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We've talked a lot recently about questions concerning the conflict between copyright law and the First Amendment. Historically, the courts have argued that there are two "safety valves" on copyright law that protect it from running afoul of the First Amendment: the idea/expression dichotomy and fair use. I've yet to find this argument convincing for a variety of reasons, in large part because neither the idea/expression dichotomy nor the fair use doctrine are very broad. In fact, they're quite limited and often applied extremely arbitrarily. We've argued in the past that, to some judges, there isn't really an idea/expression dichotomy -- as they ignore that concept when it's convenient to them (such as when they banned the unauthorized sequel to Catcher in the Rye. Along those same lines, "fair use" is often extremely arbitrary as well. Judge Kozinski has famously questioned the arbitrariness of fair use, suggesting that in most cases, a judge can rule either way and the binary-ness of the decision can be troubling. Copyright and fair use expert Peter Friedman has grappled with this in the past as well, saying that there are some cases where fair use is easy to determine... a statement he later had to backtrack on when the example he used in that original article -- a case where he insisted the fair use call was an easy one went the other way. Michael Scott recently pointed us to the latest draft of a paper by law professor Ned Snow on how fair use should be viewed in the legal system. He's written similar papers before, but he focuses in on two key points. The first is that until the mid-80s to early-90s, it "fair use" was considered mostly a "matter of fact" rather than a "matter of law." As such, it was often for juries to decide, rather than judges. However, in the last few decades that's flipped almost entirely, and it's exceedingly rare to find a court that views fair use as a matter of fact, rather than a matter of law. That is, the judge will decide, not the jury. While he focuses on (what he claims is) a misinterpretation of a Supreme Court ruling that resulted in this, I also wonder if the 1976 Copyright Act contributed to the issue -- since it took fair use from a common law/case law arena and put it into the statute with the now famous "four factor" test. William Patry, one of the most respected and recognized (and cited) names in copyright law has argued that this codification of fair use was a major mistake. He's also pointed out that many now falsely believe that the four factors are the only way to judge fair use, when that was never the intention at all. He's reasonably worried that courts no longer look to see if something is actually "fair," but rather jump straight to the four factor test, which (again) can often go either way depending on what the judge wants to do. While Snow's paper tries to deal with this with a few suggestions concerning both moving the fair use determination back to the jury and changing the way appellate courts review such rulings, one point that he made in the piece caught my eye and seems worth narrowing in on. He points out that, as it stands today, copyright law favors the copyright holder over the fair user. That is, fair use is only seen as a defense, rather than a right. He points out how this is problematic from a First Amendment point of view, because the burden is wrong:Presently copyright law unfairly favors copyright holders over fair users, imposing burdens on fair users that stifle fair-use creativity. Fair users face a burden to prove the fairness of their use, which becomes damningly formidable given the uncertainty that surrounds any fair-use question; when fair use is the issue, infringement is the presumption. Facing this formidable burden, fair users must contemplate a punitive penalty that chills future attempts at fair use. By contrast, copyright holders who might doubt their claim against a fair user contemplate a possibility of not profiting from the disputed use. This imbalance between copyright and fair use becomes especially poignant when considering that the Constitution requires copyright to refrain from suppressing fair uses under the Free Speech Clause. Therefore, copyright‟s unequal treatment of fair use, coupled with a constitutional demand for speech protection of fair use, requires that the standard of review favor fair users.While he then focuses in on the somewhat technical (and probably boring if you're not a lawyer) standards on how courts should review fair use cases, the point in that paragraph above struck me as worth pondering. Considering the claim that fair use is supposed to be the safety valve of free speech, and free speech exceptions are always in extraordinary cases where high bars are set for proof, shouldn't the same be true of copyright? That is, if we truly believe that fair use is the valve on copyright to protect free speech, shouldn't the assumption be that the use is fair until the copyright holder proves that it is not? In other words, if we really believe in the First Amendment and that fair use is supposed to protect it from over aggressive use of copyright law to censor, then fair use should be assumed, and the legal burden for proving that a use is not fair should fall on the copyright holder. It seem that would go a lot farther in protecting free speech.