July 11th is “Fair Use Day” – a day, according to its founder, to “[e]xercise your Fair Use rights or contact a corporation or government of your choosing and let them know you want Fair Use rights and you want them protected – demand your Fair Use rights!”
Public Knowledge would not want to miss the party, and we can't think of a better way to celebrate than by discussing H.R. 1201, a.k.a. the FAIR USE act. We noted previously that while the bill lacks the full flexibility of fair use (maybe next July 11th!), the specific uses it allows for are such no-brainers that the content industry would look silly opposing them.
It turns out that opponents of the bill who try other lines of attack can end up looking just as foolish. Consider this recent post on the blog “PhotoAttorney,” run by Carolyn Wright. The post is entitled “Alert – Another Bill Seeks to Reduce Photographer's Rights” and bemoans a provision of the FAIR USE act that shifts the burden of proof for knowledge in secondary infringement cases. The complaint is that photographers would “have to prove that the secondary infringer had knowledge that the act was unlawful.” This is a serious micharacterization – plaintiffs would have to prove only that a reasonable person should have known that the act was unlawful given the circumstances, rather than that the defendant actually did know. “It is difficult to see,” the post goes on, “how the bill 'promote[s] innovation,' 'encourage[s] the introduction of new technology,' and 'protect[s] the fair use rights of consumers[.]'” If Ms. Wright thinks it's “difficult to see” how protecting parties who unwittingly engage in secondary infringement can promote innovation, she might want to consider getting her eyesight checked.
Even her own hypothetical is revealing: imagine that a “photo processor scans a professional photographer's photo at a customer's request.” Ms. Wright is probably hoping her readers envision a photo processor brazenly making a scan from a book of professional photos – a situation where liability would be appropriate, but also a situation where the same facts that established that the infringement had occurred would be likely to establish that the photo processor should have known it was occurring. The leap of imagination that Ms. Wright apparently failed to make is to the scenario where a photo processor is asked to copy a loose, unidentified, but nice looking, photo. If every “Kinko's” in America had to make sure that every photo a customer wanted digitized was not copyrighted lest they be presumed liable for secondary infringement, the added costs and chilling effect on fair use rights is about as “difficult to see” as a hiding elephant. (The photo serves a dual purpose: Google Image Search provided it nearly free of context and tracking it down required several minutes of internet detective work. Should a photo services provider with hundreds or thousands of customers per day be required to perform a similar task for each and every photo?) Such a burden would also clearly stifle many innovative new technologies that may inadvertently aid in infringement.
Ms. Wright might want to celebrate Fair Use Day by burdening herself to rethink her position on the FAIR USE act. You might want to celebrate by letting your congressperson know that the FAIR USE act is important to you. Until next year, happy Fair Use Day from everyone at Public Knowledge!