Book review

Reclaiming fair use: How to put balance back in copyright, by Patricia Aufderheide and Peter Jaszi

Joshua Johnson

University of Minnesota, Morris, Minnesota, United States

[0.1] Abstract—Patricia Aufderheide and Peter Jaszi. Reclaiming Fair Use: How to Put Balance Back in Copyright. Chicago: University of Chicago Press, 2011, paperback, $17.00 (199p), ISBN 978-0-226-03228-3.

[0.2] Keywords—Codes of best practice; Copyright; Digital copyright; DMCA; Fair use

Johnson, Joshua. 2013. Reclaiming Fair Use: How to Put Balance Back in Copyright, by Patricia Aufderheide and Peter Jaszi [book review]. Transformative Works and Cultures, no. 14. http://dx.doi.org/10.3983/twc.2013.0489.

Patricia Aufderheide and Peter Jaszi. Reclaiming fair use: How to put balance back in copyright. Chicago: University of Chicago Press, 2011, paperback, $17.00 (199p), ISBN 978-0-226-03228-3.

[1] Patricia Aufderheide and Peter Jaszi's 2011 text Reclaiming Fair Use: How to Put Balance Back in Copyright offers a deeply valuable discussion of copyright law, creative practices, and the place of fair use in the life of the digital citizen. Though nominally a how-to book, Reclaiming Fair Use provides a detailed historical narrative of fair use and copyright law. In addition, it is part educational tool kit for individuals and communities in need of fair use help and part analytical history for scholars interested in the origins and ideological ramifications of copyright law. Although Aufderheide and Jaszi's text is important in its own right, the recent round of DMCA exemptions and the discussions surrounding them give this book a special significance and importance. The 2012 exemptions upheld the previous rulings that allowed "college and university professors, film and media studies students, documentary filmmakers, and noncommercial vidders" to circumvent DVD encryption for fair use reasons and also expanded the list to cover "K-12 educators, all college students, multimedia e-book authors, and professionals who have been commissioned to make videos for nonprofit purposes" ("2012 DMCA Rulemaking," https://www.eff.org/cases/2012-dmca-rulemaking). Reclaiming Fair Use is a necessary text following these exemptions, especially since Jonathan McIntosh, a well-known political remix artist and vidder who testified at the DMCA hearings, has recently been plagued by several takedown notices from Lionsgate, mediated through YouTube, for his fair use vid "Buffy vs. Edward." Aufderheide and Jaszi's text is an accessible and useful way to begin understanding these significant events in the status of digital copyright law in the 21st century.

[2] Reclaiming Fair Use includes exercises or activities meant to practically test the reader's knowledge of fair use. Aufderheide and Jaszi have titled these small divergences "Fair Use: You Be the Judge," and each one features a scenario in which a creator/educator/artist is attempting to negotiate copyright law in regards to his or her current activity. The authors invite readers to make a decision based on the material already covered, which allows for a short, fun method of applying the concepts in Reclaiming Fair Use. In addition to these exercises, Aufderheide and Jaszi include short "True Tales of Fair Use" to liven up sections of the text that are necessarily dry or lengthy. One such "True Tale" chronicles the story of Sut Jhally, a media studies professor who runs the Media Education Foundation. Jhally describes how the MEF, a group that extensively utilizes fair use, began in the 1980s when he developed some video materials for a course he was teaching at the time. Unfortunately, Jhally's videos caught the attention of MTV, who sent him a cease-and-desist letter. Far from ceasing or desisting, Jhally went on to assert his rights under fair use and form the MEF. Jhally's story is especially useful for the project of Reclaiming Fair Use because it provides a narrative in which a citizen successfully navigates the seemingly labyrinthine realm of digital copyright law. If Aufderheide and Jaszi's goal is to educate the average digital citizen to a point where he or she can at least interact with media without fear, then stories like Jhally's provide an encouraging model for people who have done just that.

[3] Following its 10 chapters (plus introduction), Reclaiming Fair Use contains a robust set of appendices, which include the Documentary Filmmaker's Statement of Best Practices in Fair Use, a template for individuals or communities interested in creating their own code of best fair use practices, and a discussion of the myths and realities of fair use.

[4] The introduction and first two chapters set up Aufderheide and Jaszi's primary point, which is that the combination of strict copyright law and weak fair use creates a culture whose very notion of creativity is truncated and restricted. The authors draw on the poet William Blake's image of "mind-forg'd manacles" to characterize the ways in which a culture that does not utilize fair use actually hobbles its present and future possibilities (ix). In both the first chapter, "The Culture of Fear and Doubt, and How to Leave It," and the second chapter, "Long and Strong Copyright: Why Fair Use Is So Important," Aufderheide and Jaszi mine the image of mind-forg'd manacles to create a sense of cultural exigency for a deeper understanding of fair use. Indeed, the authors argue that a public that has knowledge of fair use can ultimately break these figurative manacles and generate a healthy, creative culture. To support this belief, Aufderheide and Jaszi argue for a return to a copyright system based on providing "incentives to create culture," which can't be done if future creators don't believe they have access to current cultural material (16).

