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Two Questions on Fair Use: Interview with Nabiha Syed

For this year’s Fair Use/Fair Dealing Week, MediaWell is partnering with the Association of Research Libraries to interview experts reflecting on how fair use supports research, journalism, and truth. This is the fourth and final installment of MediaWell’s four-part series, entitled “Two Questions on Fair Use.” In this interview, we ask Nabiha Syed, president of The Markup, about how the problem of misinformation requires discretion from people looking to exercise fair use, and how fair use supports people who share information independently.

Read the interview on MediaWell’s website.

Can fair use help combat misinformation on social media?

One of the things I love about fair use is that it creates this carve out from a copyright infrastructure that otherwise could pose a lot of downstream restrictions for a creator or a commentator or a person engaging in a critique. That’s the reason why Justice Ginsburg said that fair use doctrine was a built-in free speech safeguard. We want to engage with cultural conversation, with topics of great public interest, and we want to be able to point to them and say, “I’m not sure I agree with that,” or “there’s a detail that’s missing here, or “let me tell you about how my research really supports this in a way that might be counterintuitive.”

What’s tricky about misinformation is that while you can say, “Let me take snippets of the misinformation and rebut it or debunk it, or fact check it,” fair use permits you to do that. But there’s an open question about whether the psychological research actually supports that as a good thing to do.

Fair use clears the way for us to be able to say, “Okay, here is a rumor that’s spreading about how JFK Jr. is going to come back and turn Donald Trump into the president,” which I think was circulating a couple months ago. We can take that snippet because fair use allows us to, and have that clip or take that quote and comment on it, which is all well and good and should happen. But in a journalistic environment, do we want to be recirculating it? Do we want to be amplifying it? These are a really interesting set of questions. I’m not sure it’s the right tactic, but I’m glad that fair use at least gives us the chance to engage.

For researchers who are working on a different time horizon than journalists, the ability to really dig in, to create a historical record of this kind of misinformation, to document how it flows, that wouldn’t be possible without fair use. For that use case, I think it’s tremendously necessary to document this strange time that we’re in, and the many flavors of misinformation. But for the news journalistic context that I operate in, I worry a little bit about just because you can, doesn’t mean you should.

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Fair Use/Fair Dealing Week Day 3 Roundup

This year, libraries, universities, and civil society groups celebrate Fair Use/Fair Dealing Week February 21–25.

Fair use (in the US) and fair dealing (in Canada and other jurisdictions) is a right that allows the use of copyrighted materials without permission from the copyright holder under certain circumstances. Association of Research Libraries (ARL) President K. Matthew Dames, the Edward H. Arnold University Librarian for the University of Notre Dame, says of fair use: “Fair use is an indispensable tool allowing librarians, researchers, journalists, and the public to access and use copyrighted original sources, which is critical to understanding the truth of any issue. Along with rights that Congress specifically granted to libraries, fair use propels the advancement of culture and knowledge, which is the fundamental purpose of copyright.”

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Fair Use Jurisprudence Project—Updated for 2022

**Cross-posted from https://ipat.law.uci.edu/fairuse22/**

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Pie chart of fair use opinions by court name and state.

Fair Use Opinions by Court, January 1, 2019–February 8, 2022

Last year, in celebration of Fair Use Week, the IPAT clinic took a deep dive into fair use. We looked at every written judicial opinion that discussed fair use from the beginning of 2019 through February 2021, and made them available in a searchable, sortable database with abstracts and commentary and links to copies of every single case. We learned a lot, and the resources we made available were used by many scholars, students, and attorneys across the country.

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Two Questions on Fair Use: Interview with Alex Abdo

For this year’s Fair Use/Fair Dealing Week, MediaWell is partnering with the Association of Research Libraries to interview experts reflecting on how fair use supports research, journalism, and truth. This is the third of MediaWell’s four-part series, entitled “Two Questions on Fair Use” in which we ask Alex Abdo, the litigation director of the Knight First Amendment Institute at Columbia University, about the key issues surrounding researchers’ and journalists’ access to data, as well as legislative efforts to promote platform transparency for researchers. The transcript has been lightly edited for clarity.

