Fair Use Week 2018: The 5th Anniversary of Fair Use Week!

Welcome to the 5th Annual Fair Use Week Celebration!

This year, Fair Use Week will celebrate its fifth anniversary from Monday, February 26 to Friday, March 2, and will feature infographics, videos, stories, events, scholarship, and more.

Here at Harvard, where we first launched a full week of fair use celebrations in 2014, the Library’s Office for Scholarly Communication is hosting a variety fifth anniversary activities. (For a review of the fair use statute origin story, look no further than our Folsom v. Marsh comic.)

We welcome you to follow our guest blog posts from national and international fair use experts, attend the “Fair Use Gameshow” event at MIT, discover more Fair Use Week comics, and attend the Fifth Anniversary Fair Use Week Symposium, “Tried & True: Fair Use Tales for the Telling.” This event will bring together a vibrant community of artists, scholars, lawyers, librarians, archivists, and other leading fair use experts in a day of panels, discussions, and demonstrations.

As always, our Copyright First Responders will act as official ambassadors to Fair Use Week, donning t-shirts to start conversations around campus and online.

Follow all our Fair Use Week events:

Twitter: @FairUseWeek and @KyleKCourtney and #fairuseweek2018

Blogs: http://blogs.harvard.edu/copyrightosc and http://fairuseweek.org/blog/

Tumblr: Fair Use Week Stories

Stay tuned for more events and updates!

Fair Use Week 2017: Day Five With Guest Expert Sara R. Benson

Make “Non-Consumptive Use” Part of Your Fair Use Vocabulary

by Sara R. Benson

The HathiTrust Digital Library continues to push the boundaries of open access.

In late 2016, the Library’s Research Center made the entire corpus available for non-consumptive use through its Extracted Features dataset.  Using this dataset, researchers can access the non-expressive content of public domain and copyright-protected works for the purpose of performing data analysis. The dataset opens the corpus to computational research techniques such as topic modeling or machine classification while limiting traditional forms of reading by virtue of its abstracted data structure.


The structured files, presented in JSON format, provide information about the text (the ideas) without revealing its original form (the expression). Although the term “non-consumptive” was never specifically defined in the HathiTrust case,[1] the type of text mining at issue in that case serves as the building block for the transformative use asserted by the HathiTrust and the users of the Extracted Features dataset.

Notably, in Author’s Guild v. HathiTrust, the Second Circuit Court of Appeals stated that the “creation of a full-text searchable database is a quintessentially transformative use.”[2]  The HathiTrust uses the following definition for non-consumptive research:  It is “research in which computational analysis is performed on one or more volumes (textual or image objects) in the HTDL, but not research in which a researcher reads or displays substantial portions of an in-copyright or rights-restricted volume to understand the expressive content presented within that volume.”[3]


In the case of the Extracted Features dataset, instead of reading or consuming the text, researchers are moving from the extracted content to perform statistical analyses, pull out derived data sets, and look at patterns across words to reach new research conclusions.  This is a decidedly different use then for a work of fiction (say, Harry Potter) which is unequivocally for narrative entertainment.

Here instead, researchers are engaged in another important fair use endeavor— to transform the transmission of and interaction with the work from readable text to minable data in order to better understand connections between literature and historical documents and society.

Thus, non-consumptive use, when defined correctly, could never be construed as anything but a fair use. The concept can provide an important framework for other libraries and data providers who wish to open greater access to datasets without infringement.  It also can embolden researchers to incorporate computational techniques into their scholarship, much of which to date has been limited to pre-twentieth century inquires.

And so, with this brief introduction, I issue a call to all fair use advocates:  please make “non-consumptive use” a part of your fair use vocabulary, promote the use of the HathiTrust Extracted Features Dataset, and continue to promote the fair use rights.

  1. It was, however, defined in the amended settlement agreement, ultimately rejected by the court, in Authors Guild v. Google, available at https://www.authorsguild.org/wp-content/uploads/2014/10/2009-Nov-13-AGvGoogle-Amended-Settlement-Agreement.pdf.
  2. 755 F.3d 87, 97 (2d Cir 2014)
  3. HathiTrust Digital Library, HathiTrust Research Center, Non Consumptive Use Research Policy, available at https://www.hathitrust.org/htrc_ncup

Sara R. Benson is Copyright Librarian & Assistant Professor at the University of Illinois Library

Fair Use Week 2017: Day Four With Guest Expert Dave Hansen

Fair use is for innovation!

by Dave Hansen

betamaxRemember Betamax? I do, but mostly for the fair use case that it precipitated, Sony Corp. v. Universal Studios, Inc. That case was decided by the Supreme Court in 1984. Among other things, it stands for the proposition that fair use allows for copying of copyrighted works for personal, non-transformative purposes, such as in-home recording of television shows to view at a later time. Betamax machines aren’t particularly relevant anymore, but the approach on how courts should apply fair use in light of technological change, as outlined in the case, is as relevant now, as ever.

Fair use and the purpose of copyright

At this point, personal home copying is commonplace; we do it all the time with home DVRs, when we back up our computers and phones, and when we transfer mp3s from an old device to a new one. It’s worth remembering that the legality of this sort of everyday copying, and the legality of the technology that supports it, wasn’t always accepted.

One of the issues that the Betamax case brought to a head was what courts should do when

faced with new technology that makes following the literal terms of the Copyright Act result in legal outcomes that don’t match up with copyright’s underlying purpose. The Betamax court framed the issue this way:

“The immediate effect of our copyright law is to secure a fair return for an `author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. `The sole interest of the United States and the primary object in conferring the monopoly,’ this Court has said, `lie in the general benefits derived by the public from the labors of authors.’  When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose.” (citations omitted).

Fair use is one of the tools that gives courts some flexibility in construing the terms of the Copyright Act in light of its basic constitutional purpose. It is an “equitable rule of reason” that gives courts requires courts to “avoid rigid application of the Copyright Statute when on occasion it would stifle the very creativity which that law was designed to foster.” In that role, fair use has, through the years, facilitated all sorts of technological advancements, from video game development to plagiarism detection software to search engines to image search.

ReDigi and digital resale

One area where we are seeing some interesting emerging innovation is in technology that facilitates secondary markets for digital copies. As a result of so much invention in personal copying and storage devices (and distribution mechanisms to get content to those devices), we now find ourselves in a situation where users have legitimately purchased copies of works for which they never obtained a physical copy. iTunes is the most prominent example, where $0.99 will buy you an mp3 and a variety of other files.

What users can do with those copies is an interesting question. In the past, purchasers of physical copies of books or records could resell, lend, or even destroy the copies they purchased. Congress and the courts recognized that it was desirable for such secondary uses to go unimpeded by copyright, and so crafted a limit on the ability of copyright holders to control downstream distributions of their works after the “first sale” of the copy.

For digital copies, however, the question is a bit more complicated. Users who want to resell or lend their digital copies may be free to “distribute,” but reselling or lending digital copies also, technically, requires a reproduction of the file from one device to the next. The first sale rules, at least as codified in the statute, only address distribution and not reproduction, so technically these resales don’t fall within its scope.

reddigiThis seems like a prime opportunity for fair use to jump in and bridge the gap between the strict terms of the Copyright Act and the underlying purpose of what the Act is trying to achieve. That’s precisely the issue currently being argued on appeal by a company called ReDigi, which has setup its own online market place for reselling your unused iTunes files. ReDigi lost before the lower court, but it is now taking up its case before the Second Circuit Court of Appeals.

