraged to track down a copy of the April issue of ATG.

I want to start with Dean Herring’s second reservation about what he calls the “Google Book Theft.”  He complains that there is “no evidence, no empirical evidence, that shows any additional exposure of any authors’ works improves royalties” and calls Google Books “cruel” for “taking away from academics any chance to improve [their] anemic bottom lines.”  Of course, it is easy to see the shift in this paragraph when I put the two sentences together — from no “evidence of improvement” Herring moves immediately to “taking away any chance” of improvement, a leap not justified by logic.  But I am more interested in looking at the decision for what it actually is, a legal opinion at the end of the first stage of a court case.  In that context, should we have expected either Google or the judge to have presented evidence of an improvement in royalties?

The point I want to emphasize is that copyright infringement is a “tort” — a civil (non-criminal) wrong for which courts can provide a remedy.  In structure, a copyright infringement case is not very different from other kinds of tort litigation.  For one thing, there must be a finding of harm.  In copyright infringement cases the harm is often presumed — if a plaintiff shows that their copyright has been infringed, the court will usually presume, subject to rebuttal, that there has been harm.  But a judge is entitled to look at a particular set of circumstances, as Judge Chin did, and decide that he can find no harm.  Some harm is a necessary element of most torts and is explicit as well in the fair use argument (under the market harm factor).  So it is asking the wrong question to require evidence of an improvement in royalties; all the court needed to conclude in order to stay within the framework of legal analysis was that the likelihood was more on the side of such improvement than harm.

To put this another way, the burden of showing harm falls on the plaintiff.

This general framework of tort litigation is also important when we look at another argument Dean Herring makes, that after this case fair use could apply to anything.  He writes, “Determining what fair use is now is anyone’s guess.  Everything is, the way I read it.”  It is a fairly common strategy of those who favor stronger and stronger copyright protection to take the line that copyright, and fair use especially, is too difficult and must be avoided because of its uncertainty.  This hand-wringing about how the court has now abandoned all structure or logic in making a fair use finding is really just another version of that argument, in my opinion.  But fair use remains today what it was before Judge Chin’s ruling, an “equitable rule of reason” that requires courts to examine the specific circumstances of a challenged use and determine, based on those particular facts, if the use was fair.  It is not a bright-line rule, but that does not mean it is random, unpredictable or unusable.

Here is where I want to return to tort litigation, and suggest an analogy I heard a few weeks ago from Peter Jaszi, who teaches copyright law at American University.  He reminded his audience that we have lots of laws that depend on courts determining what is reasonable.  It is very common in contract law, for instance.  But Professor Jaszi focused on a different area of tort law for his analogy for fair use — the law of negligence.  For a driver, for instance, to avoid being guilty of negligence she must exercise “due care,” which is defined as the standard of care that a “reasonably prudent” person would exercise in the same situation.  Arguably, this standard for non-negligent driving is even more nebulous than fair use (where we are given factors to assess the facts).  Yet all of us continue to drive, and I dare say most of us think we know what is an appropriate level of care when we do so.  Most of us, anyway, are not paralyzed with fear because the basic rule about legal driving is so uncertain and subjective.  Nor should we be about fair use.  And, of course, neither “fair use” nor “due care” results in a free-for-all, they just give the courts the discretion to look at specific facts and try to render justice.

The best thing that Professor Jaszi said during his discussion of this parallel, and the thing I have come all this rhetorical distance to repeat, involves how we learn what it means to exercise due care as drivers.  The simple answer is that we talk to other people, and we watch how other people drive.  Over time we develop a flexible but fairly accurate sense of what we should and should not do in a particular situation, even if we have not seen the particular circumstances before.  We do not require rigid rules that anticipate every eventuality in order to dare to get in the car each day; we have internalized that nebulous standard of due care and we carry it with us on each trip.  Sometimes we make mistakes, but most of the time we do just fine.  And here is a model for how we should think about fair use. We learn what it is by talking with others about situations we encounter frequently.  We think through the factors in new circumstances as they arise.  We read how courts have applied those factors in defining ways.  And we become good fair users — fair fair users, if you will — just as we become good drivers.

Fair use is neither an empty notion nor a license to do anything, and one case, not even the Google Books case, cannot make it so.  It remains a flexible tool that is a necessary part of the copyright structure, and one which careful and sensible people can learn to use with care and discernment.

 

 

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