Free speech, fair use, and affirmative defenses

On an e-mail list to which I do not subscribe, there was recently a long exchange about fair use and large-scale digitization.  Part of the exchange was forwarded to me by a friend seeking comment about a specific issue that was raised, but in the course of looking back at the thread I discovered this comment:

Fair use doesn’t “allow” large scale digitization and didn’t “allow” digitization in the case of HathiTrust. The fair use provision does not allow anything up front- it has to be won through litigation. The fair use provision was used as an affirmative defense in litigation concerning the HathiTrust et al., and after much time and money spent in litigation, the court ruled, and the appeals court ruled, that HathiTrusts’s activity could be considered fair.

This comment repeats a mistake that is very common in discussions of fair use — while noting correctly that fair use is an “affirmative defense,” it concludes from that fact that fair use must be something unusual, a privilege that we rely on rarely because it is risky and difficult to prove.  But, as I hope to show with the rest of this post, affirmative defenses are quite common; in fact, almost all positive rights have to be treated as affirmative defenses in litigation.  We rely on things that are “allowed” by affirmative defenses all the time.

Basically, to call something an affirmative defense is to make a technical point about how it functions in a court case.  We should not be frightened by the phrase or invest it with too much significance.  Some of our most cherished rights would have to be called affirmative defenses in the technical sense that is the only proper usage of that phrase.

Consider the case of Cohen v. California (1971), one of our most important cases about the meaning of the First Amendment.  Mr. Cohen entered the Sacramento court house wearing a piece of clothing on which he had written a profane anti-war message — “F**K the Draft” — and was arrested for disturbing the peace because that message was considered “offensive conduct.”  The Supreme Court ultimately held that it was protected speech, in spite of the profanity, and that Cohen’s arrest was therefore improper. But let’s imagine for a moment how the trial over this issue must proceed.  The state would provide evidence that Cohen did wear the jacket, had deliberately painted the words on it, and knew what was written on his jacket when he entered the court house.  Cohen’s defense would then be to actually admit all of those points, but raise an additional fact — his words were political speech protected by the First Amendment to the U.S. Constitution.  Free speech would thus function as an affirmative defense to vindicate Mr. Cohen’s right.

I hope this example illustrates two things.  First, all an affirmative defense means is that the defendant must raise additional facts or legal principles in addition to what the plaintiff or prosecution has asserted.  This is not uncommon; anytime a defendant does more than simply deny the truth of everything the plaintiff says, they are raising an affirmative defense.  Second, all of our most cherished rights in America can function as affirmative defenses in court, but that does not mean they are unusual or unreliable.

In any court case, the plaintiff has to prove some facts in order to establish that a “cause of action” exists.  A defendant then has two avenues — he can simply deny the truth of some or all of what the plaintiff has said (we call that arguing that the plaintiff failed to meet her “burden of proof”) or he can produce additional facts that show that what he is accused of doing is actually permissible (which is the defendant’s “burden of proof”).  If we take the Georgia State copyright case as an example, we can see both strategies at work.  For over 20 of the challenged excerpts, GSU successfully argued that the publishers had not met their burden of proof by showing that they owned a valid copyright in the works in question.  Since the publishers could not produce valid transfers of copyright, there was no further need for a defense.  For 40+ other excerpts, however, GSU successfully argued some additional facts and showed that their use was fair use (although the Appeals Court has now told the trial court to reanalyze this).  Just like Mr. Cohen in the free speech case, GSU invoked a positive right that is precious to all Americans, but in the context of the lawsuit that right was presented as an affirmative defense.

I can’t say it often enough — when one is sued for doing something one believes is actually allowed by the law, that “right,” whether it is free speech or fair use, is always presented in the form of an affirmative defense.  All that means is that it is something which the defendant must raise to justify herself (something for which she bears the burden of proof), but these things are not rare, disreputable or frightening; they are the very rights that define our citizenship.

Fair use is one such right, and the copyright law very clearly calls it a right (in section 108(f)(4) of Title 17).  It is a key and indispensable component of our system of copyright, as the Supreme Court has reminded us many times (E.g., Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994) at 575).  It is, especially, a “safety valve” that protects free speech from encroachment by copyright holders, and it is useful to think of those two rights — free speech and fair use — together.

So it is simply wrong to say that fair use does not “allow” anything because it is an affirmative defense, just as it would be wrong to say that about free speech.  The First Amendment allows me to have campaign signs on my lawn during this election, even if my neighbors disagree strongly with me.  It allows me carry a placard down a public sidewalk proclaiming that “The End is Near,” if I am so inclined.  It would allow me even to wear a swastika tattoo, as offensive as that would be to many.  In the same way, there are many activities that we can say with assurance are allowed by the right of fair use.  When we use a quotation from a previous work in a new article we are writing, we do not stop to do a individualized analysis because we know, and pretty much everyone agrees, that this is a settled instance of fair use.  Nor do we need to re-litigate the Sony v. Universal Pictures case every time we want to record a TV show to watch at a later time; the Supreme Court has confirmed for us that doing this is allowed by fair use.  And in the HathiTrust case, the Second Circuit told us that fair use supports large-scale digitization for the purpose of indexing and access for persons with disabilities.  It is possible that a rights holder could challenge such an activity again, just as some government entity could again try to outlaw profanity in political speech.  Possible, but unwise and very unlikely.

When we say something is an affirmative defense, all we are doing is indicating how it would be raised in litigation.  Many of our most cherished freedoms would be raised as affirmative defenses.  So we must resist the urge to allow ourselves to be frightened by that phrase or to accept arguments intended to make fair use seem odd, unusual, or risky.  Fair use is no more unusual or dangerous than free speech is.