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Created: Tue Sep 24 12:00:34 2002
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M A R C D A V I S P U B L I C A T I O N S
School of Information Management and Systems marc@sims.berkeley.edu
University of California at Berkeley www.sims.berkeley.edu/~marc
From Pirates to Patriots: Fair Use for
Digital Media
Bibliographic Reference:
Marc Davis. "From Pirates to Patriots: Fair Use for Digital Media." IEEE MultiMedia, 9 (4).
October-December 2002. 4-7.
Editor: Frank Nack
Center for Mathematics and
Media Impact Computer Science (CWI)
From Pirates to Patriots:
Fair Use for Digital Media
Marc Davis
University of
California at
T echnologies, laws, and policies developed in
recent years make it impractical and even
illegal to use media in ways that have been the
Law and policy
I'm not a lawyer. However, I've been reading
and talking with lawyers in the US who are work-
Berkeley right of private citizens, the press, and academics ing to maintain our fair use rights for copyrighted
for more than 200 years. Copyright laws, such as digital media. Their work will hopefully ensure
the Digital Millennium Copyright Act passed by that we can do our jobs as researchers and devel-
the US Congress in 1998, have imperiled the pro- opers of media technology and maintain a vibrant
fessional activities of computer scientists who public discourse that values freedom of expression.
merely wish to publish articles that analyze tech- For the rest of us, to be better informed about and
nical protection measures and countermeasures participate in the legal and policy debates sur-
for digital media copyright.1 rounding fair use for digital media, it's important
As researchers working in the field of digital to become familiar with the core concepts of copy-
media technology, we have a keen interest in right and fair use. (See the "Fair Use on the Web"
ensuring our freedom to conduct research without sidebar, which offers additional pointers to the
being blindsided and hamstrung by developments background and current issues that inform the
in intellectual property law and policy. Further, we practice of intellectual property lawyers and poli-
need to be aware that our own research and devel- cy makers.)
opment--especially in areas concerning digital
media copyright protection--may in fact limit our Copyright
freedom to research and develop these and other The US Constitution (in Article I, Section 8,
digital media technologies. Clause 8) sets forth the framework for subsequent
The dangers of current and proposed legisla- copyright (and patent) law by authorizing Con-
tion to our freedom to research, develop, and gress "to promote the progress of science and use-
publish about digital media technologies requires ful arts, by securing for limited times to authors
a fundamental shift in our research focus. We and inventors the exclusive right to their respec-
need to invent technologies that aren't designed tive writings and discoveries." Copyright law
to protect copyright in a way that makes the addresses the writings of authors and, as stated in
exercise of fair use rights impossible--for private, the US Code (Title 17, Chapter 1, Section 102),
noncommercial purposes; educational and copyright protection applies to "original works
research purposes; and, in certain cases, public of authorship fixed in any tangible medium of
and commercial purposes. expression [...]." Unlike patent protection, the
To navigate the potential minefield of copy- code states that
right and fair use for digital media, I'd like to dis-
cuss three areas that help shape our discourse and ... in no case does copyright protection for an
practice: original work of authorship extend to any idea,
procedure, process, system, method of operation,
law and policy, concept, principle, or discovery, regardless of the
form in which it is described, explained,
technology, and illustrated, or embodied in such work.
media use. In addition, copyright law has long been consis-
4 1070-986X/02/$17.00 © 2002 IEEE
tent with the values of freedom of speech and
expression articulated in the First Amendment to Fair Use on the Web
the US Constitution. Here are a few resources for educating yourself about digital media copy-
Copyright law has been designed as a trade-off right issues. These resources include organizations and private individuals.
between two potentially competing goals--pro-
tecting the writings of authors long enough so Chilling Effects (http://www.chillingeffects.org/) is a joint project of the
that they can obtain financial reward for their Electronic Frontier Foundation and the Harvard, Stanford, Berkeley, Uni-
work and the unimpeded access to writings so as versity of San Francisco, and University of Maine law school clinics that
to support public discourse and "promote the aims to help users understand the protections that the First Amendment
progress of science and the useful arts." Courts and intellectual property laws give to their online activities.
have repeatedly stated that the primary goal of
copyright is to promote public access to knowl- The Copyright and Fair Use Web Site of the Stanford University Libraries
edge and that protecting the financial interest of (http://fairuse.stanford.edu/) provides an overview of the Fair Use Doc-
authors is a means chosen to achieve this end. trine and copyright law; primary materials; current legislation, cases,
The time-limited nature of copyright is a key and issues; and additional Internet resources.
component of its design so that copyrighted
works enter the public domain after the expira- DigitalConsumer.org (http://www.digitalconsumer.org/) is protecting
tion of copyright protection. fair use rights in the digital world. Their goal is to restore the balance of
copyright law so that artists and creators can prosper while citizens have
Fair use reasonable flexibility to use content in fair and legal ways. They're a con-
An additional and essential mechanism to sumer-advocacy group working to preserve consumers' personal-use
promote the public good of access to and use of media rights.
