July 14, 2004  ·  Lessig

Thanks to the folks at Variety, this is a pdf of my op-ed about Outfoxed, that ran in Variety. Text in the extended entry.

Fair Use or “Fair and Balanced”
Lawrence Lessig
Variety, July 14, 2004

Robert Greenwald’s latest film, “Outfoxed,” is a political documentary about Republican bias at Fox News. It is also, as the New York Times Sunday Magazine dubbed it, a “guerrilla documentary.”

In addition to interviews with former Fox employees, academic studies evaluating the “Fox effect” and internal Fox memos, Greenwald has used significant number of clips from Fox News to show the bias that the slogan “fair and balanced” belies.

He had no permission to use those clips.

Fox has called Greenwald’s use stealing. It has warned other networks that if they exploit his “illegal copyright infringement,” those networks will open themselves up to similar criticism — presumably by Fox. And its legal department has complained that it was not given enough time to respond to questions the New York Times raised about the doc — and that the Times was therefore a co-conspirator in this copyright infringement.

If Greenwald’s use of Fox’s content is “fair use” — as we believe it plainly is — then it is no more “stealing” than walking across a sidewalk in front of a neighbor’s home is trespassing on the neighbor’s property.

Copyright is property, but like all property, the rights it grants are limited. “Fair use” is one such limit, constitutionally compelled, giving critics such as Greenwald the right to use a limited amount of copyrighted material without asking permission first.

Democracy depends upon such criticism — especially as the owners of our culture become fewer in number, and the power they exercise, because of media concentration, increases.

Fox claims it is “fair and balanced.” Is it?

Bill O’Reilly promised Fox viewers that he would report the news of the war “without an agenda or any ideological prejudice.” Did he?

These are important questions at any time, but especially now, as the answers so dramatically affect current public policy. And they can be answered effectively only with a work that can use the images that created the bias alleged.

Journalists should encourage such criticism. If news networks are not as they say they are, then journalists and critics should be able to show it. If Greenwald’s argument is wrong, then let another filmmaker contradict it. Or if ABC is just as bad, then let ABC be outed, too.

Yet that thought no doubt terrifies not just Fox, but every one of the (handful of) networks that now control our airways — which is why Fox’s first response to the Greenwald film was to warn other networks not to take it seriously, or risk “opening (themselves) to having (their) copyrighted material taken out of context for partisan reasons.”

Fox and others will insist that any use of their copyrighted material is “theft”; they will rally to fight this “theft” in order to protect themselves from this unwanted criticism.

Let’s hope reason leads these network owners to allow this rally to fizzle.

For “fair use” is grounded in First Amendment principles. Among those principles is one that is central to news organizations generally: New York Times vs. Sullivan.

In that case, the Supreme Court held reporters are immunized in most cases from libel actions. A “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open” meant that even erroneous statements must be protected so long as the error was not knowingly made.

The same principle should guide “fair use” in the context of a film criticizing a news organization. If the reputation of public figures must be sacrificed so that news organizations have the “breathing space that they need to survive,” then the scope of fair use should be interpreted to assure that critics of news organizations have the breathing space they need to survive, too.

A commitment to these free-speech values is a commitment to fighting wars of ideas with more speech, and fewer lawsuits.

It is as shameful for Fox to sue Al Franken for using “fair and balanced” as it is for Michael Moore to threaten to sue his critics for defamation. We need more debate in America, not less. And we will get more critical and insightful debate if filmmakers like Greenwald can do their work without the law requiring that lawyers look over his editor’s shoulder.

Fox News is a network. It has the privilege of 24/7 access to most American citizens. If it believes it has been wronged by Greenwald’s film, then let it match his criticism with criticism of its own — through its journalists, not its lawyers.

And as to whether three days was enough time for Fox’s legal department to respond to a question from the New York Times, come on. If its legal department can’t muster a response to a simple question in three days, I’d be happy to advise Fox where it might find faster, more efficient lawyers.

Lawrence Lessig is a professor of law at Stanford Law School and author of
the book “Free Culture” (Penguin Press, 2004). He is advising Robert Greenwald.

  • Matthew Saroff

    Copyright is property, but like all property, the rights it grants are limited.

    I am not a lawyer.

    While I agree that copyright is limited, I think that calling it property is a bad idea.

    It doesn’t work like property. If I “steal” your joke, you still have the joke, but if I steal your car, you no longer have your car.

    Forcing someone to loan their car out after a few years is patently unfair, and by applying that term to IP, you frame the debate in the same way. You cede at least half the argument to the folks who want IP (where the P stands for Product) law to apply absolutely and eternally.

