Shape-Shifters in the Fair Use Lab

A Talk by Mark Willis

An Icon for Fair Use

Shepard Fairey’s image of Barack Obama was seen everywhere during the 2008 election. It spread virally, morphing quickly from street art to iconic cultural treasure. By the time of Barack Obama’s inauguration, it had been added to the permanent collection of the National Portrait Gallery in Washington, D.C. A week later it was embroiled in controversy over the image’s source and who owned it. The Associated Press and freelance photographer Mannie Garcia, who snapped the 2006 news photo on which “Hope” is based, say it infringes their copyrights. Fairey argues that his image is a “transformative” creative work protected by the fair use doctrine. In other words, it is a shape-shifter.

Fairey and the Fair Use Project at Stanford Law School sued the AP preemptively. The suit is pending, and if it isn’t settled out of court, it could lead to a landmark case in copyright law. If that happens, Google could be implicated, because Google is where Fairey retrieved the original image. All of us could be implicated as well, if we have downloaded content from Google Images.  So, to the multiple layers of meaning signified by this iconic image, add one more. “Hope” is now a poster for the role of fair use in American culture.

News stories about the copyright controversy made reference to well-known tenets of the fair use doctrine. Fair use — the use of copyrighted work within specified guidelines — for the purposes of journalism, criticism, parody, scholarship and research is not an infringement. As I listened to these explanations, I waited to hear mention (and never did) of a lesser known dimension of fair use that has been a  basic assumption of my life and literacy for nearly forty years. That assumption is my right to reproduce and transform copyrighted work into shape-shifters, media formats that are accessible to me as a blind reader.

Section 107 of the Copyright Act does not specify accessibility as a fair use, but the legislative history of the Copyright Act of 1976 includes a statement that reproducing a protected work in a form for use by blind persons is a fair use. The principle of accessibility was codified in 1996 in Section 121 of the Copyright Act, known as the Chafee Amendment. I will discuss it further when I describe how and why I have transgressed its restrictions for the purpose of this talk.

Epic Shape-Shifters

First, let me say more about my notion of shape-shifters by invoking Homer, the blind poet who is said to be the author the Iliad and the Odyssey. It is not the primordial metaphor of the blind poet that interests me here. As politically savvy blind persons are wont to say these days, we are people, not metaphors. The social phenomenology of blindness, including my own, seldom fits common metaphorical expectations. What I invoke here are the Homeric texts — founding texts of Western literature – which arose first from an oral tradition before the advent of the Greek alphabet. The Homeric texts have shifted shapes for millennia.

Thanks to the work of Milman Parry, Albert Lord, John Miles Foley, and other proponents of oral formulaic theory, it is now widely accepted that the Homeric texts were stitched together from commonplace phrases known as oral clusters or Homeric epithets. The poetic structure of each word cluster  signaled how it fit into the Greek hexameter verse line. It carried information beyond the semantic meaning of its individual words that conveyed the organization of the whole text. Today we would call this meta-data. The epics were not memorized and recited verbatim. They were stored in memory, retrieved  from it as needed, and reassembled using the formulae of these  interdependent mnemonic devices. Each oral performance was a reenactment of the text as it shifted shape from inner to public speech.

In “The Bias of Communication,” the essay from which MiT6’s theme is drawn, Harold Innis described how this process of oral storage and transmission shaped Greek literacy. “The Homeric poems were the work of generations of reciters and minstrels and reflected the demands of generations of audiences to whom they were recited,” Innis wrote. “This powerful oral tradition bent the consonantal alphabet to its demands and used five of the twenty-four letters as vowels… The written language was made into an instrument responsive to the demands of the oral tradition.” [Innis 40]

