fair use

Fair Use Week 2023 (10th Anniversary): Day Four With Guest Expert Juliya Ziskina

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The second post of Day Four of the 10th Anniversary of Fair Use Week with a write up from Juliya Ziskina, Policy Fellow at Library Futures. Juliya examines two pending fair use cases and asks an important existential question.  -Kyle K. Courtney

Is Fair Use Really the Answer to Life, the Universe, and Everything?  

By Juliya Ziskina

Here on Harvard Library’s Fair Use Week blog, it is not a shocking statement to say that we love fair use. Fair use is both crucial and nebulous—indeed, its nebulousness is part of its design, given that it serves as a type of safe haven, decided on a case-by-case basis. Where statutes in the modern day are formulaic and often distilled into a multi-part judicial test, fair use is relatively open-ended, allowing judges a good amount of latitude—not just in terms of how to apply the doctrine, but also when. As such, fair use’s role in copyright law has grown as litigants and judges often use fair use as a backstop for other means of deciding copyright claims.

Fair use is undoubtedly important, but overreliance on it is not necessarily beneficial for the outcome of copyright cases, or even for the doctrine itself. As Authors Alliance Executive Director Dave Hansen wrote during Fair Use Week in 2020, there is a “pressure to look to fair use as a way to avoid other hard questions about other areas of copyright law. If we look to fair use to solve all our copyright questions, that pressure could start to water down and ultimately threaten the coherence of the doctrine.” Similarly, Public Knowledge Legal Director John Bergmayer wrote nearly 10 years ago: “If you love fair use, give it a day off once in a while.”

Exclusively relying on fair use can result in unintended consequences. Employing a fair use analysis when one is not necessarily needed can undermine the stability of the doctrine, and can preclude other means of analysis that are not only better suited to the facts of a case, but could create better precedent.

Two recent cases currently before the courts are meaningful examples of Bergmayer’s and Hansen’s prescient observations: Andy Warhol Foundation v. Goldsmith, and American Society for Testing and Materials, et al. v. Public.Resource.Org. I’ll examine each of these in turn, and discuss why fair use was applied too broadly in Warhol and is also not the suitable framework for ASTM v. Public.Resource.Org.

Andy Warhol Foundation v. Goldsmith

In 1984, photographer Lynn Goldsmith licensed to Vanity Fair the right to use one of her photographs of Prince for the purpose of creating an illustration that Vanity Fair was commissioning for an article. Unbeknownst to Goldsmith, Warhol created the illustration for Vanity Fair. Further—also unbeknownst to Goldsmith—Warhol used Goldsmith’s photograph to create 15 additional works using the silkscreen process, known as his Prince Series. 

Goldsmith claims that she first discovered the existence of the Prince Series after Prince’s death in 2016, when Vanity Fair used one of the Prince Series images in a tribute issue. The Andy Warhol Foundation (AWF) sought a declaratory judgment that the Prince Series was fair use. Goldsmith counterclaimed for copyright infringement.

The lower court ruled in favor of AWF, finding that Warhol’s work was transformative and therefore that it was a fair use. The Second Circuit reversed on appeal. The Second Circuit focused on visual similarity of the works and the fact that both were “created as works of visual art” and are “portraits of the same person.” The Second Circuit refused to “seek to ascertain the intent behind or meaning of the works” contrary to the Supreme Court in Campbell v. Acuff-Rose Music, which instructed that courts must view a work as transformative if it adds a new “meaning or message.” (Importantly, the Campbell Court also made clear that a finding of transformative use, while important, is not necessary for a finding of fair use.)

And, as such, the district court and the Second Circuit positioned Warhol and its fair use analysis as revolving around a single, critical concept: “transformativeness.” The issue with this is that the vast majority of modern courts already use the transformative use concept throughout the fair use inquiry as the dominant means of resolving various fair use questions. Once courts determine that a use is transformative, that determination often seems to dictate the rest of the fair use analysis and, ultimately, the case’s outcome. As one study asked: “is transformative use eating the fair use world?”

Warhol is a useful example. Rather than centering on the lawfulness of the Prince Series, the lower courts should have focused more narrowly on the lawfulness of the Andy Warhol Foundation’s licensing of the Prince Series for reproduction and distribution in Vanity Fair. Judge Dennis Jacobs argued in his concurring opinion that, properly understood, this case does not necessarily address whether the creation of appropriation art is a fair use, but whether the licensing of a derivative image for widespread distribution in a magazine is a fair use. According to Judge Jacobs, fair use is about uses, not works. Perhaps, he offered, some uses of the Prince Series may be within the scope of fair use, even if others are not. Specifically, while licensing the Prince Series as images of Prince competes directly with Goldsmith’s exploitation of her photograph, the creation of the original artworks did not, nor do other sorts of licenses (such as museum displays).

Why does it matter that the courts viewed the Warhol case through a broad fair use lens? As detailed in the Library Futures, et. al. amicus brief, this decision could impact libraries and archives because research, teaching, scholarship, and preservation rely on the stability of fair use. 

Upending our understanding of fair use could upend many of a library’s functions and make it harder for libraries and researchers to leverage fair use to create new research tools or improve accessibility of collections, such as in Authors Guild v. Google and Authors Guild v. HathiTrust. Incidentally, in an attempt to make fair use more predictable to supposedly ensure consistent application, the Court risks undermining the stable understanding of fair use that has already existed since Campbell. This potential result could have been avoided by taking a narrower fair use view.

American Society for Testing and Materials, et al. v. Public Resource Org

ASTM v. Public.Resource Org, currently pending in the D.C. Circuit Court of Appeals, is also a case that unsuitably applies a fair use analysis. In ASTM v. Public.Resource Org, several major industry associations, including ASTM, are suing to prevent Public.Resource.Org, a small, but mighty nonprofit organization, from posting reference standards (such as building codes) online. Many agency regulations incorporate reference standards developed by private organizations, such as ASTM. Although these standards have the force and effect of law once they are incorporated in agency regulations, they are not printed in the Federal Register or the Code of Federal Regulations and they can often be difficult for the public to access. ASTM sells hard copies and digital versions, and makes their standards available for free online in “read-only” mode. Public.Resource.org—an organization devoted to making laws and other government documents available to the public—purchased physical copies of the plaintiffs’ standards and scanned and digitized copies to make them freely available online to the public. All of these standards have been incorporated by reference into federal law. ASTM and other standard development organizations sued Public.Resource Org for copyright infringement.

The district court concluded that such standards as incorporated into the law are protectable by copyright. On appeal, the D.C. Circuit Court of Appeals reversed and remanded, sidestepped addressing whether the standards retain copyright after incorporation by reference into law, and instead instructed the lower court to analyze the Public.Resource Org’s use of the standards (e.g. posting them online) primarily through the lens of fair use. The court recognized that there is a spectrum of incorporated standards that ranges from those that “impose legally binding requirements” to those that “serve as mere references but have no direct legal effect.” This wide variation created difficulties in determining which standards are actually “the law.” This conclusion led to the court’s sole focus on Public.Resource Org’s fair use defense. In March 2022, the lower court issued an opinion that would allow Public.Resource Org to reproduce 184 standards under fair use, partially reproduce one standard, and deny reproduction of 32 standards that were found to differ in substantive ways from those incorporated by law. ASTM appealed the case to the D.C. Circuit, where it is currently pending.

Performing this analysis through a fair use lens precludes a more important discussion about copyrightability and public access to the law. As argued in the Library Futures, et. al. amicus brief in support of Public.Resource.org, when a law-making entity incorporates a standard by reference into a rule or regulation, the contents of the whole of that publication must be freely and fully accessible by the public. No one can own the law, and because fair use is only relevant for copyrighted works and not those in the public domain, it should not be the primary analysis here.

By framing the case through a fair use analysis, the court also avoids grappling with a broader question: what constitutes reasonable access to the law? Arguably, ASTM’s “online reading rooms” are not a sufficient substitute for unrestricted access to the law, because they are not actually “free.” In order to obtain access, ASTM requires users to register with their personal information, and agree to a voluminous, multi-part privacy policy and a nearly 1000-word contract that restricts users from transmitting the documents or performing simple cut and paste tasks. This scenario brings to mind an exchange about access in The Hitchhiker’s Guide to the Galaxy:

“But the plans were on display…”

“On display? I eventually had to go down to the cellar to find them.”

“That’s the display department.”

“With a flashlight.”

“Ah, well, the lights had probably gone.”

“So had the stairs.”

“But look, you found the notice, didn’t you?”

“Yes,” said Arthur, “yes I did. It was on display on the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard.’”

 –Douglas Adams, The Hitchhiker’s Guide to the Galaxy

Judge Katsas, in his concurrence in ASTM v. Public.Resource.Org,  echoed a similar idea, noting that “access to the law cannot be conditioned on the consent of a private party, just as it cannot be conditioned on the ability to read fine print posted on high walls.”

Ironically, the fair use analyses in AWF v. Goldsmith and ASTM v. Public.Resource.Org should be swapped: rather than centering on the works themselves, the Warhol Court should be centering on the use of the works at issue; and, rather than centering on Public.Resource.Org’s use of the standards, the court should be centering on the copyrightability of the standards themselves.  

