house sealThe House Judiciary Committee IP Subcommittee held a hearing this afternoon on “The Scope of Fair Use.” The witness list and the witnesses’ written testimony are online here. I was live-tweeting it, more or less, and you can see my stream of occasionally-less-than-objective descriptions of the proceedings here. As we mentioned earlier, our own professor Peter Jaszi was on the panel.

As it turns out, Professor Jaszi’s presence was extremely fortuitous, as the hearing turned out to be a hearing not so much about fair use generally, but about the merits and demerits of the courts’ use of “transformativeness” analysis as a way of making sense of fair use. The T-word was first deployed by federal judge Pierre N. Leval in a landmark law review article in 1990, and was shortly thereafter incorporated into the Supreme Court’s landmark fair use decision, Campbell v. Acuff-Rose.

In a nutshell, a use is transformative if it takes an existing work and adds new meaning, new expression, new context, or uses it for a new purpose, different from its original purpose, so that the public benefits while the author is not (cognizably) harmed. (Several representatives and witnesses commented on the ineffability of transformativeness. Was that so hard, y’all?) This mode of thinking about fair use is one that professor Jaszi has defended vigorously and helped to operationalize in the many best practices codes he’s helped facilitate over the last decade or so.

Fittingly, then, Jaszi opened the hearing with a paean to fair use in general and to transformativeness in particular as a “unified field theory” that has helped courts make sense of the doctrine and apply it in ways that foster innovation and serve the public interest. Invoking Swatch v. Bloomberg a decision handed down just yesterday in the 2nd Circuit, Jaszi made the case for the theory as a user’s right, as a comprehensible approach for courts, and as one that should be allowed to continue to evolve in the courts without legislative interference, other than perhaps to lower damages or preempt contracts that would otherwise deter fair users.

The rest of the witnesses were a tic-toc of for-and-against transformativeness:

  • June Besek of Columbia Law School’s Kernochan Center: AGAINST!
  • Naomi Novik, a fanfic author turned New York Times bestselling novelist whose Temeraire series has spawned its own community of fanfic authors: FOR!
  • David Lowery, a lecturer in the business school at my alma mater (the University of Georgia) and a veteran of the music business: AGAINST!  (Well, presumably against. It’s actually not clear to me Lowery had much to say about fair use. His schtick isn’t really about fair use at all, so his testimony was a little tangential – he focused on sampling and lyrics sites, roughly 1/1000th of the fair use universe.)
  • Kurt Wimmer, General Counsel of the Newspaper Association of America (to whom I owe an apology for getting his name wrong and occasionally calling him “news guy” on Twitter): NEUTRAL!

Generally, in response to Professor Jaszi’s picture of empowered users, innovation, and coherent courts, the enemies of tranformativeness argued that the concept had allowed courts to overstep their bounds and users to engage in mass digitization and re-purposing when fair use is really only supposed to allow one-by-one creation of new works that incorporate parts of old works. To paraphrase professor Besek, fair use should allow creation of new works, not new business models.

The questioning from members of Congress followed familiar patterns. Former chairman and senior GOP member Howard Coble (R-NC) asked some fairly neutral and open-ended questions which actually seemed designed to learn from the panelists – What do you think “transformative”means? Should we codify it? The answers were predictable: Wimmer liked a case where newspapers won (Swatch) but disliked the case where a licensor lost (Bill Graham Archives). Lowery thinks uses by people who could pay him but don’t (lyrics sites) are not transformative, but uses by scholars are fine.

Chairman Goodlatte also asked probing, informative questions. He worried whether the original artist should get a share of revenue for remixes (as they typically do). He asked the rest of the panel to react to Professor Jaszi’s optimism about fair use, and they reiterated their positions. He also raised the question of commercial use as a kind of red flag that might undermine fair use. It was disappointing that no one pointed out what Professor Besek herself had acknowledged, that courts have widely recognized that many commercial uses are fair.

The balance of the questions were deeply partisan, with members either tossing softballs to allies (Rep. Chu to Lowery: “Tell me more about these awful lyrics sites you mentioned!”) or trying to play hardball with perceived enemies (Rep. Marino to Prof. Jaszi: “Is it your position, sir, that anything goes and everything is fair use?!?”).

Rep. Deutch, whose district includes Walt Disneyland, took it to another level, engaging Prof. Besek (who was commissioned, along with several of her colleagues at the Kernochan Center, by a rights holder group in Australia to prepare a paper on exactly this topic) in a colloquy designed to establish that fair use cannot be “exported” via trade agreements. He carefully avoided questioning Prof. Jaszi, who was a co-author (with Gwen Hinze and Matthew Sag) of a powerful rebuttal of the Kernochan report.

And then, as soon as it had started, the hearing was over, in plenty of time to clear the gallery for the State of the Union. Thankfully, the consensus on the panel, despite disagreement on many details, was that fair use was generally a “good thing,” and that it should continue to evolve as a common law doctrine without any intervention from Congress. Amen.