The Right Place of the Fair Use Doctrine 1

Intellectual Property Rights

With the advent of digital information, the recording, storage, and dissemination of information has become practically free. The previous time there was such a significant change in the cost structure for the dissemination of information was when the book became popular. Printing was invented in the fifteenth century, became popular a few centuries later, and had a huge impact in that we were able to move cultural knowledge from the human brain into a printed form. We have the same sort of revolution happening right now, on steroids, and it is affecting every dimension of human life.

— Sebsatian Thrun¹

First, there was cognitive revolution.² It was followed by the agricultural revolution.³ From there, industrial revolution emerged.⁴ Now, we are in the information revolution, an age where information reigns supreme. Information has become the currency of knowledge. The reign of information has undoubtedly elevated the importance of intellectual property (IP) rights in today’s world.

IPs refer to creations of the mind.⁵ They exist in the form of “inventions, literary and artistic forms, designs, and symbols, names, and images used in commerce.”⁶ IPs differ from conventional properties because of their susceptibility to copying.⁷ For instance, a person can copy a book and read the same story as that of the original in the copy, but he cannot copy a banana in the same manner and eat a copy thereof. Because of this, IPs are protected through grants of IP rights “to enable creators to earn recognition or financial benefit from their creations.”⁸ At the same time, the IP system seeks “to foster an environment in which creativity and innovation can flourish.”⁹ To achieve this goal, a careful balance between the interests of innovators and the wider public interest must be achieved. Among the different IP rights, copyright is the one most closely related to information.¹⁰

While technology and copyright can be used to promote the creation and dissemination of information and knowledge, they can also be weaponized for the opposite—a stagnation of learning and critical discourse. The experiences of Aaron Swartz, Alexandra Elbakyan, h3h3Productions, and Adam David illustrate this.

Swartz and Elkbayan

Swartz was one of the creators of creative commons,¹¹ a licensing mechanism designed for sharing.¹² With the belief that knowledge should not be hidden behind a paywall, “he devised a method of downloading large number of articles from JSTOR” with the intent of distributing such articles to the public. As a result, he was arrested under the Computer Fraud and Abuse Act.¹³ Elbakyan is a bioengineer who created Sci-Hub, “a portal that offers free and searchable access ‘to most publishers, especially well-known ones.’”¹⁴ According to her, the site started out as a way of making the process of unlocking papers faster and more convenient, but now its purpose is “to remove all barriers in the way of science.”¹⁵ Similarly, Elbakyan was sued, but this time, for copyright infringement.¹⁶ While these are extreme cases, these scenarios show how technology and copyright can be used to prevent or control the dissemination of knowledge. Both felt that knowledge was being locked up and felt the need to unlock the barriers. Both illustrate how access to knowledge and information can be constrained.

h3h3Productions and David

On the other hand, the stories of h3h3Productions and Adam David relate to expression and critical discourse. The h3h3Productions is a popular of comedy channel in YouTube.¹⁷ They are known for their “reaction” videos—a form of commentary on popular videos in YouTube.¹⁸ Necessarily, for their comment to make sense, they show clips of the video which is the subject of their commentary. In 2016, they were sued for copyright infringement by another YouTube user, Matt Hosseinzadeh, whose video was being mocked as a subject in one of h3h3productions’ commentaries.¹⁹ According to Hosseinzadeh, h3h3productions improperly used his content. This, however, can be seen as a form of private censorship where Hosseinzadeh took advantage of copyright protection to harass someone who made fun of him through a commentary.²⁰ The public quickly recognized the the situation as such. Donations came pouring for h3h3productions. Later on, h3h3productions used the money to create the Fair Use Protection Account (FUPA) to enable other YouTube content creators to protect themselves from copyright holders who disregard fair use.

Adam David’s story concluded differently. Adam David is a writer who made a computer program (uploaded to his blog) that took random snippets from a micro fiction anthology entitled “Fast Food Fiction Delivery Volume 2” as a method of criticizing the said anthology for being homogenous.²¹ Eventually, David received a cease and desist letter for allegedly committing a copyright infringement.²² According to him, “the [letter] cherrypicked assertions and chose to ignore details [that were] accommodated [under] the copyright law, especially for derivative works made under fair use.”²³ David ended up having to acquiesce to the demand and took down his post containing the program in order to avoid litigation.

The Exception or the Rule?

These situations show how the copyright system can be used to create a chilling effect on speech, especially on criticisms. The doctrine of fair use emerged as a response to this effect of copyright. But fair use is quickly losing its vigor. It is now being perceived as a mere exception in the copyright system rather than its rightful status as a central doctrine therein.

This series The Right Place of the Fair Use Doctrine argues that fair use is a right, and as such, it is the copyright holder's burden to prove that an alleged infringer violated fair use in cases of copyright infringement.