These cases illustrate the important point that, despite how much we love fair use, before we jump to its analysis we should ask: “Is it copyrightable in the first place?” and “Is there a better lens through which to look at this case?”

Juliya Ziskina is a Policy Fellow at Library Futures and an attorney in New York City. While she was a law student, Juliya co-founded and led a successful initiative for an institutional open access policy at the University of Washington.

Fair Use Week 2023 (10th Anniversary): Day Four With Guest Expert Dave Hansen

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I am delighted to host our first post of Day Four of the 10th Anniversary of Fair Use Week with a write up from Dave Hansen, copyright expert and Executive Director Authors Alliance. Dave winds us through the complex relationship between licensing language and fair use in “How to Evade Fair Use in Two Easy Steps.”  -Kyle K. Courtney

How to Evade Fair Use in Two Easy Steps

by David R. Hansen

Fair use is an essential part of the Copyright Act’s careful balance—on the one hand protecting rightsholders’ interests, while on the other “[permitting and requiring] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” The Supreme Court has explained that fair use is a core part of what makes the Copyright Act compatible with the First Amendment guarantees of free expression. “First Amendment protections are ‘embodied . . . ’ in the ‘latitude for scholarship and comment’ safeguarded by the fair use defense.”

Fair use is what has allowed biographers to quote critically from originals when writing their own works, even when the copyrights are owned by the rich and powerful, as in cases involving L. Ron Hubbard and Howard Hughes. It’s what allows researchers to write and quote from unpublished manuscripts for literary criticism, as in this case about scholarly use of an unpublished work by Marjorie Kinnan Rawlings Baskin. It’s also what has allowed libraries to provide copies of books to blind readers, conduct research across texts, and make preservation copies. It allows reuse of images in support of news and political commentary, supports researchers who use tools like Google Image Search, and allows artists to use source materials to create transformative new works, such as parody.

Two easy steps to evade fair use

Given its importance, it may surprise you to learn that fair use is remarkably easy to evade. Savvy copyright owners do it all the time.  It takes just two easy steps.

First, you need to write a contract, specifically a “license” for the use of your work. In it, you dictate the terms on which you provide access to your work. You can impose almost any restrictions you like. Sometimes, contracts will restrict certain classes of uses: “you cannot reproduce this content for commercial use” or “you may download one copy of this work for personal consultation; you cannot reproduce or share any part of this work in whole or in part in any form, or share in any form with the public.”

Other contractual terms guard against specific threats. For example, Disney once brought (and won) an infringement suit over its movie trailers, which Disney would license to websites only if they agreed that the website “may not be derogatory to or critical of the entertainment industry or of [Disney] (and its officers, directors, agents, employees, affiliates, divisions and subsidiaries) or of any motion picture produced or distributed by [Disney].”

The key here is that you can essentially rewrite the rules, and forbid those aspects of fair use that you disapprove of. Want to make sure critics can’t use your words against you? Just say they can’t. Want to make sure libraries don’t make preservation copies without paying you first? Want to make sure that instructors of college classes can only use excerpts of your book—even very small excerpts—if they pay every single time? It’s your prerogative.

Second, you need to make sure that everyone who gains access to your work is bound by your license. This sounds hard, but with online distribution, it’s actually pretty easy.

In the world of print copies, this was difficult because copies had a way of traveling beyond the control of the original purchaser. The “first sale” doctrine meant that buyers of copies could freely transfer those copies to third-party buyers (e.g., someone who buys a book at a used book store, or who borrows a book from a library) or give them away. So, even if you got the original buyer to agree to your terms, those downstream users didn’t have to. But there is no widespread acceptance of a buyer’s “digital first sale.” So, buyers can’t just transfer the copies they purchase to downstream users. Everyone who wants access to the digital copy must agree to the license. All you have to do is make sure that your materials are distributed exclusively on digital platforms that are subject to your terms, and you’re all set.

That’s it. Two easy steps and you’ve practically eliminated fair use. For any use you haven’t already authorized, you can just say no, require them to pay whatever you want, or just refuse to grant access. And if they don’t comply, at a minimum you’ve got at a slam-dunk breach of contract claim.

Is it seriously that easy?

Unfortunately, this two-step approach–sometimes known as “contractual override”–reflects the prevailing wisdom and practice of many copyright owners. It is widely used online, by parties ranging from massive corporations such as Amazon or Netflix to small publishers and news outlets. And though it hasn’t been completely tested in the courts, when it has come up, the licensors have mostly prevailed. Because U.S. law so venerates “freedom of contract,” it has been difficult for policymakers or the courts to address the problem of rightsholders forbidding lawful fair uses under the terms of their licenses.

How did we get to this point? This is not a new or unexpected problem. You can look back to 1993, when law professor Jane Ginsburg  foresaw this state of affairs just as the possibilities of the internet were coming into view:

“In the digital environment posited here, contract protection may not be the fragile creature presumed in prior intellectual property preemption decisions. If access to works could be obtained only through the information provider (directly or through an authorized online distributor), and if copying could be electronically tracked or prevented, no ‘third parties’ to the contract would exist. When ‘we’re all connected,’ no functional difference may exist between a contract and a property right. At that point, it becomes necessary to consider whether limitations incorporated in the copyright law should be imported to its contractual substitute.”

Numerous others in the legal community soon made similar observations, such as Julie Cohen, Niva Elkin-Koren, and Andrew Shapiro, among others, who also wrote about aspects of this then-new challenge.

How to Protect Fair Use from Contractual Override

A handful of efforts to address this problem have been mounted in Congress. In 2003 and 2005, representative Zoe Lofgren introduced a bill appropriate called the BALANCE Act (“Benefit Authors without Limiting Advancement or Net Consumer Expectations”), which addressed both the unavailability of “first sale” in the digital environment and contractual override of fair use. The proposed legislation provided that “[w]hen a digital work is distributed to the public subject to nonnegotiable license terms, such terms shall not be enforceable under the common laws or statutes of any State to the extent that they restrict or limit any of the limitations on exclusive rights under this title.” The BALANCE Act was never passed however, and hasn’t been revisited in Congress since 2005.

Recent actions in other jurisdictions to address similar issues may provide renewed legislative interest and guidance on possible models to adopt. For example, in 2014, the UK passed legislation that limits contractual override of user rights—providing specifically that “to the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.” This language has been applied in the UK to exceptions that allow for making copies for persons with print and other disabilities, research and teaching, and text and data-mining. Similarly, the EU’s recent Copyright in the Digital Single Market Directive contains similar protections for copyright exceptions, as does Singapore’s recent Copyright Bill. So far, though, there has been no indication of real interest from Congress in the United States.

It’s also possible that states could craft legislation. There has recently been a surge of interest in bills in a number of states that are aimed at protecting libraries’ ability to license books on reasonable terms (bills that Authors Alliance generally supports). These bills also go beyond what fair use protects—seeking to, for example, ensure that libraries have broad access to ebooks on “reasonable terms,” and addressing problems of major publishers simply refusing to license books to libraries. Maryland was the first state to actually pass such a law, but it was struck down as preempted by federal copyright law in AAP v. Frosh. The court concluded that because federal copyright law dictates the scope of rights governing public distribution of works, it was impermissible for the state of Maryland to interject its own rules about the scope of the publishers’ distribution rights.

It’s possible that state legislation that is more narrowly tailored—e.g., a state law that focused solely on protecting fair use—would not suffer the same fate as the Maryland law. In fact, the reasoning of the Maryland e-lending case would seem to support such a state law, since a state law protecting fair use would be maintaining, rather than altering, the balance of rights as defined by federal law.

Legal Strategies in Court

It’s also possible that the courts could intervene, though to date they have mostly declined to do so. It seems to me there are two or three viable ways for judicial intervention to be effective:

First, Courts could conclude that contracts (created under and governed by state law) are preempted by federal copyright law, which is what defines the scope of copyright’s exclusive rights.  The Constitution provides that federal law supersedes conflicting state law, and Congress has provided specific instructions on how such preemption should apply, stating that “all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 . . .  are governed exclusively” by federal copyright law. Those exclusive rights of copyright owners are explicitly defined as being “subject to” the limitations including fair use, so it would make some sense for courts to view state law expansions of those rights as being in conflict with and therefore preempted by federal copyright law.

However, there are several negative precedents indicating that this approach may not work. Take Bowers v. Baystate, for example, a Federal Circuit case involving two competing computer aided design (CAD) software companies. Bowers contended that Baystate violated the terms of use on its software by reverse-engineer its product in violation of a clause explicitly prohibiting such use. Baystate contended that such reverse engineering was protected by fair use and that contract terms to the contrary should be preempted as inconsistent with federal law. The Federal Circuit, observing that as a general matter “most courts to examine this issue have found that the Copyright Act does not preempt contractual constraints on copyrighted articles,” concluded that “private parties are free to contractually forego the limited ability to reverse engineer a software product under the exemptions of the Copyright Act. . . . [A] state can permit parties to contract away a fair use defense or to agree not to engage in uses of copyrighted material that are permitted by the copyright law, if the contract is freely negotiated.”

