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<\/h2>\n<\/h2>\nby Brandon Butler<\/strong><\/p>\n Eat food. Not too much. Mostly plants.<\/p>\n That, more or less, is the short answer to the supposedly incredibly complicated and confusing question of what we humans should eat in order to be maximally healthy.<\/p>\n Michael Pollan, <\/em>Unhappy Meals, NY Times Magazine, Jan. 28, 2007.<\/em> Available online here<\/a>.<\/p><\/blockquote>\n Use fairly. Not too much. Have reasons.<\/p>\n That, more or less, is the short answer to the supposedly incredibly complicated and confusing question of how in-copyright works can be used lawfully under the fair use doctrine.<\/p>\n Food writer Michael Pollan has made a big impact on the way people think about what they eat. In a series of magazine pieces<\/a>, books<\/a>, lectures<\/a>, and a recent documentary<\/a>, Pollan has proposed a kind of paradigm shift, away from what he calls \u201cnutritionism\u201d and toward a simpler approach to healthy eating embodied in his seven-word epigram, \u201cEat food, not too much, mostly plants.\u201d<\/p>\n I\u2019m a big fan of Pollan\u2019s thinking and writing, and not just because my law clinic<\/a> students helped to vet the fair uses in the PBS documentary about him (#humblebrag). The forces he describes as shaping (and misshaping) the way we think about food are actually at work in many areas of life. Indeed, almost everything Pollan says about our dysfunctional relationship to food is in some sense true of copyright law, and especially of the doctrine of fair use. Let me explain.<\/p>\n Pollan calls our dysfunctional relationship with food \u201cnutritionism.\u201d In \u201cUnhappy Meals<\/a>,\u201d he describes nutritionism as:<\/p>\n not a scientific subject but an ideology. Ideologies are ways of organizing large swaths of life and experience under a set of shared but unexamined assumptions.<\/p>\n \u2026 In the case of nutritionism, the widely shared but unexamined assumption is that the key to understanding food is indeed the nutrient. From this basic premise flow several others. Since nutrients, as compared with foods, are invisible and therefore slightly mysterious, it falls to the scientists (and to the journalists through whom the scientists speak) to explain the hidden reality of foods to us. To enter a world in which you dine on unseen nutrients, you need lots of expert help.<\/p><\/blockquote>\n Eaters in the throes of nutritionism are bombarded with the latest theories about which nutrients are good for them and which are bad. They go to the grocery store looking for foods that proclaim an abundance of fiber, or the absence of carbs, for example. This orientation systematically favors processed foods over natural foods, as the former can be easily engineered and branded to fit the latest trendy research. It disfavors simple foods like fruits and vegetables, and nutrient-blind advice like \u201ceat less.\u201d Instead, we are led to believe that so long as our cookies<\/a> and beer<\/a> are low-carb or rich in \u201cgood\u201d cholesterol, or whatever, we can eat and drink as much as we like.<\/p>\n The situation is alarmingly similar where fair use is concerned, thanks to what I call \u201ccopyFUD<\/a>.\u201d For years our basic orientation toward copyright has been one of fear, uncertainty, and doubt<\/a>, with the sense that whatever it is that makes acts infringing or fair, it\u2019s not something ordinary people can see or understand. No one can know what their rights are without a judge\u2019s pronouncement, or at least a lawyer\u2019s very expensive professional opinion. Even advocates who claim to speak for the public interest have said things like \u201cFair use is just the right to hire a lawyer.\u201d Ouch.<\/p>\n Just as nutritionism leads you to the tender mercies of processed foods, copyFUD leads you to cramped guidelines and needless licensing. You cling to advice like \u201cFair use allows 10% or 1000 words, whichever is shorter,\u201d or \u201cFair use is just an affirmative defense, so if you can buy a license, then you had better pay up.\u201d According to copyFUD, the law, like the microscopic particles that make food good or bad, is not something an ordinary person can perceive or understand. Count calories, count words and pages, consult obscure legal-looking guidelines. Buy some low-fat Oreos\u2122 and a blanket license from someone or other and everything will be OK. Anything else would be irresponsible.<\/p>\n Like so many things, nutritionism and copyFUD have their roots in the machinations of people whose salary depends on your believing them. Pollan suggests that national policy may have been set on a course toward nutritionism thanks to the interventions of the meat and dairy lobbies into a congressional committee on US dietary needs in the late 1970s:<\/p>\n Responding to an alarming increase in chronic diseases linked to diet \u2014 including heart disease, cancer and diabetes \u2014 a Senate Select Committee on Nutrition, headed by George McGovern, held hearings on the problem and prepared what by all rights should have been an uncontroversial document called \u201cDietary Goals for the United States.