A recent dispute involving Amazon.com and some Dutch media students highlights the danger of overestimating the power of fair use to defend against claims of on-line infringement.  About two weeks ago, two students from the Piet Zwart Institute of the Willem de Kooning Academy  Hogeschool, located in Rotterdam, created a tool that allowed Amazon.com customers to download pirate copies of the books, movies and music they were seeking from the Amazon.com site. The tool was a Firefox plug-in that created an official-looking button next to Amazon’s listing for each item that said “Download 4 Free.”  Rather than making legitimate, authorized purchases from Amazon.com, however, the customers using the tool were instead directed by hyperlinks to the Pirate Bay, an unauthorized BitTorrent site, and a BitTorrent client would be started up to initiate the unlawful download. The students called their project “Pirates of the Amazon.” 

  
The students’ tool and corresponding website were taken down after Amazon.com filed a DMCA notice, and in most similar situations that would have been the end of the matter.   In this case, however, the students issued a ringing defense of their activities under the fair use doctrine, which is codified at 17 U.S.C. 107.  Fair use can provide a complete defense to a wide variety of unauthorized uses, and has been applied particularly expansively in connection with parody, as in Campbell v. Acuff-Rose, the well-known 1994 Supreme Court decision involving a rap parody of Roy Orbison’s “Oh Pretty Woman.”  Accordingly, the creators of “Pirates of  the Amazon” posted an explanation in which they claimed that the project was “an experiment in interface design, information access and currently debated issues in media culture.” In a follow-up e-mail reported by the New York Times (Dec. 8, 2008 at B6), the students posited that Amazon.com and the Pirate Bay “might look like opposites, but are actually quite similar in regards to the mainstream media content they provide . . . Our product demonstrated this practically.  So it’s a parody of any kind of media consumerism, whether corporate or subcultural.”

Viewed most sympathetically, this amounts to a hugely overbroad interpretation of “parody” as a legal term of art, calling to mind the arguments unsuccessfully offered by defendants in fair use cases like Rogers v. Koons and Dr. Seuss Enterprises v. Penguin Books.  Viewed more skeptically, the students’ argument completely (and perhaps disingenuously)  misses the point of “parody” fair use, which is to allow the use of copyrighted works in connection with commentary about those works; such commentary is utterly lacking here. The students may or may not have had a point to make about Amazon.com and the Pirate Bay (e.g. that a user can often obtain the same content from both sources), but even assuming such a point they might at best be allowed to use copyrighted elements of the Amazon.com site to make that point.  Section 107 would offer no justification for facilitating infringements of other works by users of the students’ site. Those users are not commenting on anything, they are simply downloading pirate content, at the invitation of the students who provide the links.

Perhaps it is no wonder, then, that few were able to perceive the allegedly parodic nature of the site. Writing on the mailing list Nettime, the students’ course director acknowledged, with evident surprise and dismay, that “the majority of commentators failed to see the highly parodistic and artistic nature” of the tool.  This itself is a very strong indication that the fair use defense would not succeed, if the case were to be litigated; under the Supreme Court’s standard from Campbell, the parody defense can only apply where the parodic nature of the work may reasonably be perceived.  Commenting on both the project and the controversy surrounding it, Andrew Orlowski  blogged that “since Duchamp’s urinal, a great deal of modern art has been a ‘prank’ against the art establishment. Maybe that’s why now, state-funded ‘pranks’ like the Pirates plug-in – designed to preach to the converted – feel so stale.” Even if observers in the online media world thought the tool were fresh and clever and wonderful, however, it would never be likely to succeed as a fair use as a legal matter.  As flexible as fair use is, there are limits beyond which it offers no defense and “Pirates of the Amazon” was well outside those limits.