Other courts addressing state contract law and other state law limitations on fair use (e.g,. this California right of publicity case) have largely followed the same approach. One notable exception to is Vault Corp. v. Quaid Software, Ltd., in which the Fifth Circuit invalidated a Louisiana law that permitted contracts to prohibit reverse engineering, even though federal law provides a specific exception (Section 117) that allows for such reverse engineering. Although not directly addressing fair use, the court’s holding could apply equally to state law contractual restrictions on fair use. The issue has not directly reached the Supreme Court, though there is a case, Genius v. Google, currently pending on a Petition for Certiorari that asks the Court to weigh in on the broader question of when federal law preempts contracts under state law.

Second, courts could conclude that the state common law (the body of law made up of legal principles established by courts over the years) on contracts does not permit contractual restrictions on fair use. This could come in a few different forms. One option might be for courts to consider more seriously the question of whether a valid contract is actually created in the first place, particularly in situations where users have no meaningful opportunity to negotiate terms and little ability to even understand what restrictions they are agreeing to. For years, following the lead of the Seventh Circuit Court of Appeals in ProCD v. Zeidenberg, courts have been willing to accept that a valid agreement is formed even in situations with “shrinkwrap” or “browsewrap” licenses. But, despite ongoing criticism of this approach by many, the approach has prevailed. Courts might also take more seriously the public policy implications of fair use evasion more directly, by invoking traditional rules for contract interpretation that hold terms unenforceable when they violate public policy—e.g., agreements to commit a crime, or a tort, or restraint of trade. To date, however, I’m unaware of any such cases directly applying these principles to contracts that restrict fair use, though there is a large body of case law and this may merit more research.

Third, the courts could apply existing or new equitable doctrines, such as “copyright misuse” or a yet-to-be-defined right of “fair breach” protect users of copyrighted works from overenforcement of contracts that limit fair use. A term first coined by Professor Jane Ginsburg, is for the courts to develop their own remedy—a “fair breach.” She observes that, as with the current licensing environment online, at some point “it becomes necessary to consider whether limitations incorporated in the copyright law should be imported to its contractual substitute. With respect to libraries and their users, one should inquire whether some kind of fair use exception is appropriate. This might take the form of a judge-made right of ‘fair breach,’ or legislatively imposed mandatory library-user rights.”

This idea of “fair breach” has drawn little attention since Ginsburg first identified its need and coined the term, but it merits further attention. “Fair breach” may have some similarity to the existing doctrine of copyright misuse, which could have some application to contracts that restrict fair use. A judge-made doctrine borrowed from the patent law doctrine of patent misuse, copyright misuse has been mostly applied to situations where copyright owners have attempted to exercise their rights to unfairly stifle competition. The primary question with copyright misuse is “whether the copyright is being used in a manner violative of the public policy embodied in the grant of a copyright.” If copyright misuse is found, the copyright isn’t invalidated, but courts have held that the owners’ copyright cannot be enforced to exclude the harmed party’s use. The Supreme Court has yet to acknowledge the existence of this doctrine, but numerous appellate courts have recognized it over the last thirty years.

A handful of cases suggest that extension of copyright misuse to fair-use limiting contracts could be effective. For example, in Assessment Technologies of Wi, LLC v. Wiredata, the Seventh Circuit Court of Appeals held that Assessment Technologies’ attempt to restrict access to data that was not copyrighted fell within the copyright misuse doctrine’s core focus: “preventing copyright holders from leveraging their limited monopoly to allow them control of areas outside the monopoly.”  Video Pipeline, Inc. v Buena Vista Home Entertainment, Inc., also gives some encouragement. Video Pipeline brought a declaratory judgment action seeking a judgment that its use of video trailers from Disney and others was not copyright infringement. Among the defenses it cited was copyright misuse on the part of Disney. To support its copyright misuse argument, Video Pipeline pointed to the license term I mentioned at the beginning of this blog post, which prohibited disparaging Disney or the entertainment industry. The court ultimately declined to find that those terms constituted copyright misuse, because the contract had a narrow focus and limited application: “we nonetheless cannot conclude on this record that the agreements are likely to interfere with creative expression to such a degree that they affect in any significant way the policy interest in increasing the public store of creative activity. The licensing agreements do not, for instance, interfere with the licensee’s opportunity to express such criticism on other web sites or elsewhere.” However, the court suggested that the outcome could have been different if the restrictions were more far-reaching

Conclusion

Contractual override of fair use poses a real threat to free expression, especially given the increasing limits on distribution of copyrighted works online. Almost all online platforms that distribute copyrighted works impose restrictions that inhibit fair use to some degree. It takes just two easy steps. Thankfully, there are some plausible routes forward for improving the law to protect authors and others who rely on fair use to create new works and share knowledge with the world. There is also some reason for optimism due to renewed interest in the issue among scholars and organizations such as the Association of Research Libraries, which issued a report on contractual override for libraries, and is co-hosting a symposium with Washington College of Law at American University on the subject with perspectives from around the world.

Dave Hansen is the Executive Director of Authors Alliance, a non-profit organization that works to advance the interests of authors who want to serve the public good by sharing their creations broadly.  Before leading Author’s Alliance, he was the Associate University Librarian for Research, Collections & Scholarly Communications at Duke University Libraries.

Fair Use Week 2023 (10th Anniversary): Day Two With Guest Expert Brandon Butler

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Avoiding Copyright Literalism and the Fairness of Computer-Generated Works

by Brandon Butler

The last six months or so have seen the seemingly sudden appearance of several startlingly powerful tools that create complex new textual and visual works in response to relatively simple prompts. You probably know at least a couple by name: chatGPT (for text) and Stable Diffusion (for images) are the ones that seem to have taken over my social feeds. These tools are creating a buzz in part because the works they generate are of sufficient quality that they could pass for or replace the work of humans, at least in some contexts. This raises a laundry list of policy questions, some as old as the story of John Henry (will machines put humans out of work?), others as 21st Century as data sovereignty (how can nations govern data pertaining to their citizens when it flows seamlessly around the globe?).

In copyright world – including in some the inevitable raft of lawsuits – the question has been put more narrowly: do these computer tools violate the copyrights of the works that are used to “train” them? Lots of smart people have opined on this already, so I don’t want to go too deeply down this rabbit hole myself. The technical legal answer I favor is straightforward, and the very short version is that there’s no meaningful difference between these tools and the other “non-consumptive”/computational uses that courts have already blessed as fair use many times over. These uses are fair because precedent pretty clearly says they are. Maybe I’m being too glib about the technical legal answer, but in any case, I want to answer a different question.

Why should we embrace this (IMO) fact about the law, that fair use generally protects tools like chatGPT and Stable Diffusion against copyright liability? Even if we have legitimate concerns about the impacts of these technologies, we should recognize these are not copyright concerns and stand by fair use and the robots’ right to read. I think the answer is rooted in copyright’s purpose, and the corresponding limits in its scope.

In a nutshell, my argument is this: The exclusive rights in copyright law are not well-tailored to the law’s public interest purpose. Applied broadly and literally (I’ll call this “copyright literalism”), the exclusive rights in the law threaten to chill uses that benefit the public and that do not result in the kind of unfair competition that copyright was meant to prevent. Fair use exists in part to shield legitimate uses from copyright literalism and contain copyright to its intended domain. The application of copyright’s exclusive rights to computer-generated works is copyright literalism par excellence—it punishes literal copying even though the final result is non-infringing and the putative harm to the copyright holder (the creation of new *non-infringing* works that are cheaper and easier to produce) is not the kind of harm that copyright exists to prevent.

(NB: I realize that in some cases these technologies can be tricked into reproducing their training materials, and of course in these cases the outputs likely are infringing. I’m addressing here the argument that computer-generated works that are the result of a process involving “training” with in-copyright works are per se infringing.)

Copyright is for the public

Article I, Section 8, clause 8 of the US Constitution gives congress the power to create copyrights (and patents). Crucially, the clause specifies the purpose of this power: “to promote the progress of Science and the useful Arts.” Granting copyrights “for limited times” (a term of 14 years at the time that clause was written) is a means to an end, which ideally congress and the courts should bear in mind as they consider how to modify or apply the law.

Congressional action has not always been guided by this principle (witness the extension of copyright term by more than a century despite little evidence of any public benefit, but courts, especially the Supreme Court, acknowledge copyright’s public interest purpose all the time. For example, here’s Justice Kagan in Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979, 1986 (2016):

“[C]opyright law ultimately serves the purpose of enriching the general public through access to creative works.”

And Justice O’Connor in one of my personal favorites, Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340, 349 (1991):

“The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’”

And Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975):

“[P]rivate motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.”

And Fox Film Corp. v. Doyal, 286 U. S. 123, 127 (1932):

“The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.”

The consequences of all this for fair use become clear in a pair of Supreme Court cases that enshrine fair use (alongside the idea/expression dichotomy) as a core, constitutionally-mandated element of the copyright law.

Public Interest Safety Valve(s)

Two cases sought to challenge the unprecedented expansion of copyright’s length and strength at the end of the 20th century. Eldred v. Ashcroft challenged the retroactive addition of 20 years to existing copyright terms, then Golan v. Holder challenged the restoration of copyright for works that had previously entered the public domain. In both cases the challengers argued that the law had intruded impermissibly on the public’s constitutional interests by starving the public domain, but in both cases the Supreme Court declined to second guess congress’s judgment.