    Copyright (and Patent) are limited scope and duration exclusive licenses granted by the government for the purpose of encouraging the useful arts and sciences.

    It’s no more property than a liquor license.

  • matt perkins

    I think the point is this: Copyright is property. Copies are property. Copyrighted works are not property. (The concept of non-rivalry is not new to Lessig; see Future of Ideas.) I don’t think it’s helpful to black-list certain words just because the content industry chooses to misuse them.

    I’ve never heard the copyright power described as a “license” before. Licensed to the copyright owner … by whom? What entity is the one with natural (or property) rights to the markets for books or songs, and which “licenses” those rights to the expression’s author? Is it Congress? I’d think that a liquor license most certainly is property — not just the obvious piece of paper, but also the privilege it conveys. It’s not as easily transferred as a lawnmower might be, but it probably falls into that category of things the gov’t. can’t take away without some due process (or evidence of violating the terms of the license).
    –matt

  • David Ball

    Hi Prof. Lessig–

    I take INTERNATIONAL NEWS SERVICE v. ASSOCIATED PRESS , 248 U.S. 215 (1918) to mean that there’s no property right in the facts of the news (the case was decided on unfair business practice grounds). So is Fox’s only claim to property in how they presented the facts? In other words, if they really are “just reporting” (while “we decide”), then there’s no property here and no claim. If, however, as the documentary alleges, they’re doing something creative with the facts, they’re conceding the bias issue in order to assert a property issue. The only property derives from the literary form of the facts.

    “No doubt news articles often possess a literary quality, and are the subject of literary property at the common law; nor do we question that such an article, as a literary production, is the subject of copyright by the terms of the act as it now stands.”

    Or am I missing something? DB

  • David Noha

    I think that calling it property is a bad idea.

    Absolutely agreed…

    If it were a natural and intuitively obvious characteristic of ideas that they could be owned, then the phrase intellectual property would not be necessary, as it would be redundant, and people would just say “ideas” instead.

    GNU explains why not to use the phrase.

    The phrase is of course loaded. It triggers the baser feelings of greed, and that anyone who is using anyone else’s stuff in unsanctioned ways is bad. It also triggers among the intelligentsia the (IMHO incredibly damaging when overbroadly applied) meme that greed (AKA “self-interested behavior”) is the basis of free market capitalism. (The main problem with that meme is means-end confusion: the purpose of free market capitalism is to improve/maximize the public good, not to exercise self-interested behavior. The end has been forgotten, replaced by the means.)

    But there are also opposing emotional triggerings going on too.

  • Joseph Pietro Riolo

    Commenting on Matthew Saroff’s comment:

    Copyright is properly called as a property.
    Property means a set of rights that comes
    with the ownership in an object. When an
    author or artist creates a creative object,
    the government grants him or her the ownership
    in the creative object and the ownership comes
    with a set of 4 to 8 rights as stated in
    the copyright law.

    Now, there are different kinds of properties.
    We have real property, personal property, and
    intellectual property. Each kind has its own
    set of rights. Unlike real property, you can’t
    split rights in intellectual property. Either
    you own all or disclaim all rights in intellectual
    property. With real property, you can split
    rights such as selling right of water to one
    person but keeping the rest of rights for
    yourself.

    Let’s look at the true meaning of “public
    domain”. Domain means land or property and
    because it is a property, comes with a set
    of rights. In case of works covered by
    copyright and inventions covered by patent,
    when works or inventions enter into (or return
    to) the public domain, it means that the
    public (meaning all people) owns them as
    a government would own public land. Because
    there is no one who would exclude others
    from owning the works and inventions, the
    public domain results in total freedom.

    Ownership is a fundmental concept in copyright
    (and patent) because it opposes the natural
    right. Natural right, according to those who
    support it, is supposed to be perpetual, which
    is contrary to the freedoms of communication and
    knowledge. This also explains why FSF’s usage
    of “free” is misleading (i.e. GPL retains the
    ownership in software and therefore, is never
    free as in freedom of speech).

    You have a point in your worry that people will
    try to propagate the concept of perpetuality
    from real property to intellectual property.
    But, that is not possible due to the limited
    times clause in the U.S. Constitution. Your
    worry should be on the attempt by some people
    to replace property rights in copyright and
    patent with natural (and moral) rights.

    (License is a permission. Most of the times,
    it is not equivalent to right. However, in
    some places, they mean the same thing depending
    on how the term “license” is meant to be.)

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • http://sethf.com/ Seth Finkelstein

    In the past, I’ve suggested that a good replacement for the term “intellectual property” would be:

    “granted monopoly”

    That is, a copyright is property. However, it also a granted monopoly, entirely a creature of statutes.