Read the interview on MediaWell’s website.

What would you think are the key issues for scholars and journalists to know right now about access to data?

One of the most important subjects of research at the moment is our online world, and researchers and journalists are trying to educate the public about what our new online sphere portends for society. Is public discourse online being manipulated or distorted by the platforms that host and curate conversations online, or by malicious third parties who try to hijack conversations or hijack the machinery of content moderation to advance their agenda at the expense of the public interest?

But it is extremely difficult to study those questions because you need data to study them, and the platforms, for their part, tend to be pretty stingy in the data they make available to researchers and journalists. And so there are many, many journalists and researchers now who try to study the platforms independently, by acquiring data through their own means, either by recruiting volunteers to their studies to enable research, or by collecting data directly themselves for their studies.

The problem is that the platforms tend to view those kinds of activities as violations of their terms of service; they tend to view them as illegal. And the platforms, and I’m mainly thinking of Facebook here, have threatened researchers and journalists who engage in these public interest investigations with cease-and-desist letters, threats of litigation, with the effect of shutting down some of these individual research projects or causing them to change in ways that make them less useful to the public.

Maybe even more troubling is the fact that these threats cast a broader chill on the research community. There are many researchers who don’t take up these sorts of investigations because they don’t want to have to worry about a corporate behemoth like Facebook sending them a legal threat and a legal demand that they don’t have the resources or the institutional backing to fight. So that, to my mind, is one of the most important areas where we need research and study, but where corporate terms of use have created an enormous blind spot for humanity.

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Fair Use/Fair Dealing Week Day 2 Roundup

This year, libraries, universities, and civil society groups celebrate Fair Use/Fair Dealing Week February 21–25.

Fair use (in the US) and fair dealing (in Canada and other jurisdictions) is a right that allows the use of copyrighted materials without permission from the copyright holder under certain circumstances. Association of Research Libraries (ARL) President K. Matthew Dames, the Edward H. Arnold University Librarian for the University of Notre Dame, says of fair use: “Fair use is an indispensable tool allowing librarians, researchers, journalists, and the public to access and use copyrighted original sources, which is critical to understanding the truth of any issue. Along with rights that Congress specifically granted to libraries, fair use propels the advancement of culture and knowledge, which is the fundamental purpose of copyright.”

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Two Questions on Fair Use: Interview with Rebekah Tromble

For this year’s Fair Use/Fair Dealing Week, MediaWell is partnering with the Association of Research Libraries to interview experts reflecting on how fair use supports research, journalism, and truth. This is the second of MediaWell’s four-part series, entitled “Two Questions on Fair Use” in which we ask Rebekah Tromble—director of the Institute for Data, Democracy & Politics and associate professor in the School of Media & Public Affairs at George Washington University—about how fair use enables computational social science research, but also how limitations on fair use imposed by social media platforms constrain research and teaching about political discourse online.

Read the interview on MediaWell’s website.

How does the copyright environment affect what kind of research & scholarship is conducted, and why does this matter for society? For democracy?

I think that I can share from my perspective, as someone who studies political information and political discourse in the digital space, meaning everything from blogs, to websites, to of course social media, but also mass media that’s produced online and shared online. The rules and regulations around copyright, in many instances, wind up making the kind of core scientific endeavor quite challenging, particularly because under the best practices of the scientific method, you would ideally share the core data, the baseline data, so that others can deeply investigate the work that you’ve done and ensure that you’ve followed the proper methodology and replicate it as appropriate.

In the area that I work in, computational social science, we’re doing a lot of things like building out algorithmic models to detect and understand various concepts or various phenomena. Having that underlying data available is essential. It’s really, really important. And so we’re sometimes hindered by the fact that, for example, if I’m using a great deal of data pulled from mass media outlets, news organizations, websites, I very often can’t share that with other researchers. Those who are on my team can also work with that data, but copyright rules and regulations prevent us from sharing it with other researchers outside of our team, and so the scientific process winds up being hindered. The sort of questions that we’re investigating are about the spread and impact of disinformation. Understanding the types of political discourse that are happening in a variety of spaces online is really essential to our deeper understanding of both the health and wellness, and on the other hand, the harms that are occurring within our democratic societies.