As with the Betamax case, the implications for other applications of fair use extend far beyond the immediate uses that ReDigi seeks to make in reselling mp3s. Among other things, it could facilitate library lending of e-books (as argued in this excellent amicus brief from ALA, ACRL, and ARL and Internet Archive), and could relieve all sorts of legal concerns about transferring and providing access to born-digital archival materials.  It’s the kind of case that could also fuel the vision outlined by Internet Archive in its ambitious $100 million, 4 million book digital-lending project.

Whether or not ReDigi wins this particular battle, I think it’s worth celebrating that fair use has provided the flexibility to pursue these sorts of innovations in the past that help fulfill the Copyright Act’s Constitutional purpose of promoting progress.

Dave Hansen is Director of Copyright & Scholarly Communication at Duke University Libraries. He works to help Duke faculty, students, and librarians tackle issues, such as application of fair use, to help enhance the impact of scholarship and library collections. Prior to joining Duke, Dave was a Clinical Assistant Professor and Faculty Research Librarian at the University of North Carolina School of Law.

Fair Use Week 2017: Day Three With Guest Expert Krista Cox


Debunking Fair Use Myths

By Krista Cox

Many myths perpetuate in the world of copyright.  There are myths about copyright term, copyrightability, and the most important exception to copyright: fair use.  Fair use is, of course, an essential right that allows the use of copyrighted material without permission from the rightholder under certain circumstances.  Without fair use, we might not have the great technological advancements like DVRs and search engines.  Without fair use, there would be no parody, no critique, or mash-ups.  Without fair use, scholarship and education would be severely hampered.  Unfortunately, some myths surrounding fair use serve to severely limit this essential right or might cause confusion about what is actually a fairly predictable doctrine with plenty of existing guidance.

For Fair Use Week 2017, ARL commissioned an infographic on ten fair use myths and facts.  This post focuses on two of those ten myths and facts.

Myth: Fair use is a defense, or minor exception, not a right.

Fact: Fair use is a right that accommodates the First Amendment.

Often, we hear that fair use is a defense to copyright infringement.  Rightholders categorize fair use as merely a defense that excuses copyright infringement.  In reality, however, fair use is a critical right and Congress has recognized its status as a user’s right.  Section 108 of the Copyright Act, which provides for the exceptions for libraries and archives, explicitly references “the right of fair use.”

Fair use must be viewed as a right because of its essential relationship to freedom of speech and expression.  The Supreme Court has acknowledged the important role of fair use as a First Amendment “safeguard.”  In Eldred v. Scott, for example, the Court noted that the idea-expression distinction for copyrightability standards and the fair use right are “generally adequate to address” First Amendment concerns and that these copyright elements serve as “built-in First Amendment accommodations.”  The Court continues by explaining, because “The Copyright Clause and First Amendment were adopted close in time, [t]his proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles.  Indeed copyright’s purpose is to promote the creation and publication of free expression.” The “Copyright Clause,” of course, refers to the constitutional purpose of copyright to “promote the progress of science and the useful arts.”  Fair use supports both this purpose and the First Amendment.  In fact, the only way to square the potential restrictions that copyright places on speech with the guaranteed right to freedom of expression, a flexible mechanism must exist to ensure that copyright does not conflict with free speech.

Today, more than ever, the First Amendment is fundamental to our democratic society.  It is critical in ensuring access to information, both in terms of political and economic issues, but also in terms of arts and culture.  Kyle K. Courtney’s Fair Use Week 2017 kickoff video, Fair Use Fights Fascism, discusses the importance of fair use to the First Amendment in today’s political climate.  Beyond the importance of sharing information in the political discourse, as one of my former law professors, Joseph P. Bauer, pointed out in his article Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies,* “The First Amendment may also act as a societal safety valve.  If people feel less free to communicate either orally or in written form, they may resort to less desirable forms of communication, including violent methods.  The freedoms guaranteed by the First Amendment make it less likely that those alternatives will be necessary.”

Because of the role of fair use in protecting the First Amendment, it is correctly viewed as a right.

Myth: Where a specific limitation or exception exists under copyright law, fair use does not apply.

Fact: Fair use is a right that exists in addition to specific exception.

Another fair use myth is that where a specific limitation or exception exists under copyright law, a user cannot rely on the fair use doctrine.  During the Authors Guild v. HathiTrust litigation, the Authors Guild argued that the actions of HathiTrust were impermissible because they went beyond the scope of the Section 108 library exceptions. The Authors Guild claimed that libraries could only perform activities explicitly laid out under Section 108 and that fair use was not relevant to the activities of HathiTrust.  The Second Circuit rejected this argument—giving it no more weight than a footnote in its decision—noting that Section 108(f)(4) unambiguously permits fair use to work in tandem with the specific exception: “Nothing in this section . . . in any way affects the right of fair use as provided by section 107 . . .”

Even beyond the explicit savings clause under Section 108, fair use clearly works in tandem with other specific limitations and exceptions.  The Authors Guild also tried to claim that HathiTrust’s provision of accessible format copies to those with print disabilities violated copyright.  Although Section 121 of the Copyright Act provides for a specific exception for the creation and distribution of accessible works, the Second Circuit turned first to the fair use doctrine and found that this activity is, indeed, a fair use.  As a result, the Second Circuit found “we need not consider” whether the activity was permitted under the specific exception in Section 121.

While specific exceptions provide certainty for particular activities or apply where fair use does not, they do not exclude the applicability of fair use.  Instead, the specific exceptions essentially provide a safe harbor while fair use accommodates not only other uses, but also responds to changes in technology or circumstances, effectively updating the specific exceptions.

In fact, specific exceptions may actually be evidence that Congress recognizes a strong public policy interest in permitting these types of uses and the first fair use factor (the purpose and character of the use) should therefore tilt in favor of the user.  Jonathan Band has written an excellent article, The Impact of Specific Exceptions on Fair Use, making this argument.  The Association of Research Libraries, together with other library organizations and the Internet Archive, also advanced this argument recently in its amicus brief in Capitol Records v. ReDigi.

Fair use is critical to a balanced copyright system and it’s a shame that there are so many myths around this important right.  Hopefully we can continue to celebrate fair use every day—giving it a little bit of extra love this week—and help dispel some of these myths.

You can see all ten fair use myths and facts here and learn more about Fair Use/Fair Dealing Week here.

*In his article, Professor Bauer argues that the idea-expression dichotomy and fair use doctrine ameliorate the conflict between the Copyright Act and the First Amendment, but that they are insufficient.  He advocates for an external mechanism—beyond the internal mechanisms of the idea-expression distinction and fair use—to promote greater protections for the First Amendment.

Krista L. Cox is the Director of Public Policy Initiatives for the Association of Research Libraries (ARL), in Washington D.C.  Prior to joining ARL, Cox was the staff attorney/legal counsel at Knowledge Ecology International, a nonprofit organization that searches for better outcomes, including new solutions, to the management of knowledge resources. She may be reached at krista@arl.org or on Twitter: @ARLpolicy

Fair Use Week 2017: Day Two With Guest Expert Brandon Butler


Fair Use and Open Access: Two Great Tastes That Taste Great Together

by Brandon Butler

Fair use and open access are two crucial tools that serve the same core purpose: making information maximally available and useful without running afoul of copyright law. A comprehensive strategy for increasing access to knowledge has to bring both tools to bear (at least in countries where fair use or something like it is available).

And yet, it is a tempting rhetorical strategy to deprecate fair use as part of the argument for open access, or for copyright reform generally. Fair use, we are sometimes told, is too weak, too uncertain, too risky, so we must turn to open access/open licensing as the one true path to unlocking knowledge. Lawrence Lessig may be the most common source for the view, articulated in his book Free Culture, that “fair use in America simply means the right to hire a lawyer.”

