I was supposed to be on a panel called “Fair Use: The Media Balancing Act” at Gotham Media Ventures’ Digital Breakfast event two weeks ago.  The event was preempted by a snowstorm and rescheduled to March 22.  I’ll be on vacation then, so unfortunately I can’t make it, but the other speakers should make this a very worthwhile event.

In any case, I prepared a talk for this panel.  Since I can’t deliver it in person, here it is…….

The Washington insiders who influence the direction of copyright law have differences of opinion.  But most of them would probably agree with this statement, which paraphrases Winston Churchill: “Fair Use is the worst form of copyright balance except for all those others that have been tried.”

Copyright lawyers on both sides of the copyright wars tend to want Fair Use to remain more or less as is, so that they have some flexibility to argue their cases.  A few years ago there was a congressional hearing on Fair Use.  Apparently a member of Congress asked copyright experts from across the spectrum if they wanted Congress to replace the current principle-based system with a proscriptive list of which uses are fair – an analog, if you will, of George Carlin’s “Seven Words You Can’t Say on Television.”  Everyone recoiled in horror and said “NO!”

These people most likely imagined a world where two really bad things would happen.  First, the process of defining “uses that should be fair” takes forever, is sullied by other people’s entrenched interests, and is instantly obsolete.  Second, the power that lawyers have to argue their cases based on their versions of copyright philosophy goes away.

The first of these supposedly really bad things is something to consider.  But the second one has become an excuse for holding up a system that has overstayed its welcome.  A prominent pro-media-industry copyright expert told me recently that he advises his clients not to try to build a business based on Fair Use.   I sometimes work with startup companies; to most of them, Fair Use is such a risky  gray area that they don’t want to go near it.

There are people who claim that Fair Use is a vital bulwark against the chilling effects on innovation caused by some recent developments in copyright law.  They cite laws like the Digital Millennium Copyright Act or court opinions like the Supreme Court’s 2005 MGM v. Grokster as dampers on innovation.  And there have been various stories about how Fair Use enables innovation, such as the Computer and Communications Industry Association’s 2007 report Fair Use in the U.S. Economy, which claims that Fair Use contributed over half a trillion dollars to U.S. GDP growth from 2002-2006.

But I think it’s time to realize that Fair Use also chills innovation in its own way.  Fair Use is a trap door out of the technology world.  As distribution and usage of content online becomes ubiquitous and free in the digital age, it is just not practical to have to hire a lawyer and go to a court to decide whether certain uses are permissible.  It’s as if someone designed a car that required the driver to pull over, stop, and turn the wheels by hand in order to change direction.

Yet just as a stream flows around rocks, technology has a habit of flowing its way past human and legal boundaries.   Some technical systems have been created to decide whether content uses are permissible based on approximations of Fair Use.  One example of this is the combination of technologies that the Associated Press uses to find uses of its news content throughout the web, ranging from legitimate AP licensees to blatantly illegal copies of its content on blogs and so on.

The AP uses two primary technologies.  One is a set of content metatags, or microformat, called hNews.  hNews tags on news stories serve as “beacons” to a web crawler that goes out and finds them on the Internet.  They enable the AP to track where its stories are appearing on its affiliates’ sites, to give it feedback about the popularity and airplay of wire stories, and to find some non-legitimate uses.

However, savvy people and simple tools can easily remove the hNews tags from news stories.  For those cases, there’s a service from a company called Attributor, which uses sophisticated pattern-matching technology to crawl the web and find instances of known content.  Attributor looks at various factors including the context of the content (such as what site it’s on), how much of the content is there, and whether it includes proper attribution, to help it determine whether the use is legit.  Then it relays information back to the AP, which takes action it deems appropriate, including sending the offending site a notice offering licensing terms or asking for takedown.  In other words, this combination of technologies lets the AP make determinations about Fair Use based on automated educated guesses.

Another example is the terms of the Google Book Settlement.  Lawrence Lessig expresses his concerns about this – and about Fair Use in general – in an article in a recent issue of The New Republic.  His concern about the Google Book Settlement is that it enables a privately controlled technical mechanism – the Book Rights Registry that the settlement would establish – to control terms of public use of content, potentially down to a minute level of detail.  To Lessig, that’s a chilling effect on Fair Use.  To me, it’s an inevitable result of private entities acting out of necessity in lieu of a system that doesn’t work.

Both of these scenarios are examples of private-sector accommodations working around the Fair Use system through technology.  More of this will surely happen over time.  What should be done about it?

Lessig tells of the need to simplify the system of copyright balance because the digital age has overburdened it.  I agree with this in principle, if not necessarily with the way he proposes to solve the problem.  I think it’s time to acknowledge the need to make copyright determinations accessible to the technological systems that increasingly dominate the distribution of content nowadays – and not just as educated guesses.

Now, I’m also not a fan of getting Congress to enshrine an exhaustive list of “uses that are fair” in law, fiddle with the list in triennial Copyright Office rulemakings, and so on.  Neither am I a fan of encrypting every bit of digital content and having some universal DRM rule engine decide what one can do with it.

Instead, I think it ought to be possible to invoke the 80/20 rule by creating some clever choke points that are technologically implementable and that apply to a sufficient number of cases.   I am not sure how such a system could be designed, but I bet it can, through experimentation and techniques such as use case analysis.

The Creative Commons scheme is an interesting starting point, but it avoids the elephant in the room: commercial content.  A few media companies I know are exploring how they can use Creative Commons, and the Creative Commons organization itself came up with an add-on scheme called CC+ to extend the system for commercial content (among other things).  But CC+ is a halfhearted feint; it doesn’t go far enough by itself to be effective, and it hasn’t seen much uptake in the market thus far.

Here are a few more places to look for inspiration on making Fair Use more practical to implement in technology:

• The private copying system used in most of Europe, where people have the right to make copies of content for their own personal use, period.  (Leaving aside the virtually unfathomable European levy system.)
• A 2004 law in the state of California, SB 1506, which appears to have escaped most peoples’ notice and is now sunsetted.  This law required people who send content over the Internet to more than 10 recipients to contain the sender’s email address and the title of the work.
• A technology invented recently at Sun Microsystems Labs called MMI, for Mother May I.  MMI is a protocol that enables content users to ask permission of the content owners to do certain things to or with the content.  MMI includes a way of expressing the would-be user’s intent regarding the content.  The noted technologist Jaron Lanier describes a very similar scheme in his excellent new book You Are Not a Gadget.

It would be nice to imagine an infallible and instantly-accessible copyright deity to decide the fairness of every use; such a thing is inconceivable under the current Fair Use system even as it is more badly needed every day.  It’s time to admit that the situation will only get worse, and to try to find ways of making the system more compatible with the technology that is dominating the ways that we create and distribute copyrighted content.