Reclaiming Fair Use: How to Put Balance Back in  Copyright

Abstract:

In the last few years, fair use has emerged from under a cloud of confusion and misunderstanding, as a vital free speech right. While still regarded with suspicion in some circles, fair use has also become a key feature of digital innovation. This presentation describes the development of key tools to increase the utility of fair use: codes of best practices. The Association of Research Libraries’ Code of Best Practices in Fair Use for Academic and Research Libraries, released Jan. 26, is the latest example. The creation of these codes involved scholarly research, coordination with a range of practitioner organizations, and extensive public education. The process has afforded an intimate portrait of the link between creative practice and popular understanding (and misunderstanding) of copyright law, and has documented the phenomenon of self-censorship at the level of creation.

Bio:

Patricia Aufderheide is University Professor in the School of Communication at American University in Washington, D.C., and director of the Center for Social Media there. She is the co-author with Peter Jaszi of Reclaiming Fair Use: How to Put Balance Back in Copyright (University of Chicago Press, July 2011), and author of, among others, Documentary: A Very Short Introduction (Oxford, 2007), The Daily Planet (University of Minnesota Press, 2000), and of Communications Policy in the Public Interest (Guilford Press, 1999). She heads the Fair Use and Free Speech research project at the Center, in conjunction with Prof. Peter Jaszi in American University’s Washington College of Law. She has been a Fulbright and John Simon Guggenheim fellow and has served as a juror at the Sundance Film Festival among others. She has received numerous journalism and scholarly awards, including the Preservation and Scholarship award in 2006 from the International Documentary Association, a career achievement award in 2008 from the International Digital Media and Arts Association, and the Woman of Vision Award from Women in Film and Video (DC) in 2010.

Aufderheide serves on the board of directors of Kartemquin Films, a leading independent social documentary production company, and on the editorial boards of a variety of publications, including Communication Law and Policy and In These Times newspaper. She has served on the board of directors of the Independent Television Service, which produces innovative television programming for underserved audiences under the umbrella of the Corporation for Public Broadcasting, and on the film advisory board of the National Gallery of Art. She received her Ph.D. in history from the University of Minnesota.
We look forward to seeing you there.

Buckley began by parsing the language of 793(d), 793(3), and 794(d), the Espionage Act’s key (and most controversial) sections. She then walked through the Act’s history in American judicial decisions, from US v. Gorin in 1941 and the Pentagon Papers up to the possible case against Wikileaks’ Julian Assange or leaker Bradley Manning. Throughout, she emphasized the obscurity of the Act’s three sections.

Today, our government is hesitant to prosecute under the Espionage Act. At the same time, the press (and leakers) are unsure of what’s legal. In the age of the Internet, the matter becomes more complicated: there is a higher standard for punishing dissemination of information than actual documents, but that line is blurred by technology. If reading information off a computer screen is seen as transferring information, does sending a file count fall in the document category? What is already a confusing law just gets more convoluted.

In the case of Wikileaks, the cables are clearly documents. Then, Buckley’s “logical extension” of prosecution under the Espionage Act could include The New York Times for re-publishing the leaked documents, or even Twitter users who retweeted Wikileaks’ posts. In reality, though, the federal government’s reticence to prosecute under section 793 makes this improbable.

Buckley’s closing message was a question about the law’s impact. Whom does the obscurity of the Espionage Act benefit or protect? It is not enforced because it is obscure, and the obscurity also prevents good debate and discussion. It seems this cloud of confusion lets events like the Wikileak scandal pass without prosecution. I think Assange should consider himself lucky.

by Bobby Dresser PC ’14