Fair Use Week itself is evidence that Lessig’s clever put-down has not worn well over time; fair use is more-and-more understood as a reliable First Amendment right that powers the HathiTrustSouth Park, and This Charming Charlie with equal aplomb. Fair use will not generally allow levels of access and use that are as wide open and unambiguous as open access, but fair use is still a crucial—and reliable—part of the legal protections for libraries and our users.


Once that political misconception is cleared away, however, we still have to address the tricky legal questions that arise when fair use and open access are mixed together in practice. One of the trickiest is whether the author of an article published under an open license like CC-BY may incorporate portions of others’ works into her new CC-licensed work under fair use, as she would if she published in a traditional way? Kevin Smith actually addressed this issue a few years ago, observing that the CC-BY license itself holds the key:

Licensors should clearly mark any material not subject to the license. This includes other CC-licensed material, or material used under an exception or limitation to copyright.

Yes, in other words, of course you can, and the license tells you how. Because a CC license creates certain expectations in users (namely, that they can reuse any or all of the work under the terms of the license), you should be sure to manage those expectations and help users make smart choices.

Users, by the same token, will need to be familiar with fair use generally in order to determine whether and how the doctrine will continue to shield downstream uses of these “mixed” openly-licensed works.


So, for the foreseeable future, fair use and open access will be two great tastes that taste great together. Fair use will be a vital right for as long as we want to comment on, critique, and otherwise engage with the vast majority of culture. Open access will be the best way to ensure that the next generation of discoveries ideas have maximum impact. And when new ideas, aesthetics, and insights build (as they so often do) on the works of the past, and are published with an open license, well, that’s the best of both worlds.


Brandon Butler is Director of Information Policy at University of Virginia.  There he works on implementing programs to guide the University Library on issues of intellectual property, copyright, and rights management for scholarly materials. Before that, Brandon was Director of Public Policy Initiatives at ARL from 2009 to 2013.


Fair Use Week 2017: Day One With Guest Expert Kenneth Crews

FUW Logo OSCComing to New Terms with Fair Use

by Kenneth D. Crews

One of the virtues of the passage of time is that you get to see a lot of stuff happen and change.  Having spent much of my career on fair use, I have seen many perspectives and takes on this vital copyright doctrine.  It continues to pose challenges and sometimes even offer welcome solutions.  Now is the beginning of Fair Use Week, and I am still coming to terms with the essence of fair use and how it serves different people in different situations in different ways.  From a right, to a defense, to a policy, and to risk implications – perspectives on fair use are shaped by the needs of the community, the legal system, and even personal proclivities.

Right or Privilege?

Some travails about the character of fair use are familiar.  For decades, one debate over the nature of fair use has persisted:  Is fair use a right or a privilege?  My first answer today is the same as it was long ago:  It does not matter what we call it, as long as we are consistent.  My main point of consistency, however, is that we should label all copyright opportunities with the same terminology and give them the same conceptual status.  If fair use is a right, then owners also have rights.  If fair use is a privilege, then ownership is also a privilege.  Frankly, I think “rights” is more accurate.  The overriding concept is that fair use is an integral part of the formula and structure of copyright.  The law is itself a bundle of rights for owners as well as for users.

Right or Affirmative Defense?

One argument against a fair use “right” is its role as an affirmative defense.  What is the position of fair use in the legal system?  Is it really a right that may be asserted by users in a manner that is legally protected, or is it only a defense to raise in response to an infringement lawsuit?  Judicial opinions suggest more strongly than ever that fair use is both.  It is unquestionably a defense in litigation, but fair use is today comfortably recognized as an opportunity for users to be proactive in their asserting of a valid and protectable ability to use a copyrighted work.

The dancing baby video implicitly makes this point.  In Lenz v. Universal Music Corp., a mother who took great delight in her your child dancing to the music of Prince, posted to YouTube a video of her buoyant and happy daughter, with the recording of Let’s Go Crazy playing in the background.  The court did not actually rule that the use of the music was fair use, but did hold that a copyright owner is obliged to give some consideration to the possibility of fair use when sending a takedown notice.  That decision effectively integrated fair use into the full calculation of the expanse of the owner’s rights.

Fair Use as Policy

As fair use assumes a more secure place as a set of public rights, and as part of the definition of a limited scope of authority that belongs to the copyright owner, users and their host institutions – whether nonprofit universities and libraries or commercial entities and major businesses – find today that having a policy on the scope and application of fair use is imperative.  The policy can be practical.  It can guide members of the community through the meaning and application of the law for their common needs.  The policy can also be conceptual.  It can be a vision statement about the importance of the law in support of the mission and goals of the organization.

A good policy can be both and maybe even more.  Our understanding of fair use is a policy decision by itself, and recent litigation involving fair use and electronic reserves at Georgia State University has underscored the importance of having a good policy.  That same litigation also has helped us better see the policy positions we ought to be avoiding.  Through much of the case, as it proceeded through trial and appeal, the publishers bringing the legal action pressed the court to adopt interpretive guidelines from 1976 as the standard that should be applied and enforced as a policy limit at the university.  The judicial rulings on this case firmly rejected that approach and criticized the 1976 guidelines as too rigid and too narrow to be the right standard.

Rise of Risk Analysis

Probably everyone reading this post knows that a determination of fair use is based on an application of the four factors in the statute.  However, I note a strong trend to fold a risk analysis into the decision.

Consider a common scenario:  Professor wants to digitize clips of motion pictures for use in a film analysis course.  The four factors may well point to fair use, especially if the clips are short and they are used in a manner that tightly ties the use to and educational objective.  The professor can become more reticent about fair use, however, when the films are owned by major production companies, or if the resource is used by a large group.

The decision to proceed might also depend on some technical aspects of copyright law, including whether the films are registered with the U.S. Copyright Office, which in turn can shape some infringement risks and the prospect of statutory damages and attorney’s fees.  The initial question may be about fair use, but realistically our answers are often based on much more.

Sometimes Too Much

For some users, fair use is more than they are ready to absorb.  I have worked with colleagues who, in some situations, have been unwilling to take on the challenge and risks of fair use.  The reasons are many.  Sometimes the task is daunting – which is more often true when the project is expansive, the activities are high-profile, and infringement liabilities could escalate quickly.  Sometimes the colleague is simply not ready to take on the risks.  I might make a strong pitch for fair use, but sometimes accepting and applying fair use can be a personal decision about risks, pressures, and disruptions.

These episodes remind us that fair use can also be characterized as a set of responsibilities.  It is a right of use, and the factors call on us to responsibly consider the implications of the use on the market for or value of the original work.  Because fair use also calls on us to exercise a right under the law with legal consequences, we need to be respectful and responsible toward ourselves.  Each of us will engage with fair use differently, and we should act with awareness of the real implications of our decisions for ourselves and others.

International Export

As a final note, we need to appreciate that fair use has also fast become a major American cultural and economic export.  In my blog post from Fair Use Week 2016, I wrote in some detail about the appearance of similar statutes in the copyright law of a short list of countries.  That list continues to expand.

Most recently, a commission of the Australian government has issued a report recommending in strong terms the adoption of an American-style fair use law in Australian copyright.  The report from the Australian Productivity Commission addressed directly the numerous arguments against fair use, and endorsed the role of fair use as a means for infusing the law with flexibility and supporting the evolution of business markets and economic conditions.

The Continuing Evolution of Fair Use

Fair use can be understood in many ways, and it will always be many different things simultaneously.  As we strive to give the law a fresh meaning we are doing exactly what fair use was intended to do:  Serve as a flexible doctrine, adaptable to new and changing needs.  Fair use adapts fundamentally by allowing new uses of new works and by functioning in a context of rapidly changing needs and technologies.  Fair use must also be understood in yet other ways.  In the hands of the public, it is a tool for advancing education and more, but it is also a manifestation of legal risks and policy positions.