That is a provocative assertion with shape-shifting implications. Innis recognized that oral communication has played a recurring, resurgent, and revitalizing role in shaping media throughout history.  This idea was further developed by Marshall McLuhan, his University of Toronto colleague, who emulated the sweep of Innis’ historical analysis in The Gutenberg Galaxy. The assertion counters prevailing dogma that posits the complete and irrevocable eclipse of oral traditions by the advent of literacy and literate technologies. Innis and McLuhan presaged alternative social models of literacy that now acknowledge the interaction of oral/literate processes in what Shirley Brice Heath calls “ever-shifting, protean forms.”
Today’s blind readers and writers are not bound by the limitations of memory storage in oral culture. They can shift the shape of literate forms, infusing them with the speed and immediacy of oral transmission. They have access to more communication technologies than Marshall McLuhan ever imagined. They can construct their own hybrid oral/literate texts to meet their needs. Let me show you one of mine.

Accessible Innis 2.0

Harold Innis presented “The Bias of Communication” first as a talk at the University of Michigan. He spoke sixty years ago. As far as I know, no recording was made, so I don’t know whether he read the text or spoke extemporaneously, summoning oral clusters from memory. Whatever the mode of oral delivery, his talk that day would have been accessible to me. I would have listened to it.

And I would have sense the broader possibilities of accessibility whenever Innis cited the flexibility of communication media. In his survey of history, the flexibility of one medium after another shifted over space and time, leading to successive “monopolies of knowledge” that favored some people but excluded others.  As a dominant medium came to shape the knowledge it transmitted, it lost flexibility through its “bias of communication” and eventually was undermined by new media capable of carrying new knowledge. The dominance of one medium over another was not the result of some implicit technological determinism, as the development of communication often is portrayed, but of contending power relations among people.

When the organizers of MiT6 chose “The Bias of Communication” – now a canonic text in media studies – as the conference theme, I needed to reconstruct the printed essay in an accessible medium so I could read it. The publisher and copyright holder of Innis’ works, the University of Toronto Press, has not published it in an accessible format such as an audio recording or a digital text. Producers of educational audio books such as Recordings for the Blind & Dyslexic (RFB&D) and the Canadian National Institute for the Blind (CNIB))  have not recorded any of Innis’ writings.

So I bought a copy of the book also titled The Bias of Communication and scanned the essay using a desktop scanner. I produced a PDF file indexed with the optical character recognition function in Adobe Acrobat Professional 8.1, which converted the scanned image of the text into a digital text that could be read by screenreaders such as Jaws or ZoomText.

The work of constructing an accessible text did not end there. I continue to correct errors in the optical character recognition, amending Innis’ text as I read and re-read it. I also continue to refine its organization and format to optimize its visual and aural readability. A fully accurate, accessible text is a moving target. I consider the version of “The Bias of Communication” reconstructed in the Fair Use Lab to be Accessible Innis 2.0. At present, it has three accessibility features:

1. The web-based text can be read with a screenreader.

2. The text can be heard using an on-demand audio stream. Use the Odieogo “Listen Now” button at the top of the text.

3. The audio text can be downloaded as an MP3 file. Follow the links presented after clicking the Odieogo “Listen Now” button.

A New Fair Use Rationale

Scanning a book in this way to make an accessible digital text for personal use falls securely within the fair use doctrine in U.S. copyright law. Section 107 of the Copyright Act allows the fair use of copyrighted work for the purposes of scholarship and research. Furthermore, Section 121 of the Copyright Act, the Chafee Amendment, affirms the principle of accessibility as a fair use. Had I stopped at Accessible Innis 1.0, the digital text stored in the walled garden of my PC, I’d feel confident that I am a law-abiding citizen. However, I step into uncharted legal territory by publishing Accessible Innis 2.0 on the Internet, where everyone can have access to it.

The Chafee Amendment stipulates a host of restrictions on the production of accessible texts. It permits only “authorized entities” to reproduce and distribute copies of protected works “in specialized formats exclusively for use by blind or other persons with disabilities.” While I qualify as a consumer , I am not authorized under the Chafee Amendment to be a producer of accessible texts. More significantly, I have not used a “specialized format” accessible only to qualified persons with print disabilities. The digital text of Accessible Innis 2.0 is published on the Internet using WordPress, an open source web publishing platform, and the Odieogo player that delivers the audio stream is a free WordPress plugin. .