    Any emphasis on the “property” aspect tends to immediately derail discussion, for the reasons noted by David Noha.

    Focusing on the “monopoly” aspect would be much useful, I believe.

    I understand there is zero chance of this happening though …

  • Matthew Saroff

    I’ve never heard the copyright power described as a “license” before. Licensed to the copyright owner … by whom?

    Section 1, clause 8 of the constitution:

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

    That sounds like a state grant of an exclusive license (Like, the East India Tea Company), and not a grant of property to me.

  • Jardinero1

    I was so busy being a smart aleck, I forgot to ask about fair use. I thought fair use was when made or borrowed a copy to read at home; or when you made or borrowed copies for some educational purpose like a class or discussion group. I didn’t know fair use was when you minted thousands of copies for commercial gain. While the documentary “outfoxed” seems educational, it is definitely providing some pecuniary gain for it’s producers. There seems to be some merit to Fox’s claims in that regard.

  • matt perkins

    OK, I get it now — but I think there’s a semantic problem there. I think of a “license” as a grant of permission to do something over which which the licensor alone has power, and over which the licensee (or copyright owner, in your verbiage) would otherwise have no power.

    But neither Congress nor the Constitution reserve the copyright powers to themselves, and then “license” those powers to authors. The Constitution authorizes Congress to grant the rights, and Congress grants the rights. Once secured, the copyright owner licenses its rights to other people.

    Whether a “property” or a “liberty,” it seems to me that copyright is granted to authors, and licensed by authors — not licensed to authors.

    Here’s a scary thought … if copyright is a property, can Congress shorten copr. terms without violating due process? Or does the Eldred decision avoid that issue, with all of its deference to Congress?

  • Jardinero1

    Let me restate somthing to be clear about what I am trying to say: “While the documentary ‘outfoxed’ may be educational, it is definitely providing gain for its producers and therefore definitely commercial in its use of the footage.” Greenwald isn’t just re-airing the news. He isn’t just including snippets for some editorial piece in a newspaper or on a newsshow. He is reproducing material and distributing it for a fee. I suppose that if Greenwald or his producers expect to gain profit, prestige or notoriety(gain takes different forms) by the central use of Fox material in his documentary, then he could have obtained permission first.

  • Jardinero1

    Here’s an analogous situtation: What if Rupert Murdoch made a critical, anti-lessig book, video and dvd(available for $9.99 plus shipping and handling) that was made mostly from chunks of “Free Culture”. In fact without the chunks of “Free Culture” it could not exist in any substantive way. Let’s say he didn’t get permission to use those chunks from Mr. Lessig. How would Mr. Lessig feel about Rupert’s fair use.

  • Matthew Saroff

    I didn’t know fair use was when you minted thousands of copies for commercial gain.

    Congratulations. You have just declared EVERY movie review on TV, book review on paper, music review on the radio, etc. illegal.

    Fair use has a non-commercial component, but it also SPECIFICALLY INCLUDES for profit use for the purpose of criticism.

    If Outfoxed is a review of a “news” network. The fact that it slams the network in a way that makes Rex Reed look like Shirley Temple, makes no difference.

  • http://sethf.com/ Seth Finkelstein

    Jardinero1 – look up the language of the law of Fair Use

    Note the portion “criticism, comment, news reporting, …”

    That’s distinct from “teaching … scholarship, or research …”

  • Jardinero1

    Matthew,

    “Fair use has a non-commercial component, but it also SPECIFICALLY INCLUDES for profit use for the purpose of criticism.” Don’t forget about parody.

    I noted the distinction for editorials. This particular work is one of a kind, distinct from editorials and movie reviews. The way it is marketed and distributed is distinct from editorials and movie reviews. The end purpose in its distribution is different than an editorial or movie review. That’s why I conjured up the analogy with Mr. Lessig’s work.

    I think that if Greenwald had done a documentary on a different organization(who take their work seriously), like Dow Jones & Co. and copied their material without permission he might have a real fight on his hands. Moveon.org and the Center for American Progress would be the bunker trying to figure out what to do.

    The flacks at Fox are cut from a different cloth and they are playing Greenwald, et al for all the free publicity and additional viewers they can get, hence the kid gloves treatment.

  • Jardinero1

    Seth,
    Thanks. I looked at 110(4)(a)(b) and 106A(a)(2)(3). Are they relevant?

  • http://sethf.com/ Seth Finkelstein

    I’d say those are esoteric. The core argument here is on the standard four factor test, and the only problematic one is the “amount” determination.