Despite the challenges of fair use, it is a welcome addition to the law of a growing list of countries.  Fair use fulfills conceptual and practical needs, and it has become a hallmark of a copyright law that truly serves the purpose of advancing knowledge and creativity.

Kenneth D. Crews is the author of numerous publications on copyright, including Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions (4th ed., forthcoming 2017).  He served on the faculty and established copyright policy offices at Columbia University and at Indiana University.  He has given copyright presentations in nearly every U.S. state and in about 30 foreign countries.  Dr. Crews is based in Los Angeles with the firm of Gipson Hoffman & Pancione.

Disclosure: He testified as an expert witness in the mentioned Georgia State University case, and he met with the Australian commission as it considered its recommendations on fair use.

Fair Use Week 2017

Welcome to the 4th Annual Fair Use Week Celebration!

Fair Use Week will celebrate success stories and debate examples through February 24, 2017 via platforms from workshops to Twitter forums. Here at Harvard, where we first launched Fair Use Week in 2014, the Library’s Office for Scholarly Communication is hosting a variety of events, including guest blog posts from national and international fair use experts, a fair use documentary movie premier, a “Fan Fiction & Fair Use” live event, Fair Use Week comics, and more! As always, our Copyright First Responders will act as official ambassadors to Fair Use Week, donning t-shirts to start conversations around campus and online.

Fair Use Week was appropriately born at Harvard in a 2014 campus-only pilot, but its Harvard roots run deep; the fair use statute was actually born out of an 1841 lawsuit (Folsom v. Marsh, now a comic book!) in which one Harvard historian sued another Harvard historian over quotes and abridgements in a biography of George Washington. The publishers (both Harvard alumni, one formerly the Harvard Librarian) took the case to court, where it was heard by Justice Joseph Story, who also happened to be a law professor at—you guessed it—Harvard. Today’s current four-factor statute wasn’t written until 1976, but Story’s core reasoning guided its formation, and it hasn’t changed much over almost two centuries.

Follow all our Fair Use Week events:

Twitter: @FairUseWeek and @KyleKCourtney and #fairuseweek2017

Blogs: http://blogs.harvard.edu/copyrightosc and http://fairuseweek.org/blog/

Tumblr: Fair Use Week Stories

Stay tuned for live events!


Fair Use Week 2016: Day Five With Guest Expert Matthew Rimmer




Malcolm Turnbull, Copyright Law Reform, And The Innovation Agenda

by Matthew Rimmer


Australian Prime Minister the Hon. Malcolm Turnbull

2015 has been another tumultuous year in Australian Politics. There was a dramatic change in the leadership of the ruling conservative coalition between the Liberal Party of Australia and the National Party of Australia. Tony Abbott was replaced as Prime Minister of Australia by Malcolm Turnbull. This change of leadership has been consequential for Australian copyright politics. The transition from Tony Abbott to Malcolm Turnbull has resulted in a re-positioning of the Federal Government’s approach to copyright law and innovation policy.

Under the aggressive leadership of Tony Abbott, the Federal Government took a hard line on copyright enforcement. The film studio Village Roadshow made significant political donations to both the Liberal Party of Australia and the opposition, the Australian Labor Party. The Attorney-General George Brandis pushed through the passage of the Copyright Amendment (Online Infringement) Act 2015 (Cth), with the rather docile assistance of the Shadow Attorney-General Mark Dreyfus. The Internet site-blocking legislation was dubbed the worst piece of legislation by the Electronic Frontier Foundation in 2015. Village Roadshow has already launched a copyright action over the Solar Movie regime in the Federal Court of Australia to test the new regime. Moreover, the Attorney-General George Brandis pushed for a copyright code, governing the relationship between copyright owners, intermediaries, and Internet users. He scorned the recommendations of the Australian Law Reform Commission to introduce into Australia law a broad, open-ended defence of fair use like the United States. Furthermore, the Abbott Government was an enthusiastic cheerleader for the passage of the Trans-Pacific Partnership, with its arsenal of intellectual property enforcement measures.

In contrast to Tony Abbott, who was hostile to science and technology, Australia’s New urbane Prime Minister Malcolm Turnbull has promoted an innovation agenda, and placed emphasis upon entrepreneurship, economic agility, and digital disruption. He has had significant exposure to intellectual property law and policy, as is well documented by Paddy Manning’s new biography, Born to Rule. Turnbull made his name in the ‘Spycatcher’ case, taking on and defeating the United Kingdom Government. As chairman of OzEmail, he was no doubt sensitized to copyright issues. The copyright collecting society APRA threatened an action for copyright infringement against the internet service provider, which was later settled. Turnbull took carriage of reforms of film copyright during the Howard Government. He seemed uncomfortable with a number of policies of the Abbott Government affecting the Internet. Peter Hartcher reported that Malcolm Turnbull battled with Tony Abbott over the proposal for copyright fines for Australian internet users. Turnbull was of the view that Abbott’s heavy-handed copyright proposals were ‘politically explosive.’ Interestingly, Turnbull has also been an outspoken critic of gene patents – a stance that has been reinforced by the recent High Court of Australia ruling against Myriad Genetics Inc.

Malcolm Turnbull has shifted the responsibility for copyright law away from the Attorney-General George Brandis to the new Minister for Communications and the Arts, Senator Mitch Fifield. Just before Christmas, in December 2015, the Ministry for Communications and the Arts released an exposure bill, the Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth). The proposed legislation has several key components.

  1. The Marrakesh Treaty, Copyright Law and Disability Rights

Maryanne Diamond, ‘An Information Revolution for the Blind’

A number of prominent Australians pushed for the World Intellectual Property Organization Marrakesh Treaty on Copyright Law and Disability Rights. Graeme Inness, Maryanne Diamond, and Ron McCallum provided eloquent testimony for the need for copyright law reform to address the problem of disability discrimination. The Director-General of the World Intellectual Property Organization Francis Gurry helped shepherd the agreement through the negotiations. The Australian Minister for Foreign Affairs, the Hon. Julie Bishop, has been a prominent supporter of the ratification of the agreement.

Australia has been a proud supporter of the World Intellectual Property Organization Marrakesh Treaty on Copyright Law and Disability Rights. Australia ratified the agreement in December 2015. The Minister for Foreign Affairs, the Hon. Julie Bishop, emphasized : ‘Australians with vision impairment will have greater access to books and other published materials in accessible formats such as large print, braille or audio following Australia’s ratification of the Marrakesh Treaty’ She stressed that ‘the Treaty is a significant international agreement that will help 285 million people with vision impairment worldwide to access these materials.’ Bishop commented ‘Ratifying this treaty is an important part of the Government’s commitment to supporting Australians with disability. Accessible format materials are essential to ensuring all Australians can engage fully in school, work and our communities.’ She also observed: ‘By improving access to large print, braille and audio materials in the Indo-Pacific, the Marrakesh Treaty will also support economic and social development in our region.’

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) seeks to provide access to copyright works by persons with a disability. Section 113E (1) of the bill provides that ‘a fair dealing with copyright material does not infringe copyright in the material if the dealing is for the purpose of one or more persons with a disability having access to copyright material.’ Section 113E (2) considers a number of matters to be taken into account in an assessment of fair dealing. Section 113F deals with the use of copyright material by institutions assisting persons with a disability.

