The fair use dragon

Justin Levine over at Against Monopoly points us to a controversy at the recent San Francisco International Asian American Film Festival and reminds us that many content owners believe that fair use in U.S. copyright law is about as real as a mythical fire-breathing creature.

John Diaz of the San Francisco Chronicle explains:

"Slaying the Dragon: Reloaded," a compelling new documentary that critiques the portrayal of Asian women in U.S. visual media, has drawn protests from an unlikely quarter. It wasn’t from Hollywood, which was deservedly scoured for its depiction of Asian women in films from "Rush Hour 2" to "Sex and the City." It wasn’t from conservative commentators claiming political correctness run amok.

Instead, the objection to the documentary by Elaine Kim, a UC Berkeley professor of Asian American studies, emerged from six Asian American filmmakers just before its premiere last week at the San Francisco International Asian American Film Festival. Their complaint: that she used clips of their work without seeking their permission.

Never mind that fair use is written into the copyright statute and explicitly allows for “criticism” and “comment” and “scholarship.”  Never mind that Kim’s documentary seems to fall well within the guidelines laid out by the Documentary Filmmakers’ Statement of Best Practices in Fair Use – and that four separate companies write errors-and-omissions insurance for filmmakers based on the Statement guidelines.

No, the owners of films being criticized by Kim want to get paid:

The documentary addresses images of Asian American women in film, and while that is a worthy subject for a documentary and we respect Ms. Kim’s skills, as filmmakers, we do not consider this "fair use." Every filmmaker knows that he or she has to ask permission before using any intellectual property not belonging to him/her.

Using a clip of our films for review or promotional purposes is standard; however, using it in a documentary to illustrate that filmmaker’s point of view is a creative choice by the documentarian and therefore not subject to fair use.…We feel that Ms. Kim should either license our film footage properly for use in her documentary or remove it before the documentary’s world premiere at the upcoming San Francisco International Asian American Film Festival.

The Chronicle reporter was shocked, though readers of this blog shouldn’t be (unfortunately):

For me, as a journalist and champion of free expression, the upshot seemed clear: You cannot give the targets of social commentary the ability to veto it. Does anyone think for a second that the copyright holders of "Rush Hour 2" [which includes a scene where Chris Tucker and Jackie Chan are presented with a buffet of scantily clad Asian women] would consent to allow scenes of that movie to appear in Kim’s documentary at any price?

Kim did end up screening the movie at the festival, but

Kim deleted the clip from "The People I’ve Slept With."

"We did not remove the clip because we were concerned it was not fair use," Kim emphasized in an e-mail. "We removed it because we do not have the time or resources to fight against a filmmaker that personally attacked us and was being unreasonable."

Given the brutal economic and personal realities of litigation, Kim probably made the “right” choice.  Even if she found lawyers to represent her for free, fighting this in court would probably consume a large portion of her personal time and energy for years.  I certainly don’t blame her for her apparently rational choice.

Nevertheless, let us be clear:  this is what happens when copyright law is written to give one side (i.e., copyright owners) sweepingly clear rights but the other side (i.e., fair users) only an amorphous defense.  You don’t get copyright as “an engine of free expression”, as the Supreme Court continues to think.  You get censorship by people who think that fair use is a fairy tale.

The quality of music in a post-Napster world

David K. Levine over at Against Monopoly pointed me to a recent paper (PDF) by economist Joel Waldfogel at the University of Minnesota titled “Bye, Bye, Miss American Pie? The Supply of New Recorded Music since Napster”.  As the title implies, Waldfogel investigates the effects of Napster (and its file-sharing progeny) on the music industry:

Economists generally agree that monopolies are bad. Governments grant some of the basic textbook examples of monopolies for intellectual property, in the form of patents and copyrights. Their bad effects – allowing prices above marginal costs and therefore restricting the supply of output – are thought to be justified by their incentive effects on production. But apart from introspection and anecdotes, we don’t really know much about the effects of remuneration incentives on production in the music industry.…Does the prospect of greater rewards bring forth more music? If so, then the past decade, when the ability for sellers to generate revenue from recorded music has fallen as much as half, should be a dry period for music. This is the question we address in this study. [emphasis added]

Noting that other studies have found undiminished musical output (in terms of volume) in the post-Napster world, Waldfogel attempts to measure musical quality using “a time-constant quality threshold based on critics’ retrospective lists of the best works of multi-year time periods”:

Using indices collectively covering the period since 1960, we document that the annual number of new albums passing various quality thresholds has remained roughly constant since Napster, is statistically indistinguishable from pre-Napster trends, and that album supply has not diverged from song supply since iTunes’ revival of the single format in 2003. We also document that the role of new artists in new recorded music products has not diminished since Napster. [emphasis added]

Waldfogel’s findings will unquestionably prove controversial in many circles.  And, to be sure, copyright policy may be based on considerations other that mere economic efficiency (e.g., John Locke’s labor theory or artists’ moral rights).  If Waldfogel’s findings are verified and generally accepted on their own terms, however, the economic policy implications seem clear:

It is easy to see that file sharing simply increases welfare. Producers lose, but their losses – when consumers steal things they used to pay for – are all transfers to consumers, who now enjoy greater surplus (the price they had formerly paid plus the former consumer surplus). In addition to the transfers from producers to consumers, file sharing also turns deadweight loss – circumstances in which consumers valued music above zero but below its price and therefore did not consume – into consumer surplus. In a purely static analysis, eliminating intellectual property rights benefits consumers more than it costs producers and is therefore beneficial for society.