Today, we're going to talk about the place of fair use. This is one of a series of lectures where we're going to discuss fair use. It's an important concept, and one that has a special place in the analytical framework that we've been laying out for you during the course of this class. So, what is fair use? A lot of people think they know what it is and, of course, we do too, so [LAUGH]. >> Think we do, you mean. >> Yes, yeah, we're going to give you our take on that. First of all, fair use is an equitable doctrine, and the idea there is that, some things in law are more cut and dry than others. In, in, in the US long ago there were, in fact, different courts, some that dealt with the more cut and dry issues of law and some that dealt with the more fuzzy issues of equity. Today, we only have one system of courts, but there are still parts of the law that are much more laid out, and other parts of the law where there is a little more play for analysis and reflection, and fair use is one of those places. At the same time, fair use is part of copyright law. It is not it doesn't stand outside of copyright law any more or less than the parts of copyright law that are extremely detailed and specific about how it works. It started out as a judge made doctrine. The judges saw that there was a need for this sort of way of an, analyzing situations that come up in copyright law, and it was later codified by Congress. It's intended to be a part of the law that allows for situations that couldn't be foreseen when the law was written, and, and that's one of the things that is its strength but also makes it really difficult for people. >> Okay, okay. >> When they're trying to learn how to use it or even when they've been using it a long time and they're, they're looking at a situation that's particularly thorny. Fair use is intended to be used with a balancing of the four factors. And, one of the questions that comes up a lot is when can I use fair use? What you see on the slide are the list of uses in the statute where fair use can be employed. Now, this list is intended to be descriptive, not prescriptive. It's not a, bound list of only these situations where fair use can be used. It can be used in situations that are like this or akin to this, but not, they don't have to be exactly equal to this. Remember that fair use is intended to be flexible. These are situations where as a society, we have an interest in curtailing the exclusive rights of the copyright holder because of education, because of criticism, because of the right to first amendment right to parity. All of those sorts of things are important. They can't be locked down in a single checklist, so the statute talks about them in, in broader terms. These are also situations where the purpose is one that we want to encourage or where we want to encourage freedom of speech. >> That's right, Ann. These are all intended, also, for situations that are less detailed and well-defined than many of the other exceptions. As we've said in previous talks, lots of the exceptions are kind of check lists of requirements, and you have to meet all of them. But, fair use doesn't work that way. As you've said, it's a balancing test. It's a test that's very attentive to the specific circumstances of the particular use. And the factors are really an attempt at the court to tell the courts how to look at the particular facts that are surrounded challenged use, and make a decision of whether or not it's fair. That means that fair use is really good when we're talking about new technologies, when we're talking about new modes of expression. How do the rules for a published book apply to Twitter, for example? It's a new mode of expression. It's not been built into the law. It's not something Congress could have anticipated in 1976 when they adopted our current contract, copyright law. But fair use is the provision that they made to make it possible for courts to say, this use is as you say socially beneficial. It accomplishes one of these educational or free expression purposes that are so valuable to us that we're going to permit it. And that's really what the balancing test is supposed to do. One of the interesting things about fair use is it, it can be used in tandem with other exceptions in the law, particularly the educational exception. For example, section 108 which gives rights to libraries to make copies for the purpose of preservation, interlibrary loan, that sort of thing actually contains a clause that says nothing in this section curtails the rights under fair use. So it explicitly says to us that libraries can do the things that are authorized in 108, but can also rely on fair use if they need to. Once again, that gets us back to, what are the things we can't know about now in 1976 as we're passing the law that we still want people to do. 108 includes a lot of things libraries want to do, but not everything, and so fair use is explicitly still available to us. Another example would be in the face-to-face teaching situation, where we know we can show a movie or act out a play, because Section 110(1) tells us we can. But what about something else, that's maybe not included in 110(1), that's not a public performance. Suppose I'm reading the newspaper one morning, and I see an article that's exactly what I need to stimulate a discussion in my class this afternoon. 110(1) is not going to let me make copies of that article in order to distribute it to all my students, but fair use certainly will. So fair use, again, is filling the gaps where the exceptions, the other exceptions, don't quite go far enough. And I think it's a real sign of the wisdom of Congress. Even though sometimes it makes me crazy trying to apply the factors- >> Mm-hm. >> And do the analysis because you never do have certainty. But I think it illustrates the wisdom of Congress to give us this kind of flexible safety valve.