These amendments are certainly a significant improvement over the rather narrow, limited, and defective provisions currently found in Australia’s copyright laws. In its inquiry into Copyright and the Digital Economy, the Australian Law Reform Commission lamented

The digital era creates the potential for vastly improved access to copyright material for people with disability. However current legislative arrangements mean that this potential is not fully realised. The Copyright Act provides for a statutory licence for institutions assisting people with disability. The licence allows these institutions to make accessible versions of copyright works, but its scope of the licence is limited, the administrative requirements are onerous, and it has not facilitated the establishment of an online repository for people with print disability. The exceptions available for individuals—fair dealing, format shifting and the s 200AB ‘special case’ exception—are also limited in their scope. The widespread use of technological protection measures (TPMs) is creating significant barriers to access for people with disability.

The Australian Law Reform Commission recommended that access for people with disability should be addressed by a broad defence of fair use. The alternative proposal of the Australian Law Reform Commission was the introduction of a defence of fair dealing for the purpose of access for people with a disability. This fall-back option has been the one adopted and embraced by the Federal Government.


  1. Cultural Preservation

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) also proposes reforms in respect of copyright exceptions for public libraries, parliamentary libraries, and public archives.

Section 113H of the Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) provides that an authorised officer of a library or an archives does not infringe copyright by using material for the purpose of preserving the collection comprising the library or archives. This measure is subject to further procedural qualifications.

This reform is designed to address the rather clumsy way that Australian copyright law deals with cultural preservation. The moral rights regime has a clearcut exception for preservation. However, the system of economic rights has not dealt with the issue very clearly thus far.

There remain larger issues in respect of reforming copyright law for libraries, archives, galleries, museums, and other cultural institutions. In his book, BiblioTech: Why Libraries Matter More Than Ever in the Age of Google, John Palfrey reflects that ‘the law of copyright has become a hindrance when it comes to building strong libraries in a digital era.’ He observes that ‘librarians have been at the forefront of efforts to update the law to support their good works into the future.’ Palfrey concludes: ‘Without changes to current law and policy, librarians will have a terribly hard time accomplishing their public-spirited mission in support of people living in a democracy.’


  1. Cooking for Copyright


Cooking for Copyright at the QUT Library

In Australian, there has been much concern about the indefinite duration of copyright protection for unpublished works.

In response, Australian librarians held a Cooking for Copyright protest in 2015. Baking Bad, the librarians shared recipes of unpublished works on social media, and engaged in cooking festivals with the illicit recipes. The event was a runaway success, with massive media coverage of the issue, and wide popular support.

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) seeks to address the issue in respect of term of protection. The Department of Communications and the Arts emphasize: ‘The proposed amendments seek to harmonise the copyright term for published and unpublished works by creating a new general protection period of life plus 70 years that does not differentiate between published and unpublished works.’ The legislation proposes that the general term of protection would apply to works made before 1st January 2018 that remain unpublished at that date.

The amendments also propose to deal with the situation of unknown authors, and Crown copyright.


  1. Safe Harbours

Since the passage of the Copyright Amendment (Digital Agenda) Act 2000 (Cth), Australia’s ‘safe habour’ regime has been limited to traditional service providers, such as telecommunications networks and internet service providers.

For many years, Google and other information technology companies have been lobbying successive Federal Governments for a more expansive definition of service providers. Such companies have been fearful of being exposed to copyright infringement lawsuits in Australia, without the protection of a ‘safe harbour’ regime. Copyright owners, though, have fought against an expansion of the ‘safe harbour’ regime.

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) proposes to expand the current ‘safe harbour’ provisions in the Australian copyright legislation to include a broader range of entities.

  1. Parallel Importation

The Prime Minister Malcolm Turnbull and the Treasurer Scott Morrison have mooted the repeal of parallel importation restrictions in respect of books.

The parallel importation restrictions have been widely criticised by the High Court of Australia, the Australian Competition and Consumer Commission, the Productivity Commission, and Australian parliamentary investigations into IT Pricing.

There has been great concern that publishers have used parallel importation restrictions to keep book prices high in Australia, and to restrict foreign competition.

Rather shrilly, publishers and authors have accused the Turnbull Government of ‘ideological vandalism’.

However, looking at the text of the provisions, the parallel importation restrictions do not serve any direct purpose of protecting local cultural content.

Indeed, under international intellectual property agreements, the Australian Government would not be able to discriminate in favour of local authors and publishers, without breaching the basic principle of ‘national treatment’.

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) does not contain, though, any legislative measures to repeal the parallel importation restrictions in respect of books.


  1. Fair Use

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) does not address the larger question of whether Australia should have a defence of fair use like the United States.

The Turnbull Government should go further and adopt a defence of fair use, as recommended by the Australian Law Reform Commission. The Australian Law Reform Commission observed:

Fair use also facilitates the public interest in accessing material, encouraging new productive uses, and stimulating competition and innovation. Fair use can be applied to a greater range of new technologies and uses than Australia’s existing exceptions. A technology-neutral open standard such as fair use has the agility to respond to future and unanticipated technologies and business and consumer practices. With fair use, businesses and consumers will develop an understanding of what sort of uses are fair and therefore permissible, and will not need to wait for the legislature to determine the appropriate scope of copyright exceptions.

A defence of fair use would be an agile, innovative, and disruptive policy option, which would help reinforce the Turnbull Government’s Innovation Agenda.

Professor Kathy Bowrey from the University of New South Wales noted that the policy papers of the Innovation Agenda did not address copyright law. She noted that ‘copyright rules and regulations sit behind all the agendas found in the innovation statement.’ Bowrey insisted: ‘If the “ideas boom” is to move from mediocre slogan to stimulate real “leaps” and progress so that the “brightest” can shine, there is a need for more than a redistribution of public funds to starving public institutions.’ She maintained: ‘Copyright law reform needs to be taken seriously as a political concern, not left as a plaything shunted from inquiry to inquiry, while other games are carried on behind the scenes.’

The failure to address fair use would leave Australian innovators, entrepreneurs, and digital disruptors at a significant disadvantage. Start-ups in Silicon Valley, Boston, and Brooklyn have been able to thrive, with the help of the protection afforded by the United States defence of fair use. By contrast, Australian innovators would be exposed to the threat of actions for copyright infringement, given the narrow and limited operation of the defence of fair dealing.

The problem would be further exacerbated by the possible passage of the Trans-Pacific Partnership. The Trans-Pacific Partnership would provide for stronger, longer copyright protection throughout the Pacific Rim, and empower incumbent copyright industries, rather than start-ups and digital disruptors. As Maira Sutton points out, the Trans-Pacific Partnership poses certain threats and challenges to copyright defences and exceptions – like the defence of fair use.


It is an exciting time to be a copyright lawyer in Australia. The new Prime Minister Malcolm Turnbull has shifted the Conservative Coalition back towards a more centrist position in respect of Australian copyright politics. He has emphasized that copyright law should not only protect the private interests of copyright owners, but it should also promote innovation, competition, and the larger public interest. There have been a number of modest but meaningful copyright law reforms mooted in the new Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth). Such measures address longstanding problems in respect of copyright law and disability rights; cultural preservation; the copyright duration of unpublished; and safe harbours. The proposals are still provisional and contingent. It remains to be seen whether this bill will pass before the next Australian election. Turnbull and his Treasurer Scott Morrison have also considered the repeal of anti-competitive parallel importation restrictions. There is a need for the new Turnbull Government to address the Australian Law Reform Commission’s outstanding proposals in respect of copyright exceptions and the digital economy. A defence of fair use would be of particular help and assistance for Australia’s innovators, entrepreneurs, and digital disruptors. The future balance and equilibrium of Australia’s copyright laws will also be affected by the potential passage of the Trans-Pacific Partnership, with its expansive Intellectual Property Chapter.

rimmer2Dr Matthew Rimmer is a Professor in Intellectual Property and Innovation Law at the Faculty of Law in the Queensland University of Technology (QUT). He is a leader of the QUT Intellectual Property and Innovation Law research program, and a member of the QUT Digital Media Research Centre (QUT DMRC), the QUT Australian Centre for Health Law Research (QUT ACHLR), and the QUT International Law and Global Governance Research Program (QUT IL GG). Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, intellectual property and climate change, and Indigenous Intellectual Property. He is currently working on research on intellectual property, the creative industries, and 3D printing; intellectual property and public health; and intellectual property and trade, looking at the Trans-Pacific Partnership, the Trans-Atlantic Trade and Investment Partnership, and the Trade in Services Agreement. His work is archived at SSRN Abstracts and Bepress Selected Works.