\u201d<\/p>\n \u2026the committee drafted a straightforward set of dietary guidelines calling on Americans to cut down on red meat and dairy products. Within weeks a firestorm, emanating from the red-meat and dairy industries, engulfed the committee, and\u2026 [t]he committee\u2019s recommendations were hastily rewritten. Plain talk about food \u2014 the committee had advised Americans to actually \u201creduce consumption of meat\u201d \u2014 was replaced by artful compromise: \u201cChoose meats, poultry and fish that will reduce saturated-fat intake.\u201d<\/p><\/blockquote>\n The change may seem subtle, but its effects were stark. As Pollan observes,<\/p>\n \u201cthe new language exonerates the foods themselves; now the culprit is an obscure, invisible, tasteless \u2014 and politically unconnected \u2014 substance that may or may not lurk in them called \u2018saturated fat.\u2019\u201d<\/p><\/blockquote>\n So long as the food could be manipulated or branded in a way to highlight this or that nutritional characteristic, there was no risk of anyone \u201ceating less\u201d (or buying<\/em> less) of anything.<\/p>\n Similarly, when it came time to rewrite the copyright law (coincidentally around the same time Senator McGovern\u2019s committee was meeting to delibarate about diet), the question of how to protect the interests of the public (especially teachers and students) presented a challenge to publishers and others whose bottom lines would swell if permission or payment was required for every new use of copyrighted materials. Publishers were ultimately able to convince key congressional committees to reject the call for a blanket exemption for educational uses and rely instead on flexible fair use. Some educators\u2019 representatives then negotiated a set of non-binding \u201cGuidelines\u201d that, as McGovern\u2019s commmittee had done, replaced broad and flexible principles (more on those later) with a strained and miserly gloss literally designed to ensure fair use would not touch anyone\u2019s bottom line.<\/p>\n The House Judiciary Committee dutifully included these Guidelines in the legislative history of the Copyright Act of 1976, and they have haunted educators ever since. These Guidelines were initially characterized as a \u201csafe harbor,\u201d i.e., a bare minimum of agreed-upon uses, but thanks to the \u201cright to hire a lawyer\u201d copyFUD that quickly sprouted up around fair use, the Guidelines were often treated as the outer limits of fair use.<\/p>\n The antidote to nutritionism, Pollan says, is to take \u201ca broader, less reductive view of what food is, one that is at once more ecological and cultural.\u201d Healthy eating, Pollan argues, has always been a matter of being in the right kind of relationship with other organisms in a balanced ecosystem.<\/p>\n Species co-evolve with the other species they eat, and very often a relationship of interdependence develops: I\u2019ll feed you if you spread around my genes.<\/p><\/blockquote>\n These relationships are highly complex and involve interactions between multiple aspects of both the eater and the eaten. Most importantly, they are relationships to whole foods, not to nutrients. Their development over time has endowed us with a natural sense of which foods are good for us and when – what looks ripe, what smells delicious, and so on. Processed foods that give us heaps of this or that nutrient but eliminate others, or fool us with artificial color, flavor, etc., undermine that natural sense and lead us astray. Once we think of food at a macro level, we can see where the typical American diet has gone astray and start to see the kinds of changes that would bring us into a better relationship to our food.<\/p>\n What does a cultural, ecological, macro-view of fair use look like? Well, it\u2019s exactly the view we find in the US Constitution, which instructs congress to make copyright and patent laws that \u201cpromote the Progress of Science and the useful Arts.\u201d Progress in culture requires a legal system that allows ideas to move and new generations to make new uses of existing works. That, in turn, requires a healthy ecology of makers, fans, teachers, students, collectors, curators, distributors, describers, and on and on.<\/p>\n Like Pollan\u2019s eaters, our senses of fairness, of legitimate community practice, the norms, values, and relationships that have grown up around production, consumption, and reuse of culture over time can give us intuitions about when use-without-permission will make the system work, and when it will undermine the system\u2019s healthy functioning. To a much larger extent than the copyFUD acknowledges, we can intuit when a use is fair and when it is an infringement by engaging our sense of fairness, proportionality, and reason.<\/p>\n My version of Pollan\u2019s epigram is, \u201cUse fairly. Not too much. Have reasons.