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Celebrating Fair Use Week: An Interview With Peter Jaszi

Last Updated on March 2, 2018, 1:08 pm ET

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

There are several leaders and pioneers in the field of copyright fair use and Peter Jaszi was kind enough to agree to be interviewed for Fair Use Week.  Peter Jaszi is a professor emeritus at the American University Washington College of Law and an expert in copyright law and fair use. His distinguished career has included numerous projects designed to promote the understanding of fair use in various communities (readers of this blog will likely be most familiar with the ARL Code of Best Practices in Fair Use for Academic and Research Libraries). He is also the co-author of the book, Reclaiming Fair Use: How to Put Balance Back In Copyright, a new edition of which will be published later this year by the University of Chicago Press.

The full interview is rather long, so I wanted to pull out just a few excerpts.  If you want to read the interview in its entirety, in which we talk about everything from every day fair uses, misconceptions about the doctrine, best practices, and career advice, you can visit this post on Above the Law.

Peter Jaszi responding to criticisms about the uncertainty around fair use:

KC: I think there are some other common misconceptions about fair use. Let’s walk through a couple of them. How do you respond to criticisms that fair use is too uncertain and difficult to use because it’s analyzed on a case-by-case basis?

PJ: Fair use isn’t any more difficult to apply or uncertain than any other legal doctrine that requires us to apply a general standard to specific facts — negligence in tort law is an example.   I’d suggest that “certainty” isn’t (and probably shouldn’t be) attainable here. What we should want and can get is some level of predictability, based on accumulated legal precedents. Given the fact that most fair uses are never challenged, the case law doesn’t accumulate at a very fast rate. Since the Supreme Court’s big turn in 1994, there have been no more than 25 or 30 important appellate cases on the subject. Many specific areas in which fair use obviously applies, to at least some extent, remain unexplored by federal judges, and are likely to stay that way. But consumers of law (whether laypeople or lawyers) can and should reason by analogy to more-or-less like cases, and make sound predictions based on the methodology employed in those cases. That’s how law — and confidence in law — develops in our “common law” system, and after 25 years or so of the new fair use jurisprudence, we’re in a position to make accurate predictions about how a court would rule — in the unlikely event that it ever came to that — in the vast majority of specific instances. So I really wish we could put this particular misconception to rest — along with Lawrence Lessig’s famous quip that fair use is just “the right to hire a lawyer,” which wasn’t strictly accurate in 2004 and certainly isn’t today. Professor Lessig has disowned this dismissive take on the power of fair use, and the rest of us should, as well.

On software preservation:

KC: Currently, you are working on a project involving best practices in fair use for software preservation. Why is this an important project?

PJ: The first 50 years of software history are of enormous interest today. For those studying software itself (from cultural and technological perspectives), the ability to analyze and interact with vintage software is essential. The same is true, of course, where investigations of software-dependent born digital materials (from text documents to CAD files) are concerned. So finding, saving and making available old programs are crucial. In this race against time and the forces of deterioration, however, copyright is a barrier, since practically every action that an archive or library might want to undertake to build a software collection or make accessible is regulated by copyright law. That’s where fair use comes in, of course, and why we are excited to be working on a Code with members of the software preservation community under the auspices of the Association of Research Libraries, and grateful that the support of the the Alfred P. Sloan Foundation makes this work possible.

His favorite fair use case:

KC: One final question. Do you have a favorite fair use case?

PJ: From a purely sentimental standpoint, I’d say Authors’ Guild v. HathiTrust, where I had the honor to be part of a great legal team working for a wonderful client, the National Federal of the Blind. But taking a slightly more academic view, I’d probably say Bill Graham Archives v. Dorling Kindersley, a landmark 2006 Second Circuit decision that gave us the fullest glimpse we had had up to that time of where fair use analysis focused on the question of transformativeness was heading.