copyrighted works is the Fair Use Doctrine,
described in the US Code (Title 17, Chapter 1, The Electronic Frontier Foundation (http://www.eff.org/) is the leading
Section 107). As this doctrine notes, fair use per- civil liberties organization working to protect rights in the digital world.
tains to the legitimate use of copyrighted mate- Founded in 1990, EFF actively encourages and challenges industry and
rials without license or permission "for purposes government to support free expression and privacy online. EFF has
such as criticism, comment, news reporting, launched the Campaign for Audiovisual Free Expression (see
teaching (including multiple copies for classroom http://www.eff.org/cafe/) to empower the creative community in the
use), scholarship, or research." The case law has digital age by protecting the public's access to and use of audiovisual
extended fair use in a variety of ways including technologies.
time-shifting (for example, using a VCR to time-
shift viewing of TV programs), space- and format- Henry Jenkins (http://web.mit.edu/21fms/www/faculty/henry3/) is a
shifting (for example, making an MP3-format leading expert in the study of consumers' use and reuse of popular
version of an audio CD that you already own), media.
and reverse-engineering software to create inter-
operable programs. Pamela Samuelson (http://www.sims.berkeley.edu/~pam/) is a leading
The determination of whether a use of copy- expert in intellectual property law and has written and spoken
righted materials is a fair use has been made by extensively about the challenges that new information technologies are
the courts on a case-by-case basis according to an posing for public policy and traditional legal regimes.
analysis of four factors described in the US Code
(Title 17, Chapter 1, Section 107):
ket for or value of the copyrighted work.
(1) The purpose and character of the use, includ-
OctoberDecember 2002
ing whether such use is of a commercial nature Determining fair use is even more complex
or is for nonprofit educational purposes; because of the differing interpretations various
legal scholars have of it. The difference of inter-
(2) The nature of the copyrighted work; pretation hinges on whether fair use is an affir-
mative right that allows copying in specific
(3) The amount and substantiality of the portion circumstances versus merely a defense used in
used in relation to the copyrighted work as a cases of copyright infringement. When under-
whole; and stood as an affirmative right, fair use is a neces-
sary and integral part of copyright law that
(4) The effect of the use upon the potential mar- protects the constitutionally guaranteed rights of
5
Media Impact
purpose or different character, altering the first with
new expression, meaning, or message; it asks, in
The digital rights our other words, whether and to what extent the new
work is "transformative."
technologies should be
Our duty as media technologists is to envision
striving to protect are those and invent the future of digital media in ways
that inform intellectual property law and policy
of users, not those of data. so as to support our fair use rights and freedom
of expression. In short, the digital rights our tech-
nologies should be striving to protect are those
of users, not those of data. To work toward that
individuals to free speech and free expression. goal, we can develop technologies that support
If fair use is understood as a defense, then copy- and enhance the transformative aspects of digi-
right owners, and technologies that empower tal media by making them more accessible more
them, can control our access to digital media so accessible and reusable through the creation and
that fair use will simply no longer be an option use of media metadata.4-7
available to the public. Copyright owners would Most mainstream and envisioned popular
then dictate access to and use of digital media. applications for digital media have focused on
Imagine not being able to browse through, recording, transmitting, or finding entire works
excerpt, share, or make private noncommercial (for example, TiVo, Napster, or video on demand),
copies of copyrighted works without explicit per- rather than transforming works to make new ones.
mission from copyright holders. Recent and pend- Applications that could easily recombine personal
ing legislation, and their supporting technological media with elements from popular and public
infrastructure, may make it impossible for us to media offer new vistas for copyright law and poli-
exercise our fair use rights (for example, to send a cy to explore. Imagine a video holiday card featur-
newspaper article to a friend, use a movie clip in a ing your family inserted into a scene from your
classroom lecture, or even play our audio CDs on favorite TV show, or your postings to a newsgroup
our computers). To avoid that scenario, the legal automatically illustrated with images and video
and policy communities need input from tech- clips from wire services. These are just a few of the
nologists to help make sound laws and policies. many examples that we as media technologists can
invent that can help shape a better future for the
Technology fair use of digital media. To better imagine that
Digital media technology has brought about future, let's revisit some fundamentals of the com-
profound changes in the production and distrib- municative process and investigate how users of
ution of information that have far-reaching con- copyrighted media are transforming it today.