Fair Use Week 2016: Day Four Interview With #WTFU Founders


In a video posted last week week, famous YouTube sensation The Nostalgia Critic laid out the amazing case against the “big media” who are using YouTube to bully independent creators, regardless of their right to fair use. He titled the beautifully articulated argument “Where’s the Fair Use?” and created the now famous hashtag #WTFU.  His argument brings to light many of the strange, and borderline abusive, devices used to take down videos that are clearly within the realms of fair use.

In honor of Fair Use Week, we present an interview with the team behind #WTFU:

Kyle K. Courtney (@KyleKCourtney): Before we get into the #WTFU controversy, please tell us a little bit about your work, and how fair use is a critical aspect of that work. [Channel Awesome]: We do a variety of shows that hinge on pop culture, but our most popular show is the Nostalgia Critic, a show that we have been doing for over eight years. The show revolves around reviewing movies, and with reviewing movies we show clips. The clips shown are either directly talked about as a voiceover during the clip’s presentation or after the clip has been shown. The discussion of the clips can direct criticism or commentary and in our newer videos these clips lead to a parody sketch. Fair use states that clips from movies and television can be used under the basis of commentary, criticism, education, and parody.
WTFUYour #WTFU video has gone viral among many different communities beyond your typical YouTube movie fanbase, including (from our research) lawyers, librarians, think tanks, IP policy makers, artists, documentarian, and more! (It has had over 1 million views, 100 thousand “likes,” and 15 thousand comments). What was the moment, or “the straw that broke the camel’s back” that caused you to make this video? This has been something that we have dealt with for most of our existence. We originally had to leave YouTube back in 2008 due to the constant copyright claims on our 5 Second Movies and early Nostalgia Critic episodes. Back then you didn’t have the ability to fight it, and after three claims your channel was gone. We started our own website  thatguywiththeglasses.com, now channelawesome.com) and used blip.tv to host our videos. We started bringing our content back to YouTube with the help of blip.tv in early 2013 on the League of Super Critics channel, and then we created our own channel in July of 2014. (achannelthatsawesome) We finally bit the bullet and started uploading our new Nostalgia Critic episodes in May of 2015 and started seeing what to expect on YouTube. Claims from people stealing public domain content and saying they owned it, false companies claiming content, and claims on dozens and dozens of Nostalgia Critic reviews. The videos that we recently made on the subject were something that we were planning to do for a while now, and with what has been happening on YouTube with people starting to really discuss it, it just seemed like the time was right. We were not getting any answers from YouTube or the people claiming our content, and the longer content creators stayed silent the more frequently this was going to happen.

We have talked about it before though. On the Tommy Wiseau Show, filmed during our The Room, How 5 Second Movies Work, and Leave 5 Second Movies Alone, both related to our initial exodus from YouTube.) Heck, we flew 10 people out to DC during the SOPA/PIPA fiasco and met with Representatives and staffers, informing them how those two laws would affect our small business.
You mention a few uses of the copyright takedown system being used for ulterior motives, outside of the protection from copyright infringement. One is the use of takedowns to suppress, scare, or censor opinion, speech, or viewpoint. Can you tell us more about that and its potential effect on all web-based content producers? Aren’t there repercussions for fake takedown abuses like this? The example provided by Jim Sterling is a perfect example on how companies can use the DMCA system to take down negative reviews; honestly, he sums this up perfectly.

As far as we know, there are no repercussions for false claims and takedowns, as these companies continue to do so, even after releasing manual claims and letting DMCA takedowns expire.

In your experience, which YouTube claims are more dangerous: the claims made through the rightholder’s automated algorithm or manual claims, which means a human being actually viewed and decided that their claim was valid? The takedowns done through DMCA are of course the most dangerous, at least on a creator’s account. YouTube automatically issues a strike after a DMCA claim is processed. Generally one strike on an account limits you to videos that are 15 minutes or less, but the most infuriating thing about what one strike does to an account is the fact that you can’t appeal any more claims while the strike is active. You can fight it and win (this can take 10 business days), but if you let it sit then that penalty would last for 6 months. On the other side, Content ID claims are just as bad in some cases. Through the automated system, using as little as 15 seconds of a piece of work can cause the Content ID system to place up to four different infractions on the video. 1) Tracking: they can track our videos stats (I have never seen this used). 2) Monetization is disabled: no one can make money off the video. 3) Monetization is taken: the claimant takes the money the video makes until the content owner files a counterclaim, and then no money is made on the video until the claim is resolved (this can take up to 3 months). 4) Blocked videos: this one most people aren’t talking about but I believe it’s the worst one. The claimant is basically getting the effect of a DMCA takedown without issuing one. A DMCA takedown requires YouTube to take the video down (no one can see it); a global block does the exact same thing. No one can see the video. Global blocks can be placed automatically after “infringing” content is found by the Content ID system without a human looking at. Companies are getting a DMCA takedown without the legal process of one!
I think one of the most shocking aspects of the video was the section where you cover the options for the takedown claimant, which includes, without proof of an actual, legitimate takedown, the fact that the claimant can take your monetization of a video (for those that are not YouTube savvy, this means engorging any profits made by the video producer) until you file a counterclaim, and even potentially keep that money. Can you talk about when this happened to your program? Could you recover that money at amonetizell?


This happens all the time. I believe we currently have nine videos being monetized by the claimant, and currently are fighting two of them. The system allows only three counterclaims to be open at a time on a YouTube account, well at least on the creator’s end. Filing three at once potentially could result in a channel deletion if all three come back with takedowns, plus what if we have a new video that gets claimed right out of the gate. We’d want to fight that right away. Our Event Horizon review was claimed a day after it went up on YouTube, and I guess luckily for us the claim was released in 2 days. We can’t recover the money. The period for when the video is claimed by the claimant and then countered by us results in the claimant keeping the money. After a counterclaim is in place, YouTube will not put ads on the video until the claim is settled. This results in lost money for the YouTube content creator if they win their case.

You talk about an uptick in the amount of takedowns issued over the last year. What do you think is driving this move? Honestly, we have theories, but really at this point they are just that.
These programs create “safe harbors,” why do you think legitimate content makers, like yourself, are being lumped in with pirates who are actually infringing? Intentionally? No. Unintentionally? Yes. The system currently in place is and has been abused for a while, and over time claimants have realized that they can claim anything and everything and not have a single repercussion. One of our friends, Brad Jones, had a video that had zero copyrighted footage in it claimed. That video was just he and a friend talking in a car about a movie they just saw. Another YouTuber, Chibi Reviews, had DMCA takedowns done on his account just because he used a thumbnail with a copyrighted image on it; nothing else in the video had anything remotely copyrighted. They’re just taking advantage of the system, because it allows them to.