[5] Chapter 3, "The Decline and Rise of Fair Use: The Back-Room Story," chapter 4, "The Decline and Rise of Fair Use: The Public Campaigns," and chapter 5, "Fair Use Resurgent," each charts the path fair use has taken in the past and present of copyright law. Fair use, Aufderheide and Jaszi argue, has had a rocky and erratic trajectory in the history of copyright. The authors paint a detailed picture of the large business interests that fought to keep copyright long and strong as well as the public, sometimes grassroots, groups that rose up in opposition to form what is often known as the copyleft. In chapter 5, Aufderheide and Jaszi strike on a position they uphold throughout the rest of the book, which is that fair use allows for major progress via changes "in behavior in the field—rather than legislation" (72).

[6] The first half of Reclaiming Fair Use seems to be written for media studies scholars who are interested in the historical path fair use has taken to get to its current position. Despite the small activities sprinkled throughout, the majority of the first half establishes an audience most likely already familiar with both the subject of the book and the present discussion around fair use. Although Aufderheide, a communications professor, and Jaszi, a copyright law professor, are careful to limit legal jargon and carefully explain the bits of specialized discourse they do include, the primary thrust of their book does not seem to make much of an attempt to court or help the fan vidder, independent filmmaker, or remixer who might pick it up. Chapter 6, "Fair Use in the Courtroom: How Judges Think Now," chapter 7, "Documentary Filmmakers: Pioneering Best Practices," and chapter 8, "Codes of Best Practices Catch On," continue this trend of providing a mostly historical narrative, replete with detailed examples.

[7] The ninth chapter, "How to Fair Use," is set up to be the capstone of the book, and this is where the subtle potency of the book's structure is made manifest. It functions as a practical how-to guide for anyone interested in either utilizing fair use in an individual project or creating a code of best practices to inform an entire community of creators. Nearly everything Aufderheide and Jaszi include in this chapter seems self-evident, but it quickly becomes clear that the historical narratives they had previously been exploring are the key to understanding how fair use came to be; knowledge of these historical narratives becomes the primary way to arm oneself in the fight for fair use. Aufderheide and Jaszi's suggestion that fair use is a state of mind that can break the mind-forg'd manacles must be informed by a rigorous knowledge of one's own rights within the present and historical context of fair use. The authors are careful to point out that just as fair use is about behavior and not legislation, any attempt to affect the industry's approaches to fair use has to begin with the creator/artist communities who need fair use. Put another way, behavior leads to changes in (perception/enforcement of) law, not the other way around. In this way, the previous eight chapters provide the setup for Aufderheide and Jaszi to capitalize on a historical portrait of fair use in order to argue for the importance of copyright and fair use education.

[8] Aufderheide and Jaszi highlight documentary filmmakers' negotiations with fair use. This focus on documentarians offers insight into media creators' investment in notions of creative protection; further, the decision to focus on documentary filmmakers is especially useful because these artists are much more prone to encounter a seemingly endless stream of situations demanding fair use knowledge, making them good examples. Aufderheide and Jaszi do note, however, that documentarians can and sometimes do demonstrate the ways that creators who need fair use can also continue to privilege the "genius creator" mentality that led to the problems of a long and strong copyright in the first place. The authors note that although many documentary filmmakers express a need to gain access to the cultural material already circulating (commercially and noncommercially), they also often believe that their own work should be protected from those same kinds of access. Fan and game scholars have similarly identified some fan creators' ambivalence toward the practices of remix; for example, as Derek Johnson observes, some video game modders believe in their absolute right to video game content, and yet they don't want their own creations to be modded or remixed. Aufderheide and Jaszi negotiate these seemingly hypocritical notions of ownership and access carefully, though the validity of authorial claims aren't given much weight or consideration despite the authors' earlier apprehension to support an entirely open-source cultural space. Although Aufderheide and Jaszi seem uncomfortable with a culture free of authorial ownership, they are quick to move past a discussion of how these documentarians are contesting content ownership for corporate groups while maintaining their own authorial ownership of their own creations.

[9] Within the context of its field, Reclaiming Fair Use is perhaps most useful as a repository of textual references and aggregated research. Though the larger argumentative thrusts of the book may be a little too basic for experts in the field, Aufderheide and Jaszi do draw from myriad sources and studies, and that collection of research is a useful reference. For fan scholars and amateur creators of media, the real value of Reclaiming Fair Use is as an educational tool. For digital citizens, being able to create confidently is of paramount importance, and Aufderheide and Jaszi succeed in demystifying copyright law and fair use enough to give amateur creators enough knowledge to create with confidence.

[10] Though the larger message of Reclaiming Fair Use may get lost amid the examples and anecdotes, a focused reader with real concerns will certainly come away with good advice. Unfortunately, because Aufderheide and Jaszi have attempted to provide material here for both scholars of copyright law and amateur creators struggling with fair use, they are sometimes not fully successful in reaching each audience. This certainly doesn't mean Reclaiming Fair Use is completely ineffective, but it does mean that some readers may go through large chunks of text that may not be especially useful to them before getting to something more individually valuable. The authors' key points, however—that behavior is instrumental in influencing fair use/copyright law; that a basic working knowledge of fair use parameters is enough for an amateur creator; that the true danger of long and strong copyright law is a stunted creative culture—are echoed often enough to be efficacious. If Aufderheide and Jaszi's primary goal in Reclaiming Fair Use is to educate creator/artists to instill in them a sense of self-assurance to utilize their fair use rights, then the authors are ultimately successful.





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