To soften these blows to the public’s constitutional interest in copyright, the Court highlighted in Eldred (and reiterated in *Golan*) the presence of two key “First Amendment accommodations” in the law: fair use and the idea/expression dichotomy (the principle that copyright does not protect abstract ideas, only particular creative expressions). These doctrines ensure that even during the term of copyright, the public has some leeway to use copyright-encumbered works.

This is important because the literal scope of the exclusive rights in copyright are breathtakingly broad – reproduction, distribution, adaptation – there is hardly anything you can do with a copyrighted work that doesn’t involve one of these activities, especially in a digital context. And copyright infringement is what’s called a “strict liability” offense—there is no requirement that the alleged infringer have a bad intent in engaging in any of these acts. If not for fair use (and the body of other limitations and exceptions, including the idea/expression dichotomy), copyright would be a breathtakingly powerful private right to control others’ engagement with culture and knowledge.

Google v. Oracle, Copyright, and Competition

One more thread bears surfacing in this conversation: the role of copyright and fair use in fostering competition. The Supreme Court emphasized this role in its most recent fair use opinion, Google v. Oracle. In that case, Justice Breyer describes fair use’s role in the context of software copyrights:

fair use can play an important role in determining the lawful scope of a computer program copyright… It can distinguish between expressive and functional features of computer code where those features are mixed. It can focus on the legitimate need to provide incentives to produce copyrighted material while examining the extent to which yet further protection creates unrelated or illegitimate harms in other markets or to the development of other products. In a word, it can carry out its basic purpose of providing a context-based check that can help to keep a copyright monopoly within its lawful bounds.

As examples of how fair use has played this role in the past, Justice Breyer cited cases like Sony v. Connectix and Sega v. Accolade, cases where software engineers made copies of protected works in a process that resulted in the development of new, non-infringing software. Yes, these cases say, there is literal copying involved in this process, but the end result (and the only thing offered to the public in competition with the works that were copied “behind the curtain”) is something new and non-infringing – exactly the kind of creativity copyright is meant to promote, not discourage. So, fair use acts as a context-based check on the otherwise overly broad literal scope of copyright’s exclusive rights, shielding these intermediate, back-room, pro-competitive copies from liability and enabling the creation of valuable new works.

Similarly, in the Oracle case, Justice Breyer held that Google had created a valuable new work in the Android mobile operating system, and that the use of elements of Oracle’s Java language to enable programmers to interact more easily with Android was fair.

Pulling it all together: computer-generated works and copyright literalism

If you’re with me so far, you’ve seen

1. That copyright is for the public, and it grants rights to authors only as a means to the end of public enrichment
2. That copyright’s exclusive rights are so broad on their face that they increasingly (and, in a digital age, inevitably) apply to uses that don’t harm, and in many cases affirmatively advance, copyright’s public purpose.
3. That fair use is one of the most important safeguards against this outcome, and in particular,
4. That fair use applies where literal copying happens “behind the scenes” as part of a process whose result advances the purpose of copyright, as in reverse engineering, in the search engine cases, and in Oracle.

It shouldn’t be hard to see, then, why copyright law should be positively disposed toward the application of fair use to enable the creation of tools that generate new, non-infringing works. Yes, there is literal copying involved in “training” these computer tools, but the end result is increased production of new creative works, the very public benefit that copyright is meant to encourage. These back end uses should not be cognizable as violations of copyright. The alternative is to turn copyright on its head, discouraging the creation of new works in order to vindicate a private monopoly.

Mandatory chatGPT post-script: I asked the robot “What is the purpose of copyright?” Here is its answer – not bad!

The purpose of copyright is to provide legal protection and exclusive rights to creators and owners of original works of authorship, such as literary, artistic, musical, and other creative works. The aim of copyright is to encourage and reward creativity and innovation by giving creators the exclusive right to control the use and distribution of their works for a limited time.

Copyright gives creators the ability to prevent others from reproducing, distributing, performing, displaying, or creating derivative works based on their original works without their permission. By providing this protection, copyright allows creators to benefit financially from their works and to control the use and distribution of their works.

In addition to providing financial benefits for creators, copyright also helps to promote cultural and educational development by ensuring that creators have the incentive and means to produce new works. Copyright law also helps to ensure that creators receive recognition for their works and that their works are not misrepresented or misused in ways that could harm their reputation or integrity.

Brandon Butler is Director of Information Policy at University of Virginia. There he focuses on intellectual property, copyright, licensing and user privacy as they are related to the acquisition, dissemination and preservation of various forms of information and cultural artifacts, and as they are related to scholarly communication. He serves as an expert consultant to UVA librarians, to groups and individuals within the University, and to national and international efforts focused on relevant questions. He was previously a 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.

Fair Use Week 2023 (10th Anniversary): Day One With Guest Expert Kenneth D. Crews

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I am delighted to kick off the 10th Anniversary of Fair Use Week with a guest post by expert colleague and long-time friend to Fair Use Week, the international copyright authority Kenneth D. Crews. Join him in an exploration of the “many breeds of fair use”  -Kyle K. Courtney

 

The Many Breeds of Fair Use

Kenneth D. Crews

Surely everyone reading this post has grappled with the uncertainty of fair use.  You know the feeling – finding only a blurred landscape when you just want focused details.  It is time to confront the pesky truth we too often avoid fair use is a beast of many breeds.  You cannot see fair use clearly because many disparate versions fill the scene simultaneously.  You might be hoping to spot one confident creature standing firmly on four legs, when fair use is actually a busy menagerie of friendly and wild species.

Deciding fair use cases begins with those sturdy four factors in the statute.  I have had the privilege through more than three decades to work with the factors from various perspectives and as applied to diverse needs and circumstances.  I have counseled authors and publishers in quest of the border between infringement and permission.  I have advised innovators scraping content from the internet.  I have evaluated music clips in video productions.  I have guided parties using copyrighted materials in the heat of a tense election campaign.  I have given green lights and cautionary guidance, and I have needed to gracefully break the news when my evaluation may not be what someone is hoping to hear.  The fair use analysis is never the same, producing a diversity of forms.

Breed #1: The Two Parties

The fundamental variety of fair use reflects the two parties confronting one another: the copyright owner and the user.  Even in cases that seem to be about the similar facts, these leading parties bring their own experiences, values, and priorities.  An advocate of fair use may be building a business or trying to write a better history book.  The critic of fair use may be trying to optimize revenue or seek to protect private documents or retain control of how or when they are used.  Either party may be driven by strong philosophical views on the level of protection and use that copyright law ought to support.  As a result, each analysis and each conclusion can be distinct – even when the facts look like the same beast.

These two leading parties usually absorb most of the attention.  Indeed, the four factors are fundamentally about those two parties.  The user’s purpose is at the center of the first factor, and the user’s decisions and actions shape the third factor.  The copyright owner’s economic interests are the salient feature of the fourth factor, and the author or copyright owner is usually the party that defines the nature of the work in the second factor.  This two-party breed is as diverse as we can imagine the different facts, but this breed is also the version that is most likely to be played out in a court of law.

Breed #2: Community Interest

The two leading parties may well give birth to a flock of fair use offspring, but sometimes it takes a whole barnyard to raise then right.  To speak of just two parties is to overly simplify a complex matter and to miss the potential nuance of the law’s application.  Most important, many fair use decisions have immediate and profound consequences for the wider community, far beyond the interests of just two parties.  This is the “community breed.”

Different works and different situations affect the public in different ways.  When HathiTrust is allowed to build a vast collection of digitized books, the public benefits from the new way of identifying and accessing books.  When an author can use pictures and quotations in a biography, the public benefits from the new publication with the added content that adds depth and character.

Fair use also has its limits, because enable authors to protect their creative work can also foster benefits far beyond the owner and user who are engaged in the fair use debate at hand.  No factor in the statute is explicitly or primarily about the public or anybody else, but courts do take the public interest under consideration as they apply the factors.  Infusing the evaluation with the public interest can change the genetics and the legal outcome.

 

Breed #3: The Good Faith Determination

The law of fair use may center on the for factors, but the U.S. Copyright Act includes a protection for the benefit of educational institutions, libraries, and archives that can eliminate statutory damages – one of the most significant financial infringement risks – if the court determines that the user believed, and had reasonable grounds to believe, that the use was within fair use.  This is yet another breed of fair use because it is an evaluation that gains legal recognition and offers significant protection for the user.  In most any application, the case will be based on the four factors, but the law adds new variables that establish the good faith effort.  This application of the law applies explicitly when the use is not fair, but nevertheless if offers such extensive protection that it may well bring any copyright clash to a quick resolution.

 

Breed #4: The Worthy Risk

Any decision about fair use has some element of risk.  The previous Breed #3 that is based on the user’s belief about fair use is necessarily built on calculation, evaluation, and the vagaries of the user’s subjective state of mind.  This Breed #4 dares to explore opportunities on a distant range with little traditional guidance.  It is exercised when needs and circumstances are innovative and untested by law, or where existing legal precedent offers little relevant support and clarification.  This is the breed of fair use that occurs in the laboratories of creativity, in the debates and decisions of corporate boards, and in the privileged explorations with legal counsel.

