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with the work from readable text to minable data in order to better understand connections between literature and historical documents and society.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 is for innovation!

by Dave Hansen

Remember 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.

This 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.

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 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 HathiTrust, South 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.

Coming 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.