The Chafee Amendment was adopted in 1996. Quaintly, it cited “phono records” as the prime example of an accessible audio format. It did not acknowledge technologies that already had been transforming society for a generation –  the compact disk, the personal computer, and the Internet. It certainly did not foresee the wealth of digital media and social networks that now blur the boundaries between producers and consumers.

In launching the Fair Use Lab, one of my goals is articulating a new rationale for accessibility in fair use. I understand and believe this rationale at an intuitive level. I hope to frame it in a simple statement such as the fair use claims appended to copyrighted contents in the Wikimedia Commons. For now, here is my first draft of it:

1. The future of accessibility lies in open source technologies, not specialized platforms and formats. Limiting accessible texts to specialized formats only perpetuates the isolation and marginalization that people with print disabilities seek to overcome.

2. Blind readers are not  dependent solely upon “authorized” producers for accessibility solutions. They now can construct accessible tools and texts for themselves. They should be free to share the transformative work of accessibility with peers in engaged communities and publics on the Internet.

3. Listen to Paul, the default SAPI voice that reads Accessible Innis 2.0. The synthesized audio text is unlikely to harm sales of the printed book.

Conclusion

I am a hopeful person, not a paranoid. I don’t think the copyright police will break down my door as I experiment in the Fair Use Lab with new ways of constructing accessible texts. I am mindful, though, of Lawrence Lessig’s chilling observation that “fair use in America simply means the right to hire a lawyer to defend your right to create.”  [Free Culture, p. 187 ]

Let me balance that with something Emerson said in his American Scholar address in 1837. “One must be an inventor to read well.” That’s the kind of shape-shifting advice I plan to follow.

Notes

1. Falzone , Anthony. (2009). “FUP Files Suit Against The Associated Press On Behalf Of ‘Obama Hope’ Artist Shepard Fairey.” Retrieved April 12, 2009, from Stanford Fair Use Project: http://cyberlaw.stanford.edu/node/6061.

2. Copyright Laws of the United States of America. Retrieved April 18, 2009, from http://www.copyright.gov/title17/92chap1.html#107.

3. See “AHEAD’s Perspective on the Issues of Textbook Access.” (2006). Retrieved April 12, 2009, from Association on Higher Education and Disability: http://www.ahead.org/resources/e-text/position-statement.

4. Copyright Laws of the United States of America. Retrieved April 12, 2009, from: http://www.copyright.gov/title17/92chap1.html#121.

5. Innis, Harold A. (1951). “The Bias of Communication.” In The Bias of Communication. Toronto: University of Toronto Press (p. 40).

6. Heath, Shirley Brice. (1982). “Protean shapes in literacy events: Ever-shifting oral and literate traditions.” In D. Tannen (Ed.), Spoken and written language: Exploring orality and literacy. Norwood, NJ: Ablex (p 115).

7. Innis, p. 38.

8. Fair Use Lab. (2009). “Accessible Innis 2.0: The Bias of Communication.” Retrieved April 18, 2009 from: http://fairuselab.net/?p=270.

9. Copyright Laws of the United States of America. Retrieved April 12, 2009, from http://www.copyright.gov/title17/92chap1.html#121.

10. Lessig, Lawrence. (2004). Free Culture: The Nature and Future of Creativity. New York: Penguin (p. 187).

11. Emerson, Ralph Waldo. (1837). “The American Scholar.” Retrieved April 18, 2009, from The Project Gutenberg EBook of Essays, by Ralph Waldo Emerson: http://www.gutenberg.org/files/16643/16643-h/16643-h.htm#THE_AMERICAN_SCHOLAR.

Acknowledgements: This talk was presented  at the Media in Transition 6 conference at M.I.T. on April 26, 2009 at a session on Intellectual Property. This is the working draft of the talk, which will shift shape over time as the project evolves. See the MiT6 proposal.

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