This breed may not itself have the force of law, but every court ruling begins with someone choosing to venture into the unknown.  Picture the boardroom years ago as Google executives decided to build a collection of millions of digitized books.  Imagine the lively conversations when rap artists and their production company chose to release a provocative parody of the “Pretty Woman” song, knowing that the copyright owner has already objected.  Consider just the common questions about fair use and online education, where the legal questions remain unresolved, but the need to expand programming is intense.

This breed is no less legally grounded than the others.  The analysis still begins with the best available understanding of the four factors in the statute, and that is exactly where any good fair use decision is based.  But this breed must compensate for the lack of laws with deeper consideration of additional variables.  This fair use determination relies heavily on considering closely and sizing up those two leading parties: the owner and the user.

This breed of fair use complements unknowns in the law with evaluations of needs, risks, and practical circumstances.  Consider the user’s perspective:  Is fair use critical to my project?  Is my planned use extensive or only incidental?  Can my use of the copyrighted content be taken down, removed, or replaced easily if necessary?  Does my use extend into other countries where fair use may not exist?  Think as well about the copyright owner:  Is the owner positioned to bring expensive legal action?  Are the copyrighted works central to the owner’s business and interests?  Is a license available to meet the needs?  Does the owner have a record of aggressive protection?  Are the copyrights registered?  Sometimes these variables will make us cautious; at other times, we may well conclude that the risks are modest and worthy of taking on.

The Roundup

Have no doubt, fair use is essential for the effective operation of the copyright act.  Without fair use and other exceptions, copyright would be an oppressive force, inhibiting the growth of knowledge and the expansion of creativity.  Even with fair use, copyright law is an open range for debating reasonable perspectives and the meaning of the four factors in the fair use statute.  Looking out on that range, we can understand how the many breeds of fair use are not unsettling and confusing.  They are instead an essential way of understanding the role and structure of the law in order to serve widely ranging needs and conditions.  You are not seeing blurred law, but instead you are recognizing the flock of fair use fauna sharing the diverse ecosystem of copyright law.

Kenneth D. Crews is an author and attorney at Gipson Hoffman & Pancione in Los Angeles, specializing in copyright law.  He founded the copyright offices at Indiana University and Columbia University, and he is the author of Copyright Law for Librarians and Educators (4th edition, 2020).

Fair Use Week 2022: Day Five With Guest Expert Sandra Aya Enimil

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Our final day of the 9th Annual Fair Use Week closes with an important post by Sandra Aya Enimil from Yale University, exploring the critical relationship between fair use and equitable access. – Kyle K. Courtney

Equitable Access and Fair Use

by Sandra Aya Enimil

Working in an academic library, brings many opportunities to interact with librarians, faculty, staff, and students working on amazing research and projects that have local, national, and international impact. One of the most important elements of librarianship is making sure that there is equitable access to content for people who want to use our materials for their scholarship, study, and research. In our increasingly digital world, many institutions of higher education preemptively provide web-based materials equitably to all. Some have done so in response to consent decrees.

Consent decrees (under provisions from the Americans with Disabilities Act) compel universities to create policies and procedures, and to dedicate resources to ensure that disabled members of a campus have access that is equitable to that of non-disabled members. Beyond the web, in many instances, general accessibility to library materials is done well and seamlessly. For persons with disabilities, however, it’s often not so seamless. Access is limited to certain content and sometimes has one or more steps before material becomes accessible for their needs. There is a myriad of reasons for this.

In the United States, libraries are bound under copyright law which provides a mechanism for library operations and the ability to loan and make available purchased or acquired content. For example, U.S. copyright law allows libraries, under section 108, to provide digitized copies for research and private study. Under section 121 digitized copies of published literary and musical works for persons with disabilities.

Broadly speaking, U.S. copyright law provides academic institutions with the authority to create accessible copies of in-copyright works.  Academic librarians often partner with other parts of the institution: information technology, student/staff disability offices to provide support for persons with disabilities. While these partnerships are necessary to verify need and to fulfil accessibility requests for the person waiting to receive the material, it is an extra layer of bureaucracy, time, and effort that non-disabled persons do not have to manage. Additionally, section 121 only allows access for specific types of published content. Why does it matter how many steps a student/researcher with disabilities needs to take to eventually get access? It matter because it often means an extra layer of planning and a lack of serendipity in performing research.

How does fair use fit it into this environment? And how does fair use make access more equitable for persons with disabilities? There are compelling arguments that the fair use provision and Section 121 make it possible to create and distribute accessible materials to qualified users, and to retain and share accessible texts in secure repositories for use in serving future qualifying requests. There is also broad discretion to develop systems to support creating and distributing these texts in accordance with the law and their institutional capacity. Individual academic institutions can also create their own systems and workflow to address the needs of eligible persons.  Or academic institutions can rely on systems like HathiTrust to provide this content. Eligible researchers can use Hathi’s search feature to access millions of volumes of works that have been digitized. The researchers do have to register to receive access, but once that happens, they may search the corpus of content freely and hopefully many of those serendipitous research moments happen.

While section 121 is narrow in scope, fair use expands the type of content that may be made accessible. Fair use allows libraries to make audio-visual works, including films accessible to researchers with audio and visual disabilities by adding captions and audio description. Other works excluded from Section 121 include unpublished works, choreography, pictorial, and sculptural works. The ability to create, distribute, and retain accessible versions of these types of content also relies on fair use. Section 107 and 121 permit an essential workflow. This workflow starts with a request from a student or researcher with a disability. It involves an accommodation specific to the needs of the requestor (remediation) and delivery of an accessible version to the researcher. Finally, it ends with deposit of the remediated version in a secure repository for appropriate future use (including future remediation) in the service of other requestors with disabilities.

Someday, these barriers to persons with disabilities won’t exist and there won’t be extra steps needed to receive the same content as non-disabled folks. But we are not there yet. And while fair use alone does not solve all the issues that make equity difficult for researchers with disabilities, it does provide an expanded scholarly universe beyond narrow provisions. And, hopefully, this provides the ability to dive down a research rabbit hole and happen upon just the thing you need.

Sandra Aya Enimil (she/her) is the Copyright Librarian and Contracting Specialist at Yale University Library. At Yale, Sandra is the Chair of the License Review Team and provides consultation on licenses of all types for the Yale Library. Sandra also provides information and resources on using copyrighted materials and assists creators in protecting their own copyright. Sandra collaborates with individuals and departments within the Yale Library and across campus. Sandra is committed to diversity, equity, and inclusion (DEI) and is interested in the intersection of DEI and intellectual property. 

This blog is cross posted on the Conversations on Copyright at Yale Library Blog: https://campuspress.yale.edu/copyrightconversations/

Fair Use Week 2022: Day Four With Guest Expert Dave Hansen

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I am excited to welcome Dave Hansen to our Fair Use Week blog post series, as he examines and celebrates the functional and mundane aspects of fair use! – Kyle K. Courtney

Fair Use is Boring

by Dave Hansen

“We live in interesting times” is a statement I’d prefer to not hear again. Over the last couple of years we have faced protests, insurrections, pandemic, fires, wars and so on. And in addition to those real life problems, the law has struggled to adapt. Rules that were once thought reasonable no longer made sense. We needed flexibility that hasn’t always been there. However, one bright spot has been how copyright law has for the most part navigated these emergencies successfully, largely due to the power of fair use. 

Described as an “equitable rule of reason,”  fair use aims to  “avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Fair use, for example, is the reason teachers and librarians have felt empowered to continue helping their students learn by reading aloud to them (gasp!) online, even though strictly speaking such uses may, strictly speaking, be considered an exercise of the copyright owner’s public performance rights. It has also helped make other uses supporting teaching, learning possible, by allowing instructors to share excerpts of books, or clips of movies, with students through class websites. Those kinds of uses illustrate the elegance and speed with which fair use allows us to adapt to emergencies to keep teaching and learning, and ultimately creativity, moving forward.

Of course,  sometimes that “equitable rule of reason” means that we can have disagreements about what qualifies as fair use, especially in new circumstances. This is true with cases like with the National Emergency Library and the copyright lawsuit that it perpetuated. That lawsuit challenges whether and how libraries, like Internet Archive, can provide digital access to digitized books in times when physical analogs can’t be accessed. Reasonable minds can differ about what circumstances make that permissible, hence the lawsuit.  But even then, fair use helps us, by giving enough legal flexibility in the system to invite organizations like Internet Archive that are willing to take a risk and make the argument, and then allowing for a reasoned resolution of the issue by the courts. That’s a feature, not a bug. Without it we may foreclose all sorts of new ways of promoting learning and progress for fear of an otherwise stifling, stiff copyright system. 

But, I’m tired of emergencies. So I want to close out Fair Use Week by asking you to celebrate with me how fair use can be pretty boring, too.  Although we sometimes talk about fair use as an “exception,” in reality it’s’ not some special aberration from the norm; fair use is baked into the balance of the Copyright Act, as it is in all sorts of everyday activity. These uncelebrated, boring aspects of fair use are an important part of what makes it so powerful. “Equitable rules of reason” only really work when they match what most of us view as actually being reasonable. We use it all the time:*

  • Copy a photo for a class assignment? Fair use. 
  • Back up your mp3 collection? Fair use.
  • Record a game on TV, to watch later? Fair use. 
  • Quote an original source in your class term paper? Fair use.
  • Send a text to your mom with a funny picture from the internet? Fair use.
  • Create a meme! And share it with your boss? Fair use.
  • Forward that crazy email thread from your neighborhood listserv to the local news? Yup, fair use.  

