As we report on this month’s front page, the Annenberg School for Communication at the University of Pennsylvania hosted an important and timely conference not long ago: “Knowledge Held Hostage: Scholarly Versus Corporate Rights in the Digital World.”
The educational value of printed material is well known and long established. Now comes scientific evidence that certain digital content also can materially enhance learning (see Best Practices, page 38). Hard on the heels of a study showing that selected video clips can lift reading achievement, new research finds that such clips can have the same salutary effect on math scores.
Upon reflection, however, the provocative title of that Annenberg conference might be a little off the mark. Knowledge, it seems to me, is more often under a kind of self-imposed house arrest, owing to an overly timid approach to “fair use.” Now, some say fair use is a highly complex subject. But like the music of Wagner, it probably isn’t as bad as it sounds. (For a lucid fair-use primer, check out this site: http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm) The main difficulty with fair use probably boils down to one thing: uncertainty.
That’s not surprising. Key groups of corporate copyright holders have mounted campaigns cynically intended to heighten uncertainty and discourage fair use. Just consider the highly publicized file-swapping lawsuits of the record industry.
There’s even a term for such litigious intimidation: “slap suits.” This is where a zealous plaintiff hails defendants into court with little or no regard for the legitimacy of the cases. Prospective defendants learn of the tactic, weigh the likely expense and heartache of a slap suit, and decide to forgo the suddenly too-risky behavior.
“Better safe than sorry” becomes the mantra, and learning ultimately suffers. Never mind that such suits have little or nothing to do with actual violations of copyright law.
Annenberg conference participants came up with some possible remedies to this state of affairs. One scheme would involve establishing a team of lawyers who would vet educators’ proposed uses of copyrighted material in advance and agree to defend against any lawsuits resulting from approved uses.
All cures are worth consideration, I suppose, but a more immediate solution might be to use institutions and strategies that already exist. Educators and their advocates could, for example, get behind proposed legislation such as the Digital Media Consumer Rights Act. (See Congress eyes ‘fair use’ access to DVDs, eSN, May 2004; http://www.eschoolnews.com/news/showStory.cfm? ArticleID=5065). Provisions of this bill would sharply reduce the uncertainty surrounding the use of digital content.
Our courts also could be more proactive in discouraging intimidation tactics employed by the powerful. Toward that end, let a thousand amicus briefs bloom.
One especially effective judicial remedy for “slap suits” would be for judges to slap back. Think about the Mattel Corporation, maker of the Barbie doll, which recently found itself on the short end of a stout legal stick.
Two years after losing a case against a songwriter for using Barbie in the lyrics of a parody song, the toymaker brought yet another suit against artist Tom Forsythe for using Barbie dolls in artistic presentations. Critics called it a blatant attempt to bury the artist’s fair-use rights under a mountain of legal bills.
The 9th U.S. Circuit Court of Appeals ruled against Mattel but did not grant court costs and attorneys fees to the artist. Upon remand to the district court, however, the judge there awarded Forsythe $1.85 million in fees and expenses.
In explaining that harsh ruling, Judge Ronald S. W. Lew offered a point all prospective “slap suit” plaintiffs would do well to ponder. Mattel, said Judge Lew, “is a sophisticated entity with access to good legal representation. Plaintiff’s claims were not in an unsettled area of law and had little likelihood of success. Plaintiff’s copyright claims, therefore, were frivolous.”
Slapping the slapper should make even deep-pocket, would-be corporate plaintiffs think twice.
Writers, producers, and (especially) publishers have a right to make an honest profit from their creations. But without effective education, consumers of copyrighted material eventually could give way to a population of Kens and Barbies. In that plastic world, copyrights might be safe, but only because the guys and dolls would have scant use for intellectual property.