The Fair Use Hammer

by Derek Bambauer

Thursday, December 10, 2009 at 04:22 PM EST

The Joel Tenenbaum – RIAA case has produced a terrific opinion by Judge Nancy Gertner of the District of Massachusetts. (Hat tip: Ray Beckerman.) This is the most thoughtful, balanced, and insightful copyright opinion I’ve read in years. Its treatment of fair use is nuanced and careful, and it is required reading for anyone who works on or thinks about copyright.

There are many things worth discussing in this opinion, but one crucial one is the potential role of fair use as a forcing device. Judge Gertner notes that courts have “suggested that the fair use determination may be affected by the availability — or absence — of authorized ways to obtain the work in question.” (Op. at 30.) Thus, a “different defendant, who was accused of file sharing prior to the iTunes Music Store’s market-changing debut, might have a different case.” (Op. at 32-33.) The opinion contemplates a successful fair use defense based on the failure of a creative industry to offer lawful, easy ways to access its products. Now, the music industry had some lawful options pre-iTunes, such as PressPlay, but they sucked so atrociously that they died in the market and wouldn’t count under Judge Gertner’s analysis. They were designed to meet the music industry’s desires, not those of consumers.

What I like about this analysis is not what it says about music – music is the last war – but about movies and other copyrighted material. Right now, where can you get the movie of your choice easily, lawfully, and on-line? Um, nowhere. Maybe Netflix, for some films. But the industry has not gotten it together to offer Internet-based access to their catalog – mostly because they don’t want to change their revenue structure. If Judge Gertner is right, though, they’d better innovate in this area, because otherwise they face the possibility of file-sharers escaping copyright liability because they didn’t have lawful alternatives. That strikes me as an immensely powerful incentive to innovate and to overcome structural barriers such as inter-industry squabbling over standards. (Hello, Blu-Ray vs. HD DVD!)

I recently went to a lecture by a vice-president of a major content corporation. He naturally derided file-sharing and suggested we needed to be patient as content owners work out the right way to get their material on-line. The question I asked him was, why we should pay any attention to him at all? I think there’s little chance that content owners will disrupt their existing distribution systems and business models to let us buy their stuff in the way we want. The music industry didn’t solve lawful, easy access – Apple did. And it won’t be the movie industry or the news industry that figures out the solution; it’ll be an outsider. When that happens, we need to make sure copyright doesn’t get in the way. One means of doing that is for fair use to immunize the users who might take advantage of that new technology, and whose “voting with their feet” would pressure rightsholders to cut a deal rather than sue.

P.S. I have fulfilled my mandate as a legal academic to have at least one Lenin quote per post…

This article originally appeared on Info/Law.