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Better Understanding of Fair Use, Tech Missing From Copyright Hearing

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When a Congressional committee hears from various witnesses Tuesday about the subject of copyright fair use, one of the more important details is who won't be represented at the witness table: technology innovators.

Fair use is one of many ways Congress has ensured appropriate balance in our copyright law. Copyright restricts both freedom of speech and competition in the short run -- in the hope of promoting progress in science and arts in the long run. Fair use is an essential and flexible rule that ensures that socially desirable or transformative uses of copyrighted works can occur, even if they are unauthorized. As the Supreme Court recently pointed out, fair use helps reconcile copyright's imposition on the First Amendment, and its burden on free-market competition more generally, by ensuring that " the monopoly privileges that Congress has authorized... ultimately serve the public good." Since video cassette recorders were introduced in the 1970s, the fair use doctrine has helped to ensure that new technology innovation that involves copying isn't mistakenly lumped in with piracy.

While Congress will hear from some individual artists and respected academics, these perspectives do not necessarily convey the extraordinary extent to which technology depends on fair use. To be fair, newspapers will also be represented at Tuesday's hearing, but newspapers generally do not represent the cutting edge of technology.

For example, it may be hard to believe, but 30 years ago last week the Supreme Court came one vote from labeling home video a "pirate" technology. Were it not for Justice Stevens' foresight and the fair use doctrine, an entire industry and a generation of technological innovation would have been sacrificed on the altar of copyright protection. (Ironically, home video turned into Hollywood's cash cow less than a decade after movie studios had attempted to strangle it in the crib.)

The same fair use principle that saved home video has also served MP3 players, DVRs, smartphones and a considerable portion of modern Internet functionality, like cloud computing, that we depend upon today. In recent years, we've seen courts invoke fair use to validate a variety of transformative, socially valuable services, including online search engines, including image and book search; commercial-skipping and time-shifting with DVRs; and a service that compares students' papers against a database for plagiarism (who, understandably, might not want to authorize use of their papers to prevent cheating).

Of course, fair use benefits industries far beyond the technology sector. While fair use has always been recognized as protecting widely-enjoyed television programming like The Daily Show, The Colbert Report and Saturday Night Live, its significance extends far beyond parody. Just in the last year, the fair use doctrine came to the aid of movie studios, a Broadway musical, a rock band and the NFL, all of whom faced baseless piracy accusations. Woody Allen's Midnight in Paris led to a lawsuit because the actor Owen Wilson quoted nine words from the author William Faulkner. (Yes, you read that right: nine words.) The musical Jersey Boys was sued for including seven seconds of a 1960s TV program. The NFL was sued because online footage from old football games showed brief glimpses of the original Baltimore Ravens logo -- a logo that had been ruled to infringe copyright after the season was played. In each case, courts sided with the defendants and threw out the case on the basis of fair use. That such lawsuits were brought in the first place is a sad commentary on the state of our intellectual property system, but at least judges were able to resort to the fair use doctrine to reject the most absurd claims.

As Congress continues what will undoubtedly be a long conversation about modernizing our nation's copyright law, it should go without saying that a principle that prevents lawsuits over nine-word quotes, seven-second clips and fleeting glimpses of team logos should figure prominently in the conversation -- particularly when that principle is also a cornerstone of modern Internet law. Not only does fair use serve extensive societal interests, it has been a commercial boon to the U.S. economy -- something policymakers should be interested in protecting.

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