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Fair Use/Fair Dealing Week Day 1 Roundup

This year, libraries, universities, and civil society groups celebrate Fair Use/Fair Dealing Week February 21–25.

Fair use (in the US) and fair dealing (in Canada and other jurisdictions) is a right that allows the use of copyrighted materials without permission from the copyright holder under certain circumstances. Association of Research Libraries (ARL) President K. Matthew Dames, the Edward H. Arnold University Librarian for the University of Notre Dame, says of fair use: “Fair use is an indispensable tool allowing librarians, researchers, journalists, and the public to access and use copyrighted original sources, which is critical to understanding the truth of any issue. Along with rights that Congress specifically granted to libraries, fair use propels the advancement of culture and knowledge, which is the fundamental purpose of copyright.”

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Sandra Enimil headshot.

Relying on Fair Use to Reach Intended Audiences

By Sandra Enimil

For Fair Use Week 2022, the Association of Research Libraries (ARL) teamed up with the Social Science Research Council (SSRC) #MediaWell project and asked experts to weigh in on how fair use supports research, news, and truth. Sandra Enimil, copyright librarian and contracting specialist at Yale University Library and chair of the Association of College and Research Libraries (ACRL) Research and Scholarly Environment Committee, shares below how fair use helps information reach intended audiences. 

Note: This post was transcribed from a conversation and lightly edited.

When you look at the actual statute about fair use, Section 107 of the Copyright Act, it calls out news reporting by name. It states that it would not be an infringement of copyright to reuse some content in the course of news reporting—it’s specifically called out. So, I think that our legislative branch recognized that people who are in the business of reporting need to be able to use content, sometimes in ways that it was intended to be used, and sometimes in ways that it was not intended to be used, in order to tell stories. Reporters need to be able to tell stories in a way that provides information, in a way that might meet their audience where they are, or have an impact, or be accessible to an audience.

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Sandra Enimil headshot.

Fair Use and the Scholarly Environment

By Sandra Enimil

For Fair Use Week 2022, the Association of Research Libraries (ARL) teamed up with the Social Science Research Council (SSRC) #MediaWell project and asked experts to weigh in on how fair use supports research, news, and truth. Sandra Enimil, copyright librarian and contracting specialist at Yale University Library and chair of the Association of College and Research Libraries (ACRL) Research and Scholarly Environment Committee, explains below how the copyright environment affects research and scholarship, and why this matters for society. 

Note: This post was transcribed from a conversation and lightly edited.

I am the chair of ACRL’s Research and Scholarly Environment Committee, and one of the things that we work on is talking about scholarship in academic institutions and how people make scholarship available and open access. In this landscape, I think one of the things that people recognize as important is author copyright. With faculty authors, at most institutions, the institution doesn’t claim copyright in their scholarly works, so the author keeps copyright.

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Two Questions on Fair Use: Interview with Mark Lemley

For this year’s Fair Use/Fair Dealing Week, MediaWell is partnering with the Association of Research Libraries to interview experts reflecting on how fair use supports research, journalism, and truth. This is the first of MediaWell’s four-part series, entitled “Two Questions on Fair Use” in which we ask Mark Lemley, William Neukom Professor of Law at Stanford Law School and senior fellow at the Stanford Institute for Economic Policy Research, some questions about the legal history of fair use, and how fair use supports research and teaching. The transcript has been lightly edited for clarity.

Read the interview on MediaWell’s website.

How does fair use support journalism, specifically documentary filmmaking, data-driven reporting, news content, and aggregation?

I think the answer is fair use has sort of long been integral to all kinds of journalism and reporting. You can go back decades; you can go back almost a century to some remarkable cases. For example, there was a case in which somebody who wanted to tell the story of the Kennedy assassination broke in and got copies of stills from the Zapruder film, which was the only visual evidence of the Kennedy assassination. When the copyright owner sued, the court said, “that’s fair use because you’re taking a copyrighted work for purposes related to the public interest.” I think that has been true across a wide array of news and media communications. There are often circumstances in which there is one key source: somebody took a video of a beating or a shooting, for example, or the key source is itself an official document.

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