Last week, Warner/Chappell apparently sent a cease & desist letter to a firm whose software helps users find and use song lyrics. That letter has touched off a flurry of discussion in academic circles about how copyright law should treat song lyrics. It seems that almost everyone agrees that I can listen to my favorite Neil Diamond song and write down the lyrics for my own enjoyment. Reasonable minds disagree, however, over how much outsiders can help me, for instance by running a website that lists song lyrics or providing a tool that helps me find song lyrics online.
I think the merits here are tricky, but the battle provides an opportunity to sharpen a point often missed in discussions of fair use: a use might be fair when inefficient and awkward, but not fair at all when efficient, large-scale and streamlined.
An example: photocopying.
In many instances, I, as a teacher, can make occasional photocopies of materials relevant to my teaching, and I can also encourage my students to make such copies in support of their learning. As the Sixth Circuit made clear in Michigan Document Services, however, if I were to bring Kinko’s into the mix and ask that very efficient maker of copies to do the copying for my class, what was once a fair use very likely becomes infringement.
Why punish efficiency? When we say something is fair use we have a built-in sense of (a) how widespread the practice will be and (b) how hard it would be to do it under a permission-based system. Introduce an efficient player like Kinko’s into the mix, and all of a sudden those two factors might radically change. Our guess about the extent of the practice goes out the window, and the fact that Kinko’s exists might be new evidence that a permission-based system can in fact work. To put the latter point differently, Kinko’s is efficient in many dimensions: it does the job cheap, and it is also a cheap way to collect and distribute royalty payments.
Lastly, note that in all these examples the fact that the inefficient use remains “fair” matters tremendously, in that it provides a safety valve against unreasonable copyright holders. If textbook publishers charge too high a royalty to Kinkos, my students and I can always fall back on our fair use right to copy without Kinko’s help. That constrains copyright holders from wielding too much power; or, phrased another way, it allows the “fair use” doctrine to subsidize these uses even while at the same time not protecting them.