sequences for copyright law and policy.2 As
Dittman observed in a prior IEEE MultiMedia Media use
Media Impact column, "This is the deeper impact A fundamental process in human communi-
of digital media--that media can be easily rede- cation is the way we use the elements of language
fined either in form or meaning."3 While Dittman and culture for purposes other than those for
saw this transformative aspect of digital media as which they were originally intended. The Russ-
a threat to copyright and technological protec- ian literary theorist Mikhail Bakhtin describes
tion measures, it's the transformative nature of this bricolage of language as follows:
digital media that holds the greatest promise for
preserving our fair use rights. Writing for the The word in language is half someone else's. It
unanimous opinion of the Supreme Court in becomes `one's own' only when the speaker popu-
Campbell v. Acuff-Rose Music (the fair use of 2 lates it with his own intention, his own accent,
IEEE MultiMedia
Live Crew's rap parody of Roy Orbison's popular when he appropriates the word, adapting it with his
song "Oh, Pretty Woman"), Justice Souter stated, own intention, his own semantic and expressive
intention. Prior to this moment of appropriation,
The central purpose of this investigation [as to the word does not exist in a neutral and imperson-
determination of fair use] is to see [...] whether the al language (it is not, after all, out of a dictionary
new work [...] adds something new, with a further that the speaker gets his words!), but rather it exists
6
in other people's mouths, in other people's inten- If we aren't proactive in this regard, we may
tions: it is from there that one must take the word, find that by blithely developing copyright pro-
and make it one's own.8 tection technology, we not only lose fair use, but
our freedom to conduct research in digital media
Imagine this fundamental dialogism of lan- as well. MM
guage colonized by current copyright law: we
could barely speak to one another for fear of Acknowledgments
infringing the copyright of other people's words. I want to offer special thanks to Pam Samuel-
Such a state of affairs is the antithesis of promot- son for her inspiration and suggestions.
ing the progress of science and useful arts and free-
dom of speech and expression, but today's digital References
copyright protection laws, policies, and technolo- 1. P. Samuelson, "Anti-Circumvention Rules Threaten
gies are leading us to this silent desert. However, Science," Science, vol. 293, 2001, pp. 2028-2031.
we have an alternative. We can help create a 2. P. Samuelson, "Digital Media and the Law," Comm.
future in which digital media are the rich soil for ACM, vol. 34, no. 10, Oct. 1991, pp. 23-28.
cultural production aided by policies and tech- 3. J. Dittmann, "Copyright-Copywrong," IEEE Multi-
nologies that let authors receive protection and Media, vol. 7, no. 4, Oct.Dec. 2000, pp. 14-17.
remuneration for their works and at the same time 4. M. Davis, "Media Streams: An Iconic Visual
promote their fair use. We can discern one vision Language for Video Representation," Readings in
of what that future might resemble by looking at HumanComputer Interaction: Toward the Year
how current users of popular media appropriate 2000, R.M. Baecker et al., eds., 2nd ed., Morgan
copyrighted materials for their own purposes. Kaufmann, San Francisco, 1995, pp. 854-866.
Fans of popular media have been transform- 5. M. Davis and D. Levitt, Time-Based Media Processing
ing their favorite TV shows into personally mean- System (US Patent 6,243,087), Interval Research
ingful new works for many years. Henry Jenkins Corp., Palo Alto, Calif., 2001.
of the Massachusetts Institute of Technology 6. C. Dorai and S. Venkatesh, "Bridging the Semantic
Comparative Media Studies Program studies and Gap in Content Management Systems: Computa-
analyzes fan cultural production. He's observed tional Media Aesthetics," Proc. 2001 Int'l Conf.
that all across America, housewives, nurses, Computational Semiotics in Games and New Media,
librarians, and others create new cultural artifacts Stichting Centrum voor Wiskunde en Informatica,
by critiquing, extending, and personalizing Amsterdam, 2001.
works of popular media (for example, making a 7. F. Nack and C. Lindley, "Production and
music video from episode clips to reveal the Maintenance Environments for Interactive Audio-
homoerotic subtext of the relationship between Visual Stories," Proc. ACM MM 2000 Workshops on
Star Trek's Captain Kirk and Mister Spock).9 What Bridging the Gap: Bringing Together New Media
some copyright holders see as mere piracy, we Artists and Multimedia Technologists, ACM Press,
can understand as a transformative and fair use New York, 2000.
of copyrighted media. 8. M.M. Bakhtin, The Dialogic Imagination, vol. 1, M.
Fan (re)use of popular media is a provocative Holquist, ed., Univ. of Texas Press, Austin, Tx.,
and important example of how digital media 1981, pp. 293-294.
could serve as a resource for new forms of private 9. H. Jenkins, Textual Poachers: Television Fans and Par-
and public discourse that (re)use the most impor- ticipatory Culture, Routledge, New York, 1992.
tant and abundant materials of our culture--
motion pictures, TV, video, and audio.
OctoberDecember 2002
The future Readers may contact Marc Davis at the School of Infor-
The challenge for digital media researchers is to mation Management and Systems (SIMS), University of Cal-
ifornia, 102 South Hall, Berkeley, CA 94720-4600, email
develop technologies and applications that marc@sims.berkeley.edu. More information about him is
protect and support the fair use of copyright- available at http://www.sims.berkeley.edu/~marc.
ed materials, and
Contact Media Impact editor Frank Nack at CWI, Kruis-
inform public policy and legal debate about laan 413, PO Box 94079, 1090 GB Amsterdam, The
media technology and fair use for digital media. Netherlands, email Frank.Nack@cwi.nl.
7