The #WTFU video notes that you have changed your production in order to try to avoid getting these takedowns (not using clips, re-enacting scenes, etc.). Has this helped at all in lowering the amount of takedowns you have received? And, from a creator’s perspective, how frustrating is it that you have to change the way you make your show and, in fact, alter your creative output because of fear of legal action? Over the past 3 years we have been inserting sketches into content, shortening the clips used, muting any audio from the movie that we aren’t directly talking to or critiquing, and recently we started doing reviews with just reenactments and no footage. These are done on titles that we know will get claimed instantly. Having a new Nostalgia Critic episode claimed takes away a large chunk of money from us, and doing clip-less reviews is the only way to make sure we’re safe, but, as stated in above, even that might not be true going forward. Frustrating? Last year a new claim was a weekly occurrence while this year we’re dealing with claims almost every other day now. It’s tough to get through the backlog of claims when A) you have a bunch of them (we’re currently sitting on 14), and B) you really can only fight two at a time and hope it takes less than 3 months.

You recommend developing the same types of penalties in the system for copyright infringers as for those that make false claims. In your words, how would those “false claim penalties” work? For the false claim penalties, blatant repeat offenders need to have some sort of action placed on them. The tricky part is they all have some agreement with YouTube after the Viacom case, and with that said all these issues aren’t fully on YouTube’s end. YouTube will never get an OK from them to disable their claim process via Content ID because there are people who still upload full movies, television episodes, and music onto YouTube. So, penalties at least relating to Content ID would never happen.

What could help this is adopting a universal percentage used on content through the video. Fifteen seconds should not be the beginning of this and 20 seconds shouldn’t be the standard that they use. The EFF proposed 90% of the original work be what is considered infringing. Heck, we’d be fine with 40% becoming the new bar.

Then there are manual claims and DMCA takedowns. Manual claims mean that someone “viewed” the video and then claimed it as infringing. The DMCA has you state, under perjury, that you believe the video is infringing on your copyright. So, when these claimants check that little box about perjury, and then let the claim lapse after the counter DMCA is filed, shouldn’t perjury possible be brought to the table? Manual claims should be the same, as they are doing the same thing as a DMCA claim, by manually claiming that they saw the video and found it to be infringing. If the claimant issues a manual claim and releases the claim, or if the claimant issues a DMCA takedown and lets it lapse or releases the claim, then their ability to do so in the future for 6 months should be limited just as our accounts get limited by their actions.

The Lenz case was viewed as a victory for fair use over these abusive takedown claims. Why do you think the situation has gotten worse, despite the Lenz’s holding that requires a fair use inquiry prior to issuing a takedown notice? Currently, we don’t see any change resulting from that ruling.

On a side note, we have had videos of ours show on TV without asking our permission, and we’re fine with that. Most of the short videos used were shown under fair use. The people showing our videos edited them and then provided commentary or criticism on said video. Fair use is a two-way street. One party should not control both sides because currently the idea of a fair use defense only benefits them.

In the end, this problem, while running rampant on YouTube, is caused by the very outdated copyright law that we currently have here.  One of the more frustrating things to come from this is people telling us that this whole situation has them scared to continue doing their videos on YouTube, and then hearing others say that they’d love to start up a YouTube channel but the current system in place has them too frightened to even try.

Fair Use Week 2016: Day Three With Guest Expert Brandon Butler


In Defense of Fair Use: The Slow Food Movement Tells Us Something Important About Our Fair Use Rights

by Brandon Butler

Eat food. Not too much. Mostly plants.

That, more or less, is the short answer to the supposedly incredibly complicated and confusing question of what we humans should eat in order to be maximally healthy.

Michael Pollan, Unhappy Meals, NY Times Magazine, Jan. 28, 2007. Available online here.

Use fairly. Not too much. Have reasons.

That, more or less, is the short answer to the supposedly incredibly complicated and confusing question of how in-copyright works can be used lawfully under the fair use doctrine.

Food writer Michael Pollan has made a big impact on the way people think about what they eat. In a series of magazine pieces, books, lectures, and a recent documentary, Pollan has proposed a kind of paradigm shift, away from what he calls “nutritionism” and toward a simpler approach to healthy eating embodied in his seven-word epigram, “Eat food, not too much, mostly plants.”

I’m a big fan of Pollan’s thinking and writing, and not just because my law clinic students helped to vet the fair uses in the PBS documentary about him (#humblebrag). The forces he describes as shaping (and misshaping) the way we think about food are actually at work in many areas of life. Indeed, almost everything Pollan says about our dysfunctional relationship to food is in some sense true of copyright law, and especially of the doctrine of fair use. Let me explain.

The Problem: A Pseudo-scientific and Alienating Ideology


Pollan calls our dysfunctional relationship with food “nutritionism.” In “Unhappy Meals,” he describes nutritionism as:

not a scientific subject but an ideology. Ideologies are ways of organizing large swaths of life and experience under a set of shared but unexamined assumptions.

… In the case of nutritionism, the widely shared but unexamined assumption is that the key to understanding food is indeed the nutrient. From this basic premise flow several others. Since nutrients, as compared with foods, are invisible and therefore slightly mysterious, it falls to the scientists (and to the journalists through whom the scientists speak) to explain the hidden reality of foods to us. To enter a world in which you dine on unseen nutrients, you need lots of expert help.

Eaters in the throes of nutritionism are bombarded with the latest theories about which nutrients are good for them and which are bad. They go to the grocery store looking for foods that proclaim an abundance of fiber, or the absence of carbs, for example. This orientation systematically favors processed foods over natural foods, as the former can be easily engineered and branded to fit the latest trendy research. It disfavors simple foods like fruits and vegetables, and nutrient-blind advice like “eat less.” Instead, we are led to believe that so long as our cookies and beer are low-carb or rich in “good” cholesterol, or whatever, we can eat and drink as much as we like.

Fair Use

The situation is alarmingly similar where fair use is concerned, thanks to what I call “copyFUD.” For years our basic orientation toward copyright has been one of fear, uncertainty, and doubt, with the sense that whatever it is that makes acts infringing or fair, it’s not something ordinary people can see or understand. No one can know what their rights are without a judge’s pronouncement, or at least a lawyer’s very expensive professional opinion. Even advocates who claim to speak for the public interest have said things like “Fair use is just the right to hire a lawyer.” Ouch.

Just as nutritionism leads you to the tender mercies of processed foods, copyFUD leads you to cramped guidelines and needless licensing. You cling to advice like “Fair use allows 10% or 1000 words, whichever is shorter,” or “Fair use is just an affirmative defense, so if you can buy a license, then you had better pay up.” According to copyFUD, the law, like the microscopic particles that make food good or bad, is not something an ordinary person can perceive or understand. Count calories, count words and pages, consult obscure legal-looking guidelines. Buy some low-fat Oreos™ and a blanket license from someone or other and everything will be OK. Anything else would be irresponsible.

The Root Cause: Money (duh)


Like so many things, nutritionism and copyFUD have their roots in the machinations of people whose salary depends on your believing them. Pollan suggests that national policy may have been set on a course toward nutritionism thanks to the interventions of the meat and dairy lobbies into a congressional committee on US dietary needs in the late 1970s:

Responding to an alarming increase in chronic diseases linked to diet — including heart disease, cancer and diabetes — a Senate Select Committee on Nutrition, headed by George McGovern, held hearings on the problem and prepared what by all rights should have been an uncontroversial document called “Dietary Goals for the United States.”

…the committee drafted a straightforward set of dietary guidelines calling on Americans to cut down on red meat and dairy products. Within weeks a firestorm, emanating from the red-meat and dairy industries, engulfed the committee, and… [t]he committee’s recommendations were hastily rewritten. Plain talk about food — the committee had advised Americans to actually “reduce consumption of meat” — was replaced by artful compromise: “Choose meats, poultry and fish that will reduce saturated-fat intake.”