Ok, so I might be getting suspiciously specific here, but you get the point. There are all sorts of ordinary interactions we have every day with copyrighted works, and for a large number of them, we’ve somehow navigated through the strictures of copyright law in ways that have allowed us to continue to learn, explore and even laugh, without winding up in court. Fair use is an important part of how we get there. For most of us (not me) who don’t obsess over fair use, we don’t even know we’re using it. 

So, for those of you who are tired of doom-scrolling and reacting to the emergency of the week, take a breath. Look around. And geek out about how cool this little corner of our copyright system is, to make so many aspects of modern life more reasonable, and even a little bit boring. 

* Yup, there are other good legal rationales to support some of these uses. My point isn’t that fair use is our only hope for allowing ordinary, reasonable behavior. But it sure does help.

David Hansen is the Associate University Librarian for Research, Collections & Scholarly Communications at Duke University Libraries. Before coming to Duke he was a Clinical Assistant Professor and Faculty Research Librarian at UNC School of Law. And before that, he was a fellow at UC Berkeley Law in its Digital Library Copyright Project.

Fair Use Week 2022: Day Two With Guest Expert Brandon Butler

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Day two of Fair Use Week kicks off with a critical update on a case involving software, access, and fair use. UVA’s Brandon Butler reviews the arguments, and his amicus brief, for Apple Inc. v. Corellium, now at the 11th Circuit Court of Appeals.  – Kyle K. Courtney

 

Fair Use, Unforeseen Consequences, and the Apple v. Corellium case

by Brandon Butler

Fair Use Week is a good time to celebrate one of fair use’s most important applications: addressing unforeseen copyright barriers to important cultural activity. The importance of this kind of fair use is vividly on display in a case currently in the 11th Circuit Court of Appeals: Apple v. Corellium (Docket No. 21-12835). A key issue in the case is whether Apple’s copyright in its iOS mobile operating system software can allow it to control a new use that neither Congress nor Apple foresaw: Running the software outside of an Apple device in order to more effectively study how it works.

Corellium’s technology enables security researchers to examine how iOS works, and potentially to detect flaws and weaknesses in the system, by viewing the software in an emulated hardware environment. Apple previously tried to acquire Corellium, but when the deal fell apart, Apple accused the company of copyright infringement. Apple argued that Correllium actions – hosting copies of the iOS and making them accessible to researchers – was violating Apple’s copyright. Corellium argued its use is fair, and the trial court agreed. (I summarized that opinion in these very pages in “Apple v. Corellium: Some Early Takeaways for Software Fair Use,“ as part of Fair Use Week last year.) Apple appealed that decision to the 11th Circuit Court of Appeals in Atlanta.

Last week I filed an amicus brief in support of Corellium, on behalf of the Software Preservation Network, Library Futures Institute, the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries. (ALA, ARL, and ACRL work together on copyright issues as the Library Copyright Alliance). Last year I explained the basic issues, and the upsides of the trial court’s opinion in favor of Corellium. This year I want to take a step back and talk about how we got here and why fair use plays such an important role in the future of software preservation specifically and digital preservation generally.

As computer programs grew in cultural and economic significance during the second half of the 20th Century, policymakers grappled with whether to apply copyright to these new creations. Advocates for inclusion argued that computer programs suffered from the same basic market failure issue as traditional copyright-eligible works: they are expensive to develop but easy to copy, potentially undermining the incentive to create new works. Skeptics of copyright for software (including a young law professor named Stephen Breyer) pointed out that there are many ways to address this economic problem, and that software differs from traditional copyright subject matter in important ways.

Chief among these differences: software has an essentially “utilitarian” character. Indeed, software is a machine made of text (to use the colorful metaphor favored by critics like professors Pam Samuelson and Dennis Karjala), and 99.99% of software users never read the code that comprises the protected “literary work” for copyright purposes. What matters about software is what it does, and copyright is not designed to protect that kind of value. Congress should not apply a legal system designed for expression to a new kind of creation whose main value is behavior. Or so the critics said.

The critics lost, however, and software was fully integrated into copyright law shortly after the passage of the Copyright Act of 1976. (One reason congress’s thinking was out of sync with many experts might be that the expert panel convened to advise congress on this issue did not include a single person with more than a layperson’s knowledge of software or computers. The panel’s final report confuses issues as fundamental and consequential as the difference between source code and object code. For a detailed critique of the CONTU group and its report, see Samuelson’s seminal piece, “CONTU Revisited: The Case against Copyright Protection for Computer Programs in Machine-Readable Form,” Duke Law Journal, vol. 1984, no. 4, Duke University School of Law (1984)).

Among the many consequences of software copyright, unforeseen by its champions, is its potential chilling effect on access to other digital works. Indeed, not even the critics at the time foresaw the problem we raise in our amicus brief – that copyright-encumbered software works are necessary tools for accessing digital files. And if these tools cannot be preserved, accessed, and used without the rights holder permission, the copyright monopolies in software will have grown to include control over authentic rendering of every work that is written or read with that software. For core software works like iOS, that power would reach millions of digital works (everything created for or with an Apple touchscreen device, from notes to fine art), all inaccessible without lawful access to (the right version of) iOS.

The SPN amicus brief lays out for the Court the extremely high stakes for getting the balance right in cases like this. The software-dependent nature of all digital files means preservation and access to software is a foundational issue for cultural heritage institutions in the 21st century. Unfettered copyright would give software copyright holders unfettered power to shape access to history (and to art, and to science, and to anything created or stored digitally, which is almost everything, now).

If this outcome—a digital history held hostage by software companies for 120 years after the creation of each new version of their app—sounds absurd, it’s because it is. It certainly does not “promote the progress of Science and the useful Arts,” as the Constitution supposes all copyright should do. And it certainly is not a situation any legislator intended or foresaw when they decided to add software to the Copyright Act’s list of protected works (or, rather, to redefine “literary work” to include software code). This is where fair use comes in to save the day.

Fair use is an open-ended right: the statute defines fair use with a list of examples prefaced by “such as,” leaving the courts discretion to identify new contexts where fair use can apply. So, even though no one in 1976, or 1980, expected there would be any need for an exception to copyright to enable access and preservation of digital works with software dependencies, the law is capable of providing that exception by means of fair use. Software preservation professionals have already begun to rely on fair use and to declare their consensus views about its application through the Code of Best Practices in Fair Use for Software Preservation. Without fair use and tools like the Code, cultural heritage institutions would be in serious trouble as they struggle to develop strategies for preserving our collective digital culture and history. With fair use, copyright law has within it the power to adjust and flex to avoid absurd results, including the one sought by Apple in its suit against Corellium.

Brandon Butler is Director of Information Policy at University of Virginia.  There he focuses on intellectual property, copyright, licensing and user privacy as they are related to the acquisition, dissemination and preservation of various forms of information and cultural artifacts, and as they are related to scholarly communication. He serves as an expert consultant to UVA librarians, to groups and individuals within the University, and to national and international efforts focused on relevant questions. He was previously a 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.

Fair Use Week 2022: Day One With Guest Expert Kenneth D. Crews

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We are delighted to kick off the 9th Annual Fair Use Week with a guest post by the international copyright expert, Kenneth D. Crews, as he predicts the role of fair use in the U.S. Copyright Office’s new small claims court. -Kyle K. Courtney

Fair Use and Small Claims: Getting Ready for the Big Deal

by Kenneth D. Crews

An irony of fair use is that it can be patiently supportive and thoroughly demanding at the same time. It can nurture the individual spirit, and simultaneously require complex litigation strategies. In our daily pursuits, we might be comfortable clipping, pasting, mixing, adapting, and generally engaging with fair use in an enlivened quest for creativity. On the other hand, if ever we had to convince a judge of our legal position, we would become immersed in extensive research and analytical arguments.

That ambivalence of fair use may soon reveal itself with the opening of the new “small-claims court” for copyright infringements.  I and others have written generally about this new quasi-judicial Copyright Claims Board, soon to commence operations within the U.S. Copyright Office. The new Board was established with the passage of the CASE Act, enacted by Congress in late 2020 as part of an appropriations bill. It creates a distinct process for bringing and resolving “small” copyright infringement actions that may come before this new Board and the three Copyright Claims Officers who will rule in proceedings. The Officers can hear allegations of infringement, and they can act on defenses, including fair use.

The Board has authority to award damages, generally capped at $30,000 per proceeding, and the expectation is that the Board will make determinations in common matters where the total dollars at risk are not exorbitant.  The Board may hear cases about scanned and uploaded pages, or movie clips posted to personal websites and on YouTube.  Depending on the exact facts of each claimed infringement, these familiar pursuits could form an ideal context for confrontations over fair use.

