The fair use case to show The Interview if Sony will not

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Credit: Sony

After Sony cravenly cancelled The Interview, people who had no interest in the comedy now want to see it — mostly so they can stick it to North Korea, whose threats caused the film to be cancelled in the first place. But where can they watch it?

Some options are already emerging. As the Wall Street Journal proposed, the U.S. government could release the film everywhere, including North Korea where dissidents already smuggle in movies via balloons and USB sticks. Under the Journal’s plan:

[A]n alternative would be for the U.S. government to buy the movie rights from Sony and release it into the public domain. Anyone could then share the file online without violating copyright, burn it onto DVDs or even re-edit it to make new viral videos. Chinese netizens love to mock Kim, and North Koreans like to watch movies smuggled across the border from China. Perhaps the CIA could dub the movie into Korean to make sure it gets to its target audience.

It’s not a bad idea, but perhaps there’s no need to wait for the U.S. government to buy the movie. Instead, distributors of any shape or size, from Netflix to film blogs, could rely on copyright’s fair use exemption to show the movie without asking [company]Sony[/company].

Law professor James Grimmelmann raised this idea last week:

Fair use rules involve courts balancing the rights of the copyright owner against the interest of the public. And in this case, the public interest case for showing the movie is enormous, given the awful precedent that this piece of censorship is setting. As David Carr of the New York Times put it:

Once the film was successfully censored, you could count the days until other films were affected. Actually, it happened earlier in the same day, before The Interview was shelved, when New Regency announced that it would drop an untitled thriller about North Korea that was to have starred Steve Carell. […]

The threats and subsequent cancellation will become a nightmare with a very long tail. Now that cultural discourse has become the subject of online blackmail, it is hard to imagine where it will end.

There is still the matter, though, of how fair use rules actually apply. Here, as with any other copyright case, it involves a standard test. The test involves four steps, but in practice, only two factors really matter: the reason someone is using the copyrighted work, and the effect that this use will have on the market.

As Grimmelmann notes above, the market factor tilts heavily in favor of anyone showing The Interview since, right now, there is no market for the film. And as for the other major fair use factor (known as “the purpose of the use”), there is a good argument that showing the film counts as a so-called transformative use. Unlike Sony’s original intention for the movie, which was as a lowbrow form of entertainment, others who show it would be making a powerful political statement. As President Obama noted on Friday:

“We cannot have a society in which some dictators someplace can start imposing censorship here in the United States … That’s not who we are. That’s not what America is about.”

Does this mean that the fair use case for showing The Interview is open-and-shut? No, it’s not. But the case is strong and, anyway, would Sony really double down by filing copyright lawsuits over a movie that it was too cowardly to release in the first place?

So let’s hope that everyone from [company]Netflix[/company] to [company]BitTorrent[/company] considers making a stand on this one. This would be a good occasion for the file-sharing crowd to prove that they care about something more than getting movies for free. And for [company]Hulu[/company] and [company]Amazon [/company]and anyone else with an interest in Hollywood, this would be a second chance to take up George Clooney’s call for the film industry to take a stand about something that matters more than money.

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Will Buckley

“As Grimmelmann notes above, the market factor tilts heavily in favor of anyone showing The Interview since, right now, there is no market for the film. And as for the other major fair use factor (known as “the purpose of the use”), there is a good argument that showing the film counts as a so-called transformative use. Unlike Sony’s original intention for the movie, which was as a lowbrow form of entertainment, others who show it would be making a powerful political statement. As President Obama noted on Friday….”

From my perspective, Jeff, your positions consistently demonstrate your support for free -file sharing and diluting copyright protection.

My first question Jeff. Are you in agreement with the EFF on their stance applies to copyright and fair use.

Do you support the current section 512 provision that renders take down notices totally ineffective?

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