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I met Wendy Seltzer a few years ago while Holly and I were volunteering at the EFF-Austin booth at SXSW Interactive. It was a little hectic, and I didn’t know who she was, except that she was a very pleasant person involved with EFF. I later realized her identity- one of EFF’s attorneys and responsible for some really interesting sites, like Chilling Effects. Recently, I’ve been following her fair use issues with the NFL on YouTube. The following article talks a little bit about the circumstances, and then refers to comments from representatives of the NFL.

http://www.nj.com/starledger/stories/index.ssf?/base/news-11/117618181657770.xml&coll=1

The comments it refers to are found here:

http://blogs.wsj.com/law/2007/03/21/law-professor-wendy-seltzer-takes-on-the-nfl/#comments

I found the comments from the NFL interesting for a number of reasons. First, they object because the clip Wendy Seltzer used contained more than the copyright notice. Seltzer explains that she included additional material to show the context of the notice. And although they objected to that, I find Seltzer to be the more credible person to determine how her use fulfills the educational goals. That’s actually a twinge I have about some evaluations of fair use and the first factor. How much influence does the content owner have in that evaluation in court? How much weight is the opinion of the educator given? I don’t know, but I think it will be worth looking at!

Second, the assertion that “fair use is a defense to infringement, not a right.” I’ve mentioned that a bit before. Although the assertion that fair use is an affirmative defense is a pretty common assertion from various people (often including attorneys, at least one Supreme Court case, some representatives, etc.), others assert that fair use is a right representing first amendment concerns in copyright law (including some attorneys, some representatives, some organizations, and so on). At any rate, the notion of an affirmative defense has rhetorical value for proponents of a more limited fair use, and the notion of fair use as a right serves the same purpose for proponents of a broader fair use. Changing the view tends to shift where the burden of proof lies. And some also believe that the two views are not necessarily mutually exclusive, that fair use can be a both right and a defense. Things to look for are where and when those terms are used. As it so happens, I interviewed Wendy Seltzer in 2004 and asked her that question.

Ovalle: That leads me to another question. Is fair use a right or an affirmative defense?

Seltzer: Well, the way the statute is worded, fair use is not an infringement of copyright. We’ve argued that fair use is an important- the weight of the First Amendment interests are protected in copyright law. The first amendment of course, says Congress shall make no law restricting freedom of speech or of the press, and copyright law is quite explicitly a restriction on speech. We’ve said that the two are compatible because copyright law has the fair use exception and that in fact the fair use exception is required by the first amendment. We’ve been making that argument the courts have looked at it so far and said that the first amendment doesn’t require that you have access to the best version of the best fair use possible. I think that as we move into new technologies that give publishers and authors better means of expression fair use has to keep up. The public shouldn’t be left behind as the publishers move on to new technologies and expression, but that we should in fact have fair use of the same technologies.

I also interviewed Georgia Harper that year, and she, too, had some interesting things to say.

I have seen that argument too, and I have to be honest that it’s not clear to me what the basis is for making that distinction. The statute, if you try to derive that from the statute. I don’t understand. You can go either way. It simply says, despite what it says in 106, the use of a work for scholarship, commentary ,criticism, is not an infringement. That’s all it says. It doesn’t say “it shall be an affirmative defense to infringement that…it was fair use…” It doesn’t say “you have a right to scholarship, criticism,” it doesn’t use those terms at all. It doesn’t talk about defense or rights. It just says it’s not an infringement. So what people use to get those other two positions, I’ve never been convinced that either one of those deductions was well founded.

I should ask them if their opinions have changed at all. ^_^ Of course, that all points to the obvious- words are important, both in the court of law, the news, and other venues.

I don’t entirely understand why they phrased their third point the way they did. If Professor Seltzer had wanted to do what they suggest would have made her use more of an educational use, then she could have taken advantage of section 110, either showing an analog version of the clip face to face in class or using the TEACH Act provisions to show the clip. Obviously, she knows that she was relying on fair use, and says as much in the next comment.

The final distinction- whether or not the NFL knowingly materially misrepresented their second takedown, is worth looking at. Seltzer believes they did; they state that they were acting in good faith. The NFL has since withdrawn part of their objection- but they still want her to remove everything but the copyright notice, bringing us to the first point again.

My broader research interest isn’t whether or not the given act is legal per se, but what the effects of the law are on practice. That deals as much with perception of the law as anything else. This situation is very informative in many ways- expressing the views of at least one type of content owner and a strong proponent of a broader fair use. Now, what does it all mean for the rest of us?