Some battles will not actually occur.  A crucial element of the Case Act, intended to buffer it from constitutional challenge, is the broad authority of respondents who are hit with claims to opt out of the system, leaving the original copyright owners with the choice to file the case in the conventional federal courts – exactly the burdensome and expensive option the claimant hoped to avoid.  Opting out will likely be common.  But some cases will nonetheless proceed, bringing fair use to the fore.

Jump ahead several years: The determinations of the Copyright Claims Board are required to be publicly reported.  We might get only brief conclusions. With luck, we might see a dense public record of allegations and evidence, documents and arguments, and the Board’s explanations and rationale. However, the new law states unequivocally that the rulings are not to have any precedential value. That stipulation will do nothing to stop analyses of the Board’s track record and the use of trends and analytics in strategic planning by future parties. Whether we like it or not, in the years ahead, we will be exploring and exploiting the direction that the Copyright Claims Board has taken on the meaning and application of fair use.

The proceedings before the Board may indeed be efficient and individualistic. But the arguments and findings about fair use could easily be as demanding and complex as those found in the court system. Yet the realistic ability to make a sophisticated and persuasive legal argument may be out of balance. The claimant bringing the action could be a large entity with ample legal support, while the respondent may often be that modest user who is experimenting with remixes and fan fiction.

These heady questions about fair use will form the Board’s track record that we will analyze in the years ahead.  The trends and patterns in the Board’s rulings on fair use in the coming years will undoubtedly reveal much about the Board’s proclivities on fair use and offer guidance for future litigants before the Copyright Claims Board. In other words, early proceedings that involve fair use need to move forward with great care. The law tells us that the decisions are not precedential, but they are foundational.  Even in the informal setting of the Board, fair use must not be handled flippantly.

I am not an advocate for test cases. But I do advocate for the power and influence of a strong legal analysis.  The fair use issues coming before the Board must be thoroughly researched and persuasively argued.  Parties need to consider carefully whether their case has the legal bolster it deserves.  If not, opting out may be the right choice.  Parties are allowed to have legal representation, and law students are also permitted to appear before the Board.  Law firms and law school clinics may need to add the Copyright Claims Board to their scope of service.  We are at the start of something new, and fair use needs to be nurtured and protected from the first day that the Copyright Claims Board opens its doors later this year.

Kenneth D. Crews is an attorney and copyright consultant with Gipson Hoffman & Pancione in Los Angeles, and he was previously a faculty member and copyright policy officer at Indiana and Columbia Universities.  He is the author numerous publications on fair use, including Copyright Law for Librarians and Educators (4th ed.), published by ALA Editions.

Fair Dealing Week Makes a Home Coming

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I am very excited to host our colleagues (and friends), Jane Secker and Chris Morrison, in their first blog post on this platform for Fair Use/Fair Dealing Week. Join Jane and Chris as they explore their roles in the UK copyright space, the differences and similarities between fair use and fair dealing, and reveal the plans for their first full week of fair dealing events happening in the UK! – Kyle K. Courtney

Fair Dealing Week Makes a Home Coming

Photo caption: Jane and Chris in their Periodic Table of UK Copyright Exceptions t-shirts

It’s incredibly exciting that for the first time, the UK is going to be participating in Fair Use Week, or in our case, Fair Dealing Week. As two committed copyright enthusiasts we wanted to tell you about why we decided to get UK universities, libraries, and cultural institutions involved in the event. We also wanted to explain a bit about what fair dealing is, how it relates to fair use, and also why being late to the party isn’t so bad (in fact it provides an opportunity to explore a bit of copyright history). Finally, we have a few exciting free online events happening this week and we’d love to see some of you at these events.

Who are we, and what is our copyright story?

We are Jane Secker and Chris Morrison, two self-confessed copyright geeks who co-founded the website copyrightliteracy.org. We use this to help promote understanding of copyright and host our openly licensed copyright resources and games.

Jane is a Senior Lecturer in Educational Development at City, University of London. She teaches modules on digital education as part of a Masters in Academic Practice. Prior to this she was the Copyright and Digital Literacy Advisor at LSE for over 15 years. Jane is Chair of the CILIP Information Literacy Group, that runs the LILAC conference and a member of various copyright committees in the UK including the Copyright Advisory Panel which is a governance group of the UK’s Intellectual Property Office, and the Libraries and Archives Copyright Alliance.

Chris is currently the Copyright, Licensing and Policy Manager at the University of Kent, responsible for copyright policy, licensing, training and advice. However, he is also to take up a new role starting in April 2022 as Copyright and Licensing Specialist at the Bodleian Libraries, University of Oxford. Chris was previously the Copyright Assurance Manager at the British Library and before that worked for music collecting society PRS for Music. Chris holds a masters in copyright law at King’s College London and his dissertation explored the understanding and interpretation of Section 32 of the Copyright, Designs and Patents Act ‘Illustration for Instruction’ by UK universities.

We first met in 2014, shortly after copyright law had been reformed in the UK and came together to run a series of training sessions for librarians on the updates to the law. We collaborated to create Copyright the Card Game (an openly licensed educational game to teach people about copyright that has been adapted for use in the US, Canada, New Zealand and Australia) and in 2016 our book Copyright and E-learning a guide for practitioners was published. We take a playful approach to copyright education, we a range of copyright t-shirts and even have a podcast called Copyright Waffle, where you can hear us chat to various guests about their copyright story.

Our work has really accelerated since 2020. We have been running a regular webinar series on the topic of copyright and online learning since March 2020, and in November 2020 we co-founded the Association for Learning Technology’s Copyright and Online Learning (CoOL) Special Interest Group. This reflects the growth in interest in copyright in the education sector since the pandemic. It was under the auspices of this group that we got involved with Fair Dealing Week. Kyle K Courtney is the CoOL SIG’s international representative, and we’ve been hugely inspired by Kyle’s work on the Copyright First Responders programme and his championing of copyright exceptions through the continued creation, promotion, and expansion of Fair Use Week. In the last few years we’ve focused a lot of our efforts into helping the education community in the UK understand how copyright exceptions work and their relationship to licenses. This involves grappling with the concept of fair dealing and balancing the risk of using works under fair dealing exceptions against the risk of failing our students by not providing them with educational resources or opportunities to learn by creating work based on the work of others.

Fair Dealing and the origins of Fair Use

When we talk to people about copyright, they usually refer to the more widely known term fair use, rather than the slightly confusingly worded term ‘fair dealing.’ This prompts us to talk about the differences between the two.

Fair use (as I am sure readers of this blog will know) is a legal doctrine in the US Copyright Act, which allows use of copyright material without the permission of the copyright owner, according to a ‘four factor’ test. It’s traditionally considered to be a more flexible and broader doctrine than the delimited UK concept of fair dealing. However, we will see they come from the same origins and do serve a very similar purpose, of providing balance in copyright laws by limiting the otherwise expansive exclusive rights conferred on rights holders.

The common origin of both fair and use and fair dealing comes from English court cases of the 18th century which considered the extent to which abridgements of literary works were fair. These ‘fair abridgement’ cases are described by Professor Ronan Deazley with his customary verve and flair in the article ‘The Statute of Anne and the Great Abridgement Swindle’.[i] The relevance of them to the US doctrine is also described in Matthew Sag’s seminal article ‘The Pre-History of Fair Use’.[ii] This common history between fair use and fair dealing is reflected in the fact that Commonwealth (i.e. ex-British colonial) countries such as Australia, Canada, New Zealand and India also have fair dealing provisions.

However, despite their common ancestry there are some key differences. Unlike fair use, fair dealing is not defined in the UK statute – this means that its meaning comes almost entirely from a reading of the case law. In addition to this UK fair dealing is not described as a ‘user right’ in the same way that fair use is in the US, or in the way that fair dealing is under Canadian law. Another difference is that the concept of ‘transformative use’ as defined by Justice Leval[iii] has not been adopted by the British courts when looking at fair dealing, in the same way as has been done in the US. And finally a key difference is that UK fair dealing provisions can only be applied to four specific types of activity – quotation (including criticism and review and news reporting), non-commercial research and private study, illustration for instruction (i.e. teaching) and caricature, parody and pastiche.

But even with these differences, fair use and fair dealing share the same aim in determining how a ‘fair and honest minded person’ would deal with a copyright work if they didn’t have permission. When we play copyright the card game, we ask people to consider the following questions associated with fair dealing:

  • Does using the work affect the market for the original work? Does it affect or substitute the normal exploitation of the work?
  • Is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount?

Those familiar with the four factors of fair use will find these questions looking very familiar. And in fact Professors Tanya Aplin and Lionel Bently have recently argued that the Berne Convention creates a ‘Global Mandatory Fair Use’ requirement that requires all jurisdictions to adopt fair use or an equivalent broadly framed fair practice exception.

Whilst we find the latest cutting edge scholarship fascinating from our perspective of being copyright geeks, we are also aware that as educators we need to frame these issues in ways that communities are able to engage with. We have noticed that teachers and lecturers often feel uncertain about how copyright works, leading some to avoid using specific content for teaching and others to believe that anything goes. We also note that they often want to be given a simple and clear answer on whether their proposed activity is lawful – something which rights holders often refer to as the benefit of providing content under license.