  • http://www.farceswannamo.com David Woycechowsky

    Response to David Ball:

    Regardless of the amenability of facts to any sort of “intellectual property” protection (cf, Feist (not the BSS singer)), there are plenty of prima facie grounds for Fox to bring its copyright and trademark and dilution suits.

    There are the expressions on Bill O’Reilly’s handsome face, there is the backdrop which so nicely complements O’Reilly’s creamy skin tone, there is the pattern of lipstick upon his lips. There may even be a strand of “expression” in his series of words, pauses, gestures and inflections.

    Clarification: I am not saying that Fox is correct, rather Greenwald is for the reasons set forth by Prof. Lessig. I am just saying that there is a virtual infinitude of protectible subject matter, even in something as straightforward as a TV political commentary show. Also, when I say that Fox has prima facie grounds, I am not trying to say that they have a Rule 11 sufficient basis for any law suits (I have no comment on that issue).

  • Jardinero1

    Seth,
    I thought some more about sec 107; tell me what you think. (1) wouldn’t you agree that this film is serving a commercial purpose for its producers?
    (2) the material used wasn’t just Bill O’Reilly reading the A.P. wire. It was the uniquely bombastic, slanted, conservative Fox material. The internal memos were certainly unique to Fox.
    (3) Substantiality is hard to define. Thirty minutes of Fox material in the context of thousands of hours of Fox broadcasts is not much. But the documentary could not stand by itself without the material. In that sense it is substantial.
    (4) While laughable, Fox could argue that this will weaken the market for their material. I believe and I think Fox believes that the opposite is true. This documentary is beneficial to Fox, which is why they play along. Greenwald should have charged Fox for the priviledge of having their material aired in this manner, the way they charge in Hollywood to have products placed in movies.

  • bullsfan79

    Hey – just to interject – I just got this email from another
    campaign and thought it worthwhile to put out in the ‘sphere.
    If you want, check it out and sign up – we need to turn up the
    heat on Bush in all corners.

    Thanks!

    BullsFan79

    —–
    From: Craig Kirby, Deutsch for Senate
    Subject: We Can Save Lives – Tell George W. Bush to Stop
    Blocking American Scientists

    The passing of Ronald Reagan has refocused the nation on
    the importance of stem cell research, and the promise that
    it holds for so many Americans. But even as our nation’s
    top scientists work around the clock in their efforts to
    cure Alzheimer’s, Parkinson’s, Diabetes, Tay-Sachs, Sickle
    Cell Anemia, and Paralysis, their hands are tied by the
    short-sighted agenda of George W. Bush, who three years
    ago outlawed federal funding for this life-saving research.

    Take this opportunity today to tell the president to stop
    his obstructionist tactics and allow scientists to do their
    critical work. Sign the petition today:

    http://www.deutsch2004.org/petition/stemcell.shtml

    This week U.S. Representative Peter Deutsch (D) of Florida
    introduced a bill in Congress that would lift the ban on
    federal funding for stem cell research. The bill would
    enable researchers to use stem cell lines left over from
    the in vitro fertilization process, but only with the
    express consent of the donor. At the same time, the bill
    also would ensure that the research could have a wide range
    of applications through a new focus on diversity of stem cell
    lines. Finally, the bill creates an office within the NIH to
    be called the “Ronald Reagan Office of Human Stem Cell
    Research” to oversee all research on the subject.

    The bill has broad support nationwide. Republicans such as
    first lady Nancy Reagan and Senator Orrin Hatch – not to
    mention research advocates like Christopher Reeves and
    Mary Tyler Moore – have urged the president to take a
    more compassionate, common-sense stance on this issue.
    However, until George W. Bush ends his divisive posturing,
    many Republicans will not support the bill. Send him
    a message today that curing illness, not scoring
    political points, should be a top priority.

    Once you’ve signed the petition, please copy this email
    and forward it to your friends and relatives, and ask
    them to join you in signing as well.

    Craig Kirby
    Campaign Manager
    Deutsch for U.S. Senate (D)

  • Lewis Hyde

    In regard to �copyright is property,� it might help to include the word �monopoly.� A property right and a monopoly right are related but distinct. A farmer who sells vegetables at a market is not the same as the person the state has given, for some reason, a monopoly on the vegetable trade.

