[DMCA-Activists] Brennan Center's Fair Use Report Released

[Seth Johnson]

-------- Original Message --------
Subject: [Publib] Brennan Center's Fair Use report is out -
Please post!
Date: Mon, 05 Dec 2005 10:41:57 -0600
From: "Don Wood" <address@hidden>
To: "PUBLIB" <address@hidden>

"Will Fair Use Survive? Free Expression in the Age of Copyright
Control"

from the Free Expression Policy Project at the Brennan Center for
Justice, NYU School of Law

http://www.fepproject.org/policyreports/WillFairUseSurvive.pdf

Executive Summary

""Fair use" is a crucial part of our copyright system. It allows
any of us to quote and reproduce parts -- or sometimes all -- of
copyrighted works, if the use advances creativity and democratic
discussion. There are similar free expression safeguards in
trademark law. Together, they assure that the owners of
"intellectual property" cannot close down the free exchange of
ideas. These safeguards in our copyright and trademark systems
are at risk today. Threatening "cease and desist" letters cause
many people to give up their fair use rights. Even more
troublesome are "take-down" notices sent by copyright owners to
Internet service providers, which pressure them to remove online
speech without any court having ruled that it is illegal.

Additional hurdles to fair use come from the "clearance culture"
in many creative industries, which assumes that almost no quote
can be used without permission from the owner. Meanwhile,
educational "fair use guidelines," which are often narrower than
fair use law, prevent many teachers from copying material for
their classes. In late 2004, the Brennan Center for Justice began
a research project to learn how well fair use and free expression
are faring among artists, scholars, and others who make critical
contributions to culture and democratic discourse. We conducted
focus group discussions, telephone interviews, an online survey,
and an analysis of more than 300 cease and desist and take-down
letters that have been deposited with the "Chilling Effects"
Clearinghouse. Our discussions with members of PEN American
Center, Women Make Movies, the College Art Association, and the
Location One Gallery yielded two common themes. The first was
that artists and scholars have great interest in, and confusion
about, fair use. The second was a need for community support and
pro bono legal assistance in their dealings with publishers,
distributors, and other cultural gatekeepers. Our analysis of 320
cease and desist and take-down letters from the Chilling Effects
Web site indicated that more than 20% either stated weak
copyright or trademark claims, or involved speech with a strong
or at least reasonable free expression or fair use defense.
Another 27% attacked material with possible free expression or
fair use defenses. Thus, almost 50% of the letters had the
potential to chill protected speech. The materials targeted by
the letters ranged from criticism of a Scientology-like
"planetary enlightenment" program to parodies of American Express
and Mastercard. Our telephone interviewees included the creator
of a parody New York Times corrections page, an editor at the
Cape Cod Voice, and small entrepreneurs using such terms as "Pet
Friendly" Travel or "Piggy Bank of America." Five of them had
strong or at least reasonable fair use or First Amendment
defenses, and four had possible defenses.

Another seven received cease and desist or take-down letters with
weak copyright and trademark claims. Yet nine of the 17 people we
interviewed acquiesced in the copyright or trademark owners'
demands, or had their material removed because of take-down
letters. 290 people filled out the online survey, expressing
opinions about, and experiences with, copyright and fair use.
Their stories ranged from an artist who made "Homeland Security"
blankets to a fan fiction Web site that posted a story called
"Gaelic Dreams" and received a cease and desist letter from the
"Gaelic Dreams" import company. Numerous teachers and scholars
expressed frustration with a clearance culture that locks images
out of public view whenever an owner refuses permission or
charges too high a price. What can be done to bolster fair use
and free expression in the digital age? Our recommendations
include creating a clearinghouse for information, including
sample replies to cease and desist letters and take-down notices;
a legal support network; outreach to Internet service providers
to encourage help for those targeted by take-down letters; and
changes in the law to reduce the cost of guessing wrong about
fair use."

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