The change may seem subtle, but its effects were stark. As Pollan observes,

“the new language exonerates the foods themselves; now the culprit is an obscure, invisible, tasteless — and politically unconnected — substance that may or may not lurk in them called ‘saturated fat.’”

So long as the food could be manipulated or branded in a way to highlight this or that nutritional characteristic, there was no risk of anyone “eating less” (or buying less) of anything.

Fair Use

Similarly, when it came time to rewrite the copyright law (coincidentally around the same time Senator McGovern’s committee was meeting to delibarate about diet), the question of how to protect the interests of the public (especially teachers and students) presented a challenge to publishers and others whose bottom lines would swell if permission or payment was required for every new use of copyrighted materials. Publishers were ultimately able to convince key congressional committees to reject the call for a blanket exemption for educational uses and rely instead on flexible fair use. Some educators’ representatives then negotiated a set of non-binding “Guidelines” that, as McGovern’s commmittee had done, replaced broad and flexible principles (more on those later) with a strained and miserly gloss literally designed to ensure fair use would not touch anyone’s bottom line.

The House Judiciary Committee dutifully included these Guidelines in the legislative history of the Copyright Act of 1976, and they have haunted educators ever since. These Guidelines were initially characterized as a “safe harbor,” i.e., a bare minimum of agreed-upon uses, but thanks to the “right to hire a lawyer” copyFUD that quickly sprouted up around fair use, the Guidelines were often treated as the outer limits of fair use.

The Solution: A Cultural, Ecological Approach


The antidote to nutritionism, Pollan says, is to take “a broader, less reductive view of what food is, one that is at once more ecological and cultural.” Healthy eating, Pollan argues, has always been a matter of being in the right kind of relationship with other organisms in a balanced ecosystem.

Species co-evolve with the other species they eat, and very often a relationship of interdependence develops: I’ll feed you if you spread around my genes.

These relationships are highly complex and involve interactions between multiple aspects of both the eater and the eaten. Most importantly, they are relationships to whole foods, not to nutrients. Their development over time has endowed us with a natural sense of which foods are good for us and when – what looks ripe, what smells delicious, and so on. Processed foods that give us heaps of this or that nutrient but eliminate others, or fool us with artificial color, flavor, etc., undermine that natural sense and lead us astray. Once we think of food at a macro level, we can see where the typical American diet has gone astray and start to see the kinds of changes that would bring us into a better relationship to our food.

Fair Use

What does a cultural, ecological, macro-view of fair use look like? Well, it’s exactly the view we find in the US Constitution, which instructs congress to make copyright and patent laws that “promote the Progress of Science and the useful Arts.” Progress in culture requires a legal system that allows ideas to move and new generations to make new uses of existing works. That, in turn, requires a healthy ecology of makers, fans, teachers, students, collectors, curators, distributors, describers, and on and on.

Like Pollan’s eaters, our senses of fairness, of legitimate community practice, the norms, values, and relationships that have grown up around production, consumption, and reuse of culture over time can give us intuitions about when use-without-permission will make the system work, and when it will undermine the system’s healthy functioning. To a much larger extent than the copyFUD acknowledges, we can intuit when a use is fair and when it is an infringement by engaging our sense of fairness, proportionality, and reason.

My version of Pollan’s epigram is, “Use fairly. Not too much. Have reasons.”

Use Fairly

Like “Eat food,” “use fairly” sounds so broad that it’s almost useless, but just a little elaboration is enough to give it some shape, and to connect it to the caselaw. The core of fairness in this context, as courts have told us from the beginning, is that a fair use is not a “merely superseding” use; in other words, a fair use takes from an existing work without displacing it (or its typical derivative works, like film adaptations and sequels) in the market. Some courts (the ones with a more economic orientation) talk about fair uses being “complementary,” which is a similar notion.

A book review is a good example of a non-superseding fair use. A good review can give deep insights into a book’s themes, strengths, and weaknesses, but it is still no substitute for reading the book. It’s a complement to the book—it helps readers to understand and appreciate the book, and (most importantly) to decide whether to read it. Authors, publishers, and reviewers understand that all are better off in an ecosystem where reviewers can copy from their subjects as part of their reviews without payment or permission.

Another touchstone of fairness, and in a way the converse of “not superseding,” is to do something different or new, and to add value with your use. Search engines are a great example of this. Search engines work by copying the full text of the works they index, and some have argued that this means that by definition they do not add value. In reality, of course, anyone who tried to use the internet before good search engines can tell you exactly what a good search tool adds to the pages it copies. And, importantly, a search engine doesn’t replace the pages it searches; internet users still click through to explore the results.

These two aspects of fairness—non-superseding and different/new/value-added purpose—are captured in the legal concept of “transformativeness.” Some critics of recent fair use case law have tried to portray “transformative use” as having gone too far and somehow swallowed the doctrine. In reality, however, “transformative” is just the latest short-hand for this very old notion of fairness. Courts and practitioners lost sight of these basic concepts for a while, distracted by copyFUD and an obsession with highly technical arguments about market failure. The courts’ turn to transformative use is, in its own jargon-y and technical-seeming way, a Pollan-ist return to fundamental principle. The world outside of the courts is now catching up to this shift.

Not Too Much

For a long time, from at least the late 1970s all the way into the 1990s (and in some places still today), “how much?” was considered the key question, if not the only question, to ask when deciding if a use was fair. If you used a sufficiently minuscule amount, your use might be fair. Once you crossed some arbitrary line, however, your use became infringing. This was the approach of the aforementioned 1976 Classroom Guidelines, which gave miserly minima for a variety of contexts—1000 words or 10% whichever is less, etc. More recently, the district court in the Georgia State University e-reserves case used a hard quantitative line as part (though not all!) of its fair use calculus; that part of the opinion was overturned on appeal.

Nowadays it’s clear that there is no simple answer to the question of “how much is too much” for fair use, and that’s a good thing. The appropriate amount depends on what you’re doing with the material. Sometimes, as with search engines or critical use of images, the entire work may be the appropriate amount. In other contexts, as in book reviews, the appropriate amount to achieve your new purpose will be much shorter.

One important final point on the question of amount: necessity is not the standard. Some guides say that you should use no more than is necessary for your purpose, but courts have said clearly and repeatedly that the question of amount is less miserly than that. “Not too much” captures it nicely: it should be an amount that makes sense in light of your purpose.

Have Reasons

This last point is a bit “meta”—it’s not so much about how to know your use is fair as it is about how to be prepared to defend your use if there are ever questions or concerns. In a way, it amounts to not much more than “Be thoughtful.” But, if you want to be more specific, you should be prepared to account for your use with a clear story addressed to the first two parts of this epigram: Why is your use fair in a colloquial sense—not a mere substitute, but something new and valuable in its own right? And why is the amount you used not too much, given your purpose?

Having reasons is easier when you can point to community practices that help explain at a high level why certain kinds of recurrent uses are typically fair, and ways to tailor your use to stay within the bounds of community norms.


So, that’s it. Use fairly. Not too much. Have reasons. In some ways it’s not as “easy” as counting words or paying for potentially needless licenses. But, like buying, preparing, and eating good food, making healthy fair use is deeply rewarding. It keeps the cultural ecosystem in balance, too.


Brandon Butler is Director of Information Policy at University of Virginia.  There he works on implementing programs to guide the University Library on issues of intellectual property, copyright, and rights management for scholarly materials. He is also Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law. Before that, Brandon was Director of Public Policy Initiatives at ARL from 2009 to 2013.