Post Copyright Reform In-Depth Analysis

Fair Use vs. “Tolerated Uses”: Protection Only for the Powerful?

March 31, 2015 ,

Last week, the House Judiciary Committee issued a press release on its website related to its voting on an immigration bill. While others debate the merits of the bill itself, what seemed to capture people’s attention was the release’s extensive use of animated reaction gifs, consisting of clips taken from copyrighted works.

A lot of people, like the author of the ZDNet piece linked above, are eager to call out the Judiciary Committee on this, claiming that a committee with a track record of supporting frequently overbroad copyright laws shouldn’t be using others’ copyrighted works this way. And if the Committee as a whole, or its leadership in general, were on record saying that uses like this were infringing, then yes, that would be hypocritical.

Of course, I think the use isn’t infringing. Even assuming that the staffer who compiled this release didn’t get permission (or that the Committee doesn’t somehow have a blanket license to take clips from these shows), there’s a case to be made that the amount of copying is de minimis—that is, not enough is copied of the work to create an infringement claim. But the most successful defense against an infringement claim in this case would be fair use.

Yes, the original works are creative, and no, the use of them in the press release wasn’t a parody—certainly not of the original works. And their use wasn’t criticism, scholarship, or news reporting, or other traditionally protected use. (They do fall within the realm of “commentary,” though how much of a fair use nudge that buys them, by itself, is debatable).

But the amount of the works taken is pretty minimal—soundless clips of a few seconds at most, out of much longer shows and movies—and in the end, it’s not like these clips are replacing the market for the original works. Someone might claim that their use might replace some theoretical market for licensing short clips for reaction gifs, but such a market simply doesn’t exist today.

So I would say that this is a fair use. I mean, I recently pointed out to a group of Hill staffers that this sort of gif usage (which is increasingly common) by their offices would subject them to potential liability of $150,000 per fork infringed, if not for limitations on copyright law like fair use.

“Tolerated Uses”

The Judiciary Committee doesn’t seem to have said whether it thinks that these uses are de minimis, fair, or whether they might have gotten permission. But in any case, it seems unlikely that anyone’s going to get sued over it, just like Buzzfeed and most of tumblr aren’t currently getting served with lawsuits daily.

This doesn’t necessarily mean that the companies that hold the copyrights in these shows agree with my fair use analysis. (My guess is that they don’t, given that we’re still fighting battles over whether or not recording TV at home is legal, or whether or not you can make a mixtape.) When examples like this come up in policy discussions, they typically start referring to something they call “tolerated use.”

“Tolerated use,” in essence, means, “We still think it’s illegal, but we, in our beneficence and benevolence, will deign not to sue you.” Which is of great comfort, so long as you don’t do anything else, legal or not, that they dislike. Start to compete with them, and suddenly the limits of their tolerance will begin to show.

Good news for the Judiciary Committee, then, since it’s unlikely that it’s going to start producing professional quality video with mass appeal. (Sorry, House livestreaming team.) More to the point, picking a fight with a powerful committee that has jurisdiction over the laws that most directly govern you is…unwise.

And this is exactly the problem with “tolerated use.” It’s a euphemism for arbitrary or discriminatory enforcement, and it ensures that the substantial weight of the law’s penalties only fall on the less powerful. They might not fall on the very smallest parties—unless someone needs to be singled out as a punitive example.

“Tolerated use” is basically a way of trying to carve back the boundaries of fair use. One of the strongest arguments for fair use is that without it, we’re all infringers, every day that we use our phones or computers. Fair use is the most important reason that copyright law isn’t a mere formality, like an etiquette manual.

To be a bit reductionist about it, you can have one of two perspectives on the state of copyright law. On the one hand, you can believe that fair use is a highly limited doctrine, that it shouldn’t be applied to uses outside of teaching, research, news reporting, and so on. If this is so, then we live in a world awash in infringement, where the law is being violated every minute of every day by nearly everyone in the country. The cache copies and buffer copies made in your computer as you read this; the show you recorded last night to watch this weekend; the 4-line Ogden Nash poem you quoted in its entirety on Facebook—all unenforced illegalities. Enforcement of copyright law in this world is a futile effort to make some symbolic effort within a sea of infringement; a sporadic attempt to hit whatever target seems most appropriate at the time; the occasionally arbitrary, frequently situational enforcement of a mythic, beleaguered Old West marshal.

My vision of the state of copyright law is less apocalyptic; I think that it works, mostly, with some serious problems. If fair use works the way I think it does, then the daily activities of ordinary people like you and me aren’t infringing; there’s a number of violations that happen day-to-day (a lot of those torrents are infringing), and there’s a number of structures within the law that are a bad fit for today’s world (exceptions for RAM copies of computer programs, but not other types of authorized digital works), but on the whole, it is a comprehensible and functional legal system.

So while I think that there are things about copyright law that are broken, they can be patched, and in many cases have been patched, by fair use. In an environment where our common-sense judgment of everyday activities can mostly square with the complexity of the law, it doesn’t matter whether you’re a high school student posting gifs on tumblr, or House Judiciary staff posting those same gifs—you’re still making the same fair use, and the same protected speech.


Image credit: Wikimedia Commons user Óðinn