\u201d<\/strong><\/p>\n Like \u201cEat food,\u201d \u201cuse fairly\u201d sounds so broad that it\u2019s almost useless, but just a little elaboration is enough to give it some shape, and to connect it to the caselaw. The core of fairness in this context, as courts have told us from the beginning<\/a>, is that a fair use is not a \u201cmerely superseding\u201d use; in other words, a fair use takes from an existing work without displacing it (or its typical derivative works, like film adaptations and sequels) in the market. Some courts (the ones with a more economic orientation) talk about fair uses being \u201ccomplementary,\u201d which is a similar notion.<\/p>\n A book review is a good example of a non-superseding fair use. A good review can give deep insights into a book\u2019s themes, strengths, and weaknesses, but it is still no substitute for reading the book. It\u2019s a complement to the book\u2014it helps readers to understand and appreciate the book, and (most importantly) to decide whether to read it. Authors, publishers, and reviewers understand that all are better off in an ecosystem where reviewers can copy from their subjects as part of their reviews without payment or permission.<\/p>\n Another touchstone of fairness, and in a way the converse of \u201cnot superseding,\u201d is to do something different or new, and to add value with your use. Search engines are a great example of this. Search engines work by copying the full text of the works they index, and some<\/a> have argued that this means that by definition they do not add value. In reality, of course, anyone who tried to use the internet before good search engines can tell you exactly what a good search tool adds<\/a> to the pages it copies. And, importantly, a search engine doesn\u2019t replace the pages it searches; internet users still click through to explore the results.<\/p>\n These two aspects of fairness\u2014non-superseding and different\/new\/value-added purpose\u2014are captured in the legal concept of \u201ctransformativeness.\u201d Some critics of recent fair use case law have tried to portray \u201ctransformative use\u201d as having gone too far and somehow swallowed the doctrine. In reality, however, \u201ctransformative\u201d is just the latest short-hand for this very old notion of fairness. Courts and practitioners lost sight of these basic concepts for a while, distracted by copyFUD and an obsession with highly technical arguments about market failure. The courts\u2019 turn to transformative use is, in its own jargon-y and technical-seeming way, a Pollan-ist return to fundamental principle. The world outside of the courts is now catching up to this shift.<\/p>\n For a long time, from at least the late 1970s all the way into the 1990s (and in some places still today), \u201chow much?\u201d was considered the key question, if not the only question, to ask when deciding if a use was fair. If you used a sufficiently minuscule amount, your use might be fair. Once you crossed some arbitrary line, however, your use became infringing. This was the approach of the aforementioned 1976 Classroom Guidelines, which gave miserly minima for a variety of contexts\u20141000 words or 10% whichever is less, etc. More recently, the district court in the Georgia State University e-reserves case used a hard quantitative line as part (though not all!) of its fair use calculus; that part of the opinion was overturned on appeal.<\/p>\n Nowadays it\u2019s clear that there is no simple answer to the question of \u201chow much is too much\u201d for fair use, and that\u2019s a good thing. The appropriate amount depends on what you\u2019re doing with the material. Sometimes, as with search engines or critical use of images, the entire work may be the appropriate amount. In other contexts, as in book reviews, the appropriate amount to achieve your new purpose will be much shorter.<\/p>\n One important final point on the question of amount: necessity is not the standard. Some guides say that you should use no more than is necessary for your purpose, but courts have said clearly and repeatedly that the question of amount is less miserly than that. \u201cNot too much\u201d captures it nicely: it should be an amount that makes sense in light of your purpose.<\/p>\n This last point is a bit \u201cmeta\u201d\u2014it\u2019s not so much about how to know your use is fair as it is about how to be prepared to defend your use if there are ever questions or concerns. In a way, it amounts to not much more than \u201cBe thoughtful.\u201d But, if you want to be more specific, you should be prepared to account for your use with a clear story addressed to the first two parts of this epigram: Why is your use fair in a colloquial sense\u2014not a mere substitute, but something new and valuable in its own right? And why is the amount you used not too much, given your purpose?<\/p>\nThe Problem: A Pseudo-scientific and Alienating Ideology<\/h3>\n
Food<\/h3>\n
Fair Use<\/h3>\n
The Root Cause: Money (duh)<\/h3>\n
Food<\/h3>\n
Fair Use<\/h3>\n
The Solution: A Cultural, Ecological Approach<\/h3>\n
Food<\/h3>\n
Fair Use<\/h3>\n
Use Fairly<\/h4>\n
Not Too Much<\/h4>\n
Have Reasons<\/h4>\n