    In his recent book on the Constitution�s intellectual property clause, Edward Walterscheid writes that �antipathy toward monoploies� was well developed at the time of the Constitutional convention, adding that Thomas Jefferson �undoubtedly viewed patents as monopolies.� (Jefferson wrote to Madison that the bill of rights should provide �clearly and without the aid of sophism … for the restriction of monopolies.�)

    To say �copyright is property� is true but misses, to my mind, the spirit of the Constitutional limits. Better to say “Copyright gives its owners a monopoly, but like all monopolies it is limited.” — Lewis Hyde

  • Joseph Pietro Riolo

    Copyright is, of course, a limited monopoly over
    authors’ and artists’ works. We have to ask ourselves:
    How is it possible that they have limited monopoly?
    The answer is simply that monopoly comes from the exclusive
    right that is stated in the Constitution. Then, we have
    to ask ourselves: What kind of right is it? Is it
    natural right, property right, personal right, civil
    right, criminal right, victim right, parental right,
    make-up right, any other kind of right, or just plain
    exclusive right?

    Some of the rights that come with the real property
    are also exclusive. I own one acre of land and I have
    the exclusive right in my land. I can prevent people
    from using my land. But, like copyright, my exclusive
    right in my land is limited. I can’t prevent people
    from having the right-of-way across my land. Now, we
    have to ask ourselves: How is it possible that I have
    exclusive rights in my land? The answer is ownership.
    I bought one acre of land for a price and after the
    transaction is completed, I obtained ownership in my
    land. The ownership gives me both exclusive and
    non-exclusive rights in my land.

    So, we have to ask ourselves: How is it possible that
    authors and artists have exclusive rights in their works?
    The answer is ownership. When they create their creative
    works (non-creative works do not obtain copyright), the
    U.S. Government grants them the exclusive rights by making
    themselves owner of their creative works.

    It happens that the exclusive right in copyright is also
    same as the exclusive right in real property. Therefore,
    the exclusive right in copyright is a property right. This
    is important because, as I stated in my previous comment,
    it opposes the natural right that the authors and artists
    try to inject in copyright.

    Let me try other perspective. Let’s say that we should not
    call copyright as a property but as a limited monopoly.
    This inevitably implies that the authors and artists are
    also monopolist. This means that Seth Finkelstein and
    Lewis Hyde are monopolist because they own limited
    monopoly in their writings. Even I am a monopolist because
    I still own limited monopoly in some of my writings. So
    are Professor Lessig, Linus Torvalds, Richard Stallman,
    and lest we forget, Bill Gates. The difference between
    Professor Lessig and Bill Gates is only a difference in
    the degree of generosity. Professor Lessig is more generous
    than Bill Gates but they are still monopolist nevertheless.

    Because of many negative connotations that the word
    “monopoly” carries, I think that none of us wants to be
    called as a monopolist (monopolist is defined as a person
    who has a monopoly) but that is what we are if we think
    that copyright is only a limited monopoly and nothing else.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • http://sethf.com/ Seth Finkelstein

    I would disagree here:

    “grants them the exclusive rights by making themselves owner of their creative works.”

    I would say, to be very precise, they are owners of certain monopoly rights related to the works – copying, distribution, performance, etc.

    That is, a very subtle point, they have ownership of the rights – not the works.

    Regarding: “The difference between Professor Lessig and Bill Gates is only a difference in the degree of generosity.”

    Well, yes, but there is less to this than meets the eye. It’s like saying “Both Lessig and Gates are capitalists”. That’s true, but the difference isn’t trivial. After all, what’s the difference between the copyright term laws of 1976 and of 2004, except one of degree?

    While I agree nobody wants to be called a monopolist, I view that as a far more minor consequence as opposed to the incredible amount of knee-jerk *NOISE* which is generated by the term “property”.

  • http://www.glome.org/ Trevor Hill

    Ummm. I really wish Prof. Lessig would not allow such wacky talk to go on without giving you all some grounding in reality…

    I hate to tell you, but you’re not going to re-invent the vocabulary of the law in this thread. Intellectual property means something to people who study the law, and there are a whole lot of reasons for that. It may be harsh to say this, but no one actually much cares whether you think “ideas can’t be owned,” because they can be owned.

    This sort of view (changing the use of “property”) is really not going to get anyone anywhere. It’s akin to wrangling with a new and improved version of Klingon grammar on a wiki somewhere…

    However much I disagree with the majority opinion here, or with RMS, all I’m trying to do right now is tell you that many of the arguments in this thread are simply too weird to be accepted by anyone actually practicing law, IMHO…

    So the definition of property and intellectual property are not going to change, but maybe the boundaries of those could change if the proper arguments were put forth…

  • Paul Adair

    How many of you ever produced a movie? Video-to-film transfer costs? Editing costs? Music rights costs? Talent costs
    and release print costs and percentage split with theatres
    and distributors, advertising, transportation, shipping, stor-
    age, insurance, etc., etc., etc. Get real !!