August 24, 2004 · Richard Posner
Here is a very worrisome problem concerning fair use. It has to do with a dichotomy long noted by legal thinkers between the law on the books and the law in action. They often diverge. And fair use is an example of this divergence. As I said in an earlier posting, fair use often benefits rather than harms the copyright holder. However, it doesn’t always; moreover, even if a copyright holder is not going to lose, and is even going to gain, sales from a degree of unlicensed copying, if he thinks he can extract a license fee, he’ll want to claim that the copying is not fair use; and finally, because the doctrine has vague contours, copyright owners are inclined to interpret it very narrowly, lest it expand by increments.
The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright’s breadth. Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS film recording. The notice will almost always state that no part of the work can be reproduced without the publisher’s (or movie studio’s) permission. This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn’t know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit.
The would-be fair user is likely to be an author, movie director, etc. and he will find that his publisher or studio is a strict copyright policeman. That is, since a publisher worries about expansive fair uses of the books he publishes, he doesn’t want to encourage such uses by permitting his own authors to copy from other publishers’ works. So you have a whole “law in action” law invented by publishers, including ridiculous rules such as that any quotation of more than two lines of a poem requires a copyright license.
Here’s a reductio ad absurdum of folding in the face of copyright overclaiming: �While interviewing students for a documentary about inner-city schools, a filmmaker accidentally captures a television playing in the background, in which you can just make out three seconds of an episode of �The Little Rascals.’ He can�t include the interview in his film unless he gets permission from the copyright holder to use the three seconds of TV footage. After dozens of phone calls to The Hal Roach Studios, he is passed along to a company lawyer who tells him that he can include the fleeting glimpse of Alfalfa in his nonprofit film, but only if he�s willing to pay $25,000. He can�t, and so he cuts the entire scene.� Jeffrey Rosen, �Mouse Trap: Disney�s Copyright Conquest,� New Republic, Oct. 28, 2002, p. 12 (emphasis added). Clearly, copying the three-second “fleeting glimpse” was fair use, but who knows how the studio would have responded if the filmmaker hadn’t cut the scene?
What to do about such abuses of copyright? One possibility, which I raised hypothetically in my opinion in WIREdata, pp. 11-12, is to deem copyright overclaiming a form of copyright misuse, which could result in forfeiture of the copyright. For a fuller discussion, see the very interesting paper by Kathryn Judge, not available online but obtainable by emailing her at email@example.com.
The underlying problems are two: the asymmetry in stakes in disputes between owners of valuable copyrights and people who are either public domain publishers or don’t anticipate that the works they’re creating will have great commercial value; and the vagueness of the fair-use docrine. I have suggested that this vagueness can be reduced by a categorical approach, under which types of use are given essentially blanket protection from claims of copyright infringement. If only one could define “glimpse”!