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Rebecca Tushnet on why judges should be good reviewers

I just read Rebecca Tushnet's "Judges as Bad Reviewers: Fair Use and Epistemological Humility," a fascinating and highly readable analysis of the ways in which copyright fair use cases turn on judges' willingness to acknowledge that texts can be interpreted in many ways; Tushnet uses vids as case studies. (Full disclosure: I'm cited in it! That is never not going to be exciting.)

Given last week's post on best vs. favorites, I was particularly struck by this bit, which is about the importance of explaining criteria for judgment:

[W]hen it comes to literary judgments, the bad reviewer is the one who insists that a work has only one meaning, and announces the bottom line as if it were an absolute. A good reviewer explains the sources of her judgment, making room for other interpretations, which may be one reason that a well-written negative review can be extremely helpful to someone deciding to go ahead and buy the book anyway.

Tushnet goes on to explain the main problem with current practice:

Unfortunately, copyright fair use cases rarely acknowledge multiplicity of meaning. Instead, even a defendant-favorable fair use case tends to fix one meaning to the plaintiff’s work and another meaning or purpose to the defendant’s work, and then declare them different enough that the defendant’s use is transformative and therefore fair.

What I found especially interesting was her analysis of a specific case (Blanch v. Koons) in which appropriation artist Jeff Koons' use of a copy of a fashion photograph was found to be fair use: the court deferred to Koons' own account of his reasons for using the photo—and by "[s]hifting to a particular expert, the artist himself, the court left the structure of expertise intact." As Tushnet explains,

fair use was determined not on the basis of potential audiences’ understandings of new meanings from the accused work, but on the ability of the artist to express his intentions.... Thus, rather than accepting that multiple meanings and interpretations can coexist, the court picked a side in a contest about true meaning, not unlike a ruling in a contracts case.

Not surprisingly, that passage also made me think of the DMCA hearings, where my primary value was not my academic credentials (except indirectly, insofar as the nature of my employment allows me to be cheerfully matter-of-fact about my fan activities) and certainly not my legal expertise (of which I have exactly none) but my willingness and ability to speak as an artist expressing intention: "This is what I need and this is why I need it." That kind of performance is always weird for me because I am hyper-aware of all the ways in which I can't speak for all fans or all fan video artists or even all vidders; I can only speak as one member of those larger groups.

Tushnet's article shows, I think, why we need both to encourage fans who can do that kind of speaking to do it (because many fans, for any of a variety of reasons, are not in that position) and to change the cultures—legal and otherwise—that value artistic expertise/authority at the expense of interpretive multiplicity.

I mean, that's a huge part of the point of fandom, right? Do all the readings! Make all the meanings! Explore every possible option in as many ways as possible! One of the many reasons that vids and vidding appeal to me is precisely that they're not one person's art project; rather, they're embedded in a whole ecosystem of overlapping and intersecting and sometimes contradictory projects and goals and ideals and interests. That's what makes it fun.

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