Fair Use, PROTECT IP, and Common Misconceptions

BY Ali Sternburg
August 2, 2011

When CCIA recently released the 2011 iteration of Fair Use in the U.S. Economy, it was the second update of that report – the first having been released four years ago, as is chronicled on CCIA’s fair use page.  The purpose of the report is to quantifiably demonstrate the U.S. economic contribution of industries relying on fair use, with measured criteria like GDP and employment, applying the same WIPO methodology often used to allege the costs of copyright piracy.

The study is not a response to the recently-introduced PROTECT IP Act, which it pre-dates.  While many valid concerns about PROTECT IP have been voiced, the PROTECT IP Act is not ostensibly designed to limit fair use.  However, the fair use doctrine and other limitations on copyright are crucial safe harbors for individuals and groups, and any expansion of copyright, with the PROTECT IP Act as the latest example, may undermine the economic activity associated with those exceptions.  (The study defines “fair use” to include both fair use and related limitations and exceptions to copyright.)  These limitations provide an environment for innovation and creation, and facilitate building on what has come before, especially with the Internet and new ways for sharing and collaborating.

Judges have handed down several key decisions that allowed technology companies to continue to provide services that people rely on daily in their businesses and personal lives; even though incidental copying is involved, such copying is considered fair use.  See, e.g., Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). Meanwhile, the sites that PROTECT IP claims to target (albeit imperfectly) are generally not making uses that have been acknowledged by courts as fair use.  Unfortunately, while PROTECT IP is not directly aimed at search and e-commerce sites, it nevertheless aims to regulate their activities in its pursuit of infringement by others.  This could negatively impact reliance on the fair use doctrine, if service providers choose to be overly cautious in taking down potentially infringing content because of fear of secondary liability.

It is also worthy to note that exercising the right to make fair use of a copyrighted work and relying on copyright are not mutually exclusive.  Many industries counted among the fair use industries are both rightsholders and users of protected content, a fact which demonstrates the wide range of industrial applications of fair use.  It would be wrong to suggest that people who rely on fair use and limitations on copyright as part of their job cannot—and do not—also rely on the protections of copyright for their own products.  This epitomizes the goal of a balanced copyright regime.

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