“Fixing” Fair Use?

Whenever I hear suggestions that fair use should be “fixed,” I am reminded that there are two very different usages of that term. When you get your car fixed, it is returned to the state where it performs as it was meant to do. When you get your dog “fixed,” however, that is not the result. So I approach all suggestions for fixing fair use from the perspective that we do not want to render that important exception to copyright sterile and, thereby, unusable. We may want to fix fair use like you fix a car, but we must be careful not to fix it like you fix a dog.

From this admittedly cynical perspective, I was pleased by what I read in Mark Glaser’s “e-mail roundtable” on the question “Should copyright law change in the digital age.”

Glaser asks two lawyers — Peter Jaszi and Anthony Falzone — and two experts in new media — JD Lasica and Owen Gallagher — how fair use might be changed to better accommodate new uses like remixes that are made possible by digital technology. Interestingly, none of the four suggest actually tinkering with the language of section 107 itself, and both lawyers point out that the vagueness of fair use, while it can be maddening, is actually a strength. Only a flexible and dynamic (to use Jaszi’s words) doctrine can truly be technologically neutral and create the space necessary to experiment with new media and new uses that were unimaginable to the drafters of the law. What makes fair use frustrating and uncertain also makes it adaptable and supportive of creativity. “Fixing” fair use by removing its vague reliance on factors that can be applied in any situation would indeed be like fixing the dog.

Instead, these four experts discuss what might be added to our law to make certain uses that have become prevalent in the digital age less risky. By creating “safe harbors,” for example, that essentially immunize certain acts, at least when done for non-commercial purposes, the fear of using fair use, and the cost of adjudicating it, can be reduced. Lasica goes further and suggests some additional positive rights that could be incorporated into the copyright law, such as the right to make personal back-up copies, to time-shift and to change formats. Both of these suggestions would leave the fundamental structure of fair use, vague and flexible as it is, intact; they would simply take some common digital uses outside of its purview. Fair use would still allow for new technologies and creative uses not yet conceived, but the cost of reliance on fair use would be reduced by specific exceptions for activities that are now well-known and clearly of benefit to consumers. These proposals exemplify the right way to “fix” fair use.