Is Internet expression a fundamental right?   Certainly a subset of the modern generation has  demonstrated an irrational sense of entitlement about free content, to the detriment of media companies that have tried to provide it like the New York Times, but parts of copyrighted material have always been allowed under fair use.    What if court interpretation of fair use has changed?

University of Arkansas law professor Ned Snow says current judicial interpretation of fair use, a 150-year-old doctrine that allows people to use copied material in their speech, has become so constricted that it inhibits speech. 

The conflict between copyright and fair use has a long and tortuous history. Recent developments in the burgeoning digital society have made that conflict even more contentious, as Internet users employ existing expression to create new expression like YouTube videos. By participating in such activity, common users are becoming vulnerable to copyright lawsuits. 

The only protection afforded users is the fair-use doctrine, which allows a person to copy another’s expression without permission if the use results in a transformative, new expression. However, knowing the boundaries of fair use is anyone’s guess, Snow said, and this confusion exists among copyright lawyers and judges. As a result, many seemingly innocent users, such as a mother who posted a 29-second video of her toddler dancing to a poorly transmitted Prince song on YouTube, find themselves in the thick of a conflict with copyright holders.

“The conflict between copyright and fair use is a conflict between property rights and speech rights,” Snow said. “On the one hand, copyright holders are trying to enforce their rights to exclude others from copying their intellectual property. On the other hand, copiers who use their expression fairly are trying to exercise their right to speak. Fair use of copyrighted expression constitutes speech, and fair-use speech merits protection much like political or religious speech.”

As an example, Snow points to the recent presidential campaign in which advertisements for candidate John McCain copied portions of McCain’s own televised speeches, as well as some televised expressions from Barack Obama, McCain’s opponent. The material used was a copy of another’s copyrighted material, all for the purpose of illustrating a political viewpoint. Copyright threats were made, so the ads were pulled.

This is common, Snow said. The mere threat of suit by copyright holders, regardless of how original the new expression may be, quickly silences users who otherwise would face a costly battle to prove their speech was fair. 

At the heart of this battle, Snow contends, is copyright law’s requirement that copiers prove that their use of another’s expression is fair. This can be very difficult to prove, because the copyright doctrine is purposefully vague to allow for flexibility in application to protect circumstantial speech interests of fair users. But in practice, that vagueness creates a burden of proof for the fair user. Silence becomes preferable to uncertainty.

The burden to prove that copying is fair or unfair inhibits users from speaking because the standard is vague, Snow said. He argues that copyright holders – not fair users, as is the case in American courts today – should bear the burden of proving that users’ copied expression is not fair.

“That woman was speaking when she posted the YouTube video of her toddler,” Snow said. “She wanted to communicate how her toddler was acting while the background music was playing. Despite the fact that such use was likely legal under fair use, the record company demanded that the woman’s posting be removed for her unauthorized use of the song.”

The overall effect chills speech, Snow said. Given the vague standard of proving fair use, along with the cost of a copyright attorney, fair users often do not go to court to find out whether their use was fair. It is much less costly to be silent, so they self-censor.

The competition between copyright protection and free expression existed long before digital files and the Internet, and Snow reached back more than 150 years to document the history and evolution of the tension between the two. His research revealed that the burden to show whether a copier’s use of expression was fair initially lay with the copyright holder. For more than a century of common law, courts provided a liberal doctrine of fair use by imposing the burden of proof on copyright holders.

Copiers of expression were broadly protected from liability because the copyright holders had to prove that the copiers had made unfair use of the original expression. In this manner, courts conceived of the relationship between copyright, speech and fair use in a way that defined fair use as a right to protect speech.
By the 1950s, however, fair-use protection ceased to be broad, and the burden of proof began to shift to the user. Courts were influenced by commentary that framed fair use as an excuse for infringement, seemingly arising from the implied consent of the copyright holder.

“This shift in the burden was a mistake,” Snow said. “Based on an incorrect conception of the doctrine, courts began to construe fair use in a way that ignored the speech interests of fair users by placing the burden of proof on them.”

The evolution of the conflict has led to a situation in which fair users must demonstrate the legitimacy of their fair-use speech. As part of the burden of proof, they must establish facts in response to plaintiff’s allegations, even when those facts raise inquiries that are speculative and subjective in nature. The process of defendants’ demonstrating the legitimacy of their fair-use speech can be difficult, Snow said, because the criteria for fairness examine whether the use is “transformative” – meaning the use must add something new to the original expression – and whether it significantly affects the value of or potential market for the copyrighted work. Both of these inquiries often turn on subjective opinion.

Snow argues that because these factual issues are often speculative and subjective in nature, they are nearly impossible to prove. The more subjective the inquiry, he said, the more likely it is that reasonable minds may disagree on the correct interpretation of the evidence. And where competing interpretations exist, each of which is reasonable, the burden weighs too heavily against the party charged with persuading the fact-finder that the evidence must be interpreted one way. For these reasons, Snow concluded, responsibility of proving unfair use should be returned to the rights holder.