Will Fair Use Survive?

[SOURCE: Brennan Center for Justice: Marjorie Heins and Tricia Beckles]
Are increasingly heavy assertions of control by copyright and trademark owners smothering fair use and free expression? The product of more than a year of research -- including many firsthand stories from artists, scholars, bloggers, and others -- this report paints a striking picture of an intellectual property system that is perilously out of balance. The report suggests the need for strengthening fair use so that it can be an effective tool for anyone who contributes to culture and democratic discourse. The report finds: 1) Artists, writers, historians, and filmmakers are burdened by a "clearance culture" that ignores fair use and forces them to seek permission (which may be denied) and pay high license fees in order to use even small amounts of copyrighted or trademarked material. 2) The 1998 Digital Millennium Copyright Act (the DMCA) is being used by copyright owners to pressure Internet service providers to take down material from their servers on the mere assertion that it is infringing, with no legal judgment and no consideration of fair use. 3) An analysis of 320 letters on the Chilling Effects website, an online repository of threatening cease and desist and "take down" letters, showed that nearly 50% of the letters had the potential to stifle protected speech. The report recommends: A) creating a clearinghouse for information, including sample replies to cease and desist and "take down" letters; B) outreach to Internet service providers who are instructed by companies to take down sites with material they claim as copyright-protected; C) changes in the law to reduce the penalty for guessing wrong about fair use; and D) the creation of a national pro bono legal support network.
http://www.fepproject.org/policyreports/WillFairUseSurvive.pdf