We believe it’s important that we do make use of the flexibility provided by copyright exceptions as a vital supplement to licenses. Obtaining permission or a license for a work is not always practical, for example of when a lecturer uses an image in a slide to illustrate a point in their teaching, or shows a clip of a video, or may need to quote some text. We tend to advise those wishing to rely on a copyright exception to weigh this up by looking at whether licenses are available, whether getting permission is feasible and how much of an appetite they, or their organisation have for risk.

We are therefore absolutely delighted to be fusing all of these different aspects of fair dealing together in a fantastic programme of events. We will be hearing from leading UK scholars, researchers, teachers, film makers and a host of others across multiple cultural and creative organisations.

UK Fair Dealing Week Overview

Photo Caption: Jane and Chris chat to Kyle Courtney about participating in Fair Dealing Week

Working with colleagues in the ALT Copyright and Online Learning Special Interest Group (CoOLSIG), we have a series of events happening this week that both celebrate and provide information about the UK’s fair dealing exceptions. We hope to see some of you at one or more of these free online events, and may fair use / fair dealing be with you at all times:

Monday 21st February

  • The online launch event is being hosted by Chris Morrison and Dr. Jane Secker. It is also featuring Kyle K Courtney and Dr Emily Hudson at the Institute of Advanced Legal Studies (IALS), 6-7.30pm (GMT) on Zoom. The launch event will present the basic principles of Fair Dealing in the UK and focus on best practice, along with directing attendees to shared resources, including new guidance from the IALS.  Book here.

Wednesday 23rd February

Thursday 24th February

  • SCURL Copyright and Other Legal group, Fair Dealing Coffee Morning. The Challenge of Using Copyright Exceptions for Global Online Teaching with Debbie McDonnell, British Council. 10-11am (GMT). This informal online event will be kick started with a presentation from Debbie, where the challenges around using the Fair Dealing exceptions outside the UK will be explored, along with assessing the associated risk, and best practice. This will be followed up with Q&A and discussion session.  More details and booking.
  • Bloomsbury Learning Exchange (BLE) Fair Dealing Panel Discussion. Primarily aimed at BLE members, join librarians and learning technologists to discuss what fair dealing means in practice. Held online. 30-4pm (GMT). Please contact s.sherman@ble.ac.uk to book a place.

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[i] Ronan Deazley, The Statute of Anne and the Great Abridgement Swindle, 47 Hous. L. Rev. (2010). Available at: https://houstonlawreview.org/article/4174-the-statute-of-anne-and-the-great-abridgement-swindle

[ii] Sag, Matthew, The Pre-History of Fair Use, 76 BROOK. LAW REV. 1371 (2011). Available at: https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1157&context=facpubs

[iii] Pierre N. Leval, Toward a Fair Use Standard, Harvard Law Review Vol. 103, No. 5 (Mar., 1990), pp. 1105-1136 (32 pages) Published By: The Harvard Law Review Association https://doi.org/10.2307/1341457 https://www.jstor.org/stable/1341457

Fair Use Week 2021: Day Five With Guest Experts Meredith Jacob and Will Cross

best practices, copyright, fair use , , , ,

For our final post of the 8th Annual Fair Use Week, we are very excited to have two of the authors of the recently launched Code of Best Practices in Fair Use for Open Educational Resources, share their insights on the process and development of this incredible publication. Enjoy! – Kyle K. Courtney 

Creation is Not a Closed Book Exam: Developing the Best Practices in Fair Use for Open Educational Resources 

by Will Cross and Meredith Jacob

You can learn a lot from which questions people ask you, and which they don’t. As educators and advocates for building openly-licensed textbooks and other open educational resources (OER), we spend a lot of our time at conferences and workshops talking about how to understand and use Creative Commons licenses. As we’ve done presentations over the past few years, however, we noticed that attendees generally listened politely to our presentation and then spent the entire question and discussion period asking pointed questions about how fair use fits in.

As fair use advocates, we love these questions – what’s more fun than digging into a juicy fair use discussion! But bringing discussions about fair use into the open education community raised a second set of questions from creators and especially gatekeepers, and we needed to give people a way forward that went beyond a quick conference Q&A but still didn’t promise individualized legal advice. Some open educators felt unprepared to analyze fair use in particular contexts. Many felt apprehensive about fair use as a whole, often based on anxieties grounded in copyright folklore left over from the era of Napster and LimeWire. Strikingly, many institutional gatekeepers felt unable to make broad, uniform decisions about whether and how to acknowledge fair use at all. While they recognized that some authors were in fact relying on fair use sub rosa, without any tool for systematically understanding and applying fair use they felt that their options were either “allow anything” or “(pretend to) allow nothing.”

Of course, the reality is that every textbook relies to some extent on fair use. It would be practically impossible to build a textbook – certainly a good textbook – without quoting anyone, critiquing anything, or illustrating ideas with text, images, music, or other materials from the real world. Creating anything, including OER, is not a closed book exam. Good pedagogy explicitly builds on the work that has come before and great pedagogy connects to the real world and the lived experiences of the learners it is meant to engage.

Our job, then, was to understand what type of guidance the community needed in order to find a happy medium between “no fair use allowed” and “anything goes.” Fortunately, we had a great tool for exactly this type of work: the Codes of Best Practice in Fair Use. For two decades, the Codes of Best Practice have proved to be an effective tool for many communities to document the repeated professional situations in which they can and must rely on fair use. The Codes are built on a framework that aligns fair use decision making with both the professional mission of the creators and the predictable legal principles of fair use law. These Codes have worked for such disparate communities as documentary filmmakers, librarians, poets, and dance archivists, just to name a few.  

As when creating past Codes, we began with a series of interviews with stakeholders across the community. These interviews helped us understand where questions about fair use were creating friction for OER creators, where authors were regularly relying on fair use, what parallel concerns such as accessibility and equity demanded attention, and finally where OER creators were getting information, advice, or even hard rules about the copyright decisions they were making. By early 2020 we felt ready to begin the focus groups that are the signature work of creating Best Practice documents. We felt inspired, connected, and ready to go. Nothing could stop us now . . .

Obviously 2020 didn’t go the way anyone expected, and we paused the process to support educators making the rapid move to fully online instruction with a series of webinars on building resilient materials for teaching and learning. This series also began with a question: “can I read aloud to my students in an online classroom?” The answer, of course, is “reading is most definitely allowed!”

Significantly, what we thought would be a brief detour turned out to be a critical reminder for all of our work, especially the Best Practices: “it’s always an emergency for someone.” While the pandemic brought into focus acute questions about rapid shifts in pedagogy and making do with substandard wifi, for many learners those challenges are chronic and exist beside and in the context of systematic injustice, inaccessible design, and deep digital divides. Relying on fair use as a tool to enable access seemed urgently necessary in that moment of crisis. But those needs are no less urgent and fair use is no less essential for students who face perennial challenges based on inequity and inaccessibility. 

As we returned to developing the Code, this core principle continued to animate our work and to resonate deeply in focus group discussions, particularly when we discussed the inadequacy of linking out rather than relying on fair use to reliably incorporate materials. By the late fall we had completed eighteen focus groups and were pleased that our outstanding team of legal reviewers enthusiastically supported the document we facilitated in partnership with the open education community. 

As we celebrate Fair Use Week 2021 we’re excited to share the Code of Best Practices in Fair Use for Open Educational Resources. As with all of the Codes, this resource describes an approach to reasoning about the application of fair use to issues both familiar and emergent but does not provide rules of thumb, bright-line rules, or other decision-making shortcuts. Using the Code to develop OER is also not a closed book exam. Instead, it is designed to empower you to bring together a team of educators, librarians, publishing experts, and others to develop resilient, inclusive OER that engages with and reflects the work that has come before and the world that learners are preparing to enter.

You can learn more about what the Code says, how it works, and how it fits into a global body of educational exceptions in this recorded webinar. We’re also developing a series of community-specific events for open educators, librarians, and legal gatekeepers such as offices of general counsel over the coming weeks. We invite you to work with us to develop guidance and models for applying the Code in specific disciplines and communities through workshops and project development. We’re just getting started with the really fun stuff and we know your questions and real world examples will help make this resource even more meaningful and exciting.

 

Meredith Jacob serves as the Assistant Director for Academic Programs at the Program on Information Justice and Intellectual Property (PIJIP) at American University Washington College of Law. Her work includes student outreach and advising, curriculum coordination, and academic research and advocacy. Currently her work also includes research and advocacy focused on open access to federally funded research, flexible limitations and exceptions to copyright, and public interest in international intellectual property. Previously, Meredith worked with state legislators on a variety of intellectual property and regulatory issues affecting pharmaceuticals and the privacy of prescription records.

Will Cross is the Director of the Copyright & Digital Scholarship Center in the NC State University Libraries, an instructor in the UNC SILS, and an OER Research Fellow. Trained as a lawyer and librarian, he guides policy, speaks, and writes on open culture and navigating legal uncertainty. As a course designer and presenter for ACRL, SPARC, and the Open Textbook Network, Will has developed training materials and run workshops across the US and for international audiences from Ontario to Abu Dhabi. Will’s current research focuses on the relationship between copyright and open education. In addition to this project he serves as co-PI and co-developer of the IMLS-funded Library Copyright Institute