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:*
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.
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.
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.
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.
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
The University of Kent will celebrate its strong tradition of creative reuse, by demonstrating how research, education and engagement at Kent are all underpinned by a copyright literacy strategy and associated policy which encourage Kent staff and students to make informed use of legal provisions. This online event will take place from 5:00pm – 6:30pm (BST), and is chaired by Chris Morrison, with Dr Richard Misek, Dr Ben Marsh,Dr Alexandra Covaci and Dr Jane Secker. Find out more and book here.
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.
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 . . .
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
Day three of Fair Use Week starts with copyright and fair use expert Sandra Aya Enimil of Yale University looking at the critical role fair use plays in the history of hip hop and sampling. – Kyle K. Courtney
A Sample of Fair Use
by Sandra Aya Enimil
Music sampling has been, and is, a critical fixture and feature of hip-hop. Hip-hop is an amalgamation of music, music mixing, dance, graphic art, and a specific clothing aesthetic. Lovers of hip-hop music and copyright have followed and studied the impact of copyright law on the genre, particularly how hip-hop musical artists (MCs) have engaged fair use.
Image by Benjamin Wiens from Pixabay
The Mixtape
Fair use, as stated in U.S. Copyright Law, 17 U.S.C. Section 107, is not an infringement of copyright, even if the use utilizes any of the exclusive rights of the copyright holder (as outlined in Section 106 of U.S. Copyright Law). Fair use requires a four-part analysis: purpose of the use, nature of the work, amount used, and potential market harm. Section 107 mentions potential uses including: criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, and research purposes.
Fair use is not limited to the specific listed categories. What is or is not definitively fair use, is decided by the courts. However, with notable exceptions, only a handful of cases around hip-hop music have been litigated and reached a fair use determination[i] (most disputes end before litigation commences or settle while winding through the courts). The most famous hip-hop case to reach the Supreme Court is Campbell v. Acuff-Rose Music, Inc., this case introduced “transformativeness” as a consideration in the first fair use factor: purpose. Miami-based hip-hop group 2 Live Crew sought a license to sample Roy Orbison’s Oh, Pretty Woman. The license was denied, but 2 Live Crew used the sample anyway, and the rights holders for the original song sued. The case made its way to the U.S. Supreme Court which determined that the use was a parody that transformed the original, the amount used was necessary for the purpose of satire, and that the musical works had two different audiences, limiting the market harm.
Most certainly two different audiences
In creative fields, artists borrow from and are inspired by each other as a regular part of the artistic process. If you are familiar with hip-hop music, you know that one of the foundational elements of the genre, which began in the 1970s, is sampling music from other genres, contemporary, and older music. Sampling of older music is often meant to allow listeners to reminisce, conjure historical references, or sometimes to satirize the music of older generations. Hip-hop began with extremely talented young people from marginalized, African-American, and Latino communities who could not afford to license music used in their unique creations. These MCs often used other music as backing tracks, background music to showcase their rapping skills. Mixtapes (actual tapes, remember those?) were created and distributed and used to fuel the culture. This creative and innovative musical form was the underlying beat for MC battles, breakdancing, and hip-hop nightclubs.
Funky Stuff by antony_mayfield is licensed under CC BY 2.0 license.
Some hip-hop artists, working with DJs and producers, would cobble different elements of multiple songs[i] to create the music underneath their rhymes and rhythms. The mixes and samples were innovative and the rhymes clever. This work helped build the genre through the 70s and well into the 90s (though rapping and hip-hop still exists, most would consider the mid-80s to around the mid-90s the golden age of this genre). Theoretically, many of these MCs should have been able to rely on fair use. Fair use is case specific, so it is difficult to generalize, but:
Purpose: The use of the music was to provide backing tracks to rap, poems, and lyrics. Some uses were satirical. Some music was made available for free, but there were certainly commercial benefits.
Nature: The underlying music was typically highly creative, published works.
Amount: Depending on the artist, as little as one second from multiple songs or an entire song could be used to fulfil the purpose
Market: In most instances, as the court found in Campbell, the audiences for the new work and the original were not the same.
During the early years of hip-hop, the music moved from underground clubs and parties to the radio. As hip-hop music matured, more attention began to be paid to the third-party music samples included in the songs. The original music artists and record labels saw the lucrative nature of hip-hop in the resurgence of interest in their music. Increased interest was not enough though; the original artists and their labels sought compensation for the use of their music.
As time passed and the genre grew, artists could afford to pay for and make original music but sampling remained a part of the culture. The record labels representing hip-hop artists started requiring any samples be cleared before an album could be released to lower the risk of an infringement lawsuit against the record label. As a result, some artists resorted to releasing two versions, one commercial and one as a “bootleg” containing samples that could not be cleared. Other artists opted to release only music with original music or cleared samples.[ii] Approaches to clearing music rights differed among hip-hop pioneers. Some consistently cleared rights,[iii] some felt their use was transformative, and still others fell somewhere in between clearing some music and continuing to explore using music that had not been (or could not be) cleared or clearing rights after production.
The Remix
There is no dispute that copyright law impacted how hip-hop evolved as a musical genre. Litigation and threats of litigation stopped artists from sampling music that would have created transformative music.[iv] As hip-hop continued in the 90s, the desire to find songs that cleverly backed up the artist was still an important element of the culture. The commercial success of hip-hop made way for artists, producers, and DJs that had become successful enough to buy licenses to use samples. It eventually became part of the bravado of the time to brag about spending large sums of money to license music for sampling and remixing hip-hop music. The bragging was meant to show how powerful and prosperous some artists had become. But not all artists could afford to pay what, at times, could be exorbitant prices to include even relatively short samples of music. Sampling still occurs, but for represented artists, clearing the music is the only way to release music risk-free. In the digital age, some artists release uncleared music for free on a variety of websites, allowing innovation in music to remain.
Mashup v. Sampling
As hip-hop artists shied away from commercially releasing music with uncleared samples, the “mashup” developed. Mashups involve combining at least two songs into new music. Vocal tracks may also be overlaid over the works. While mainly hip-hop artists could not get away with unauthorized sampling, mash-up producers, DJs[v], and artists do not seem to have the same troubles. Dr. Mel Stanfill, during the 2019 Race + IP Conference, pondered the different reactions to sampling versus mashups. Sampling at its height was done mostly by marginalized hip-hop artists and in at least one case, sampling has been referred to as theft.[vi] While mashup artists have yet to face challenges in court, the music seems to proceed without the response hip-hop artists faced. In fact, some mashup artists openly discuss their reliance on fair use to create their works. As MCs did (and do), mashup artists often release music for free online, without clearing rights, but many travel the world and fill concerts playing this uncleared music. The treatment of mashup DJs and hip-hop artists is noticeably different. It is difficult to determine whether the distinctions are due to the times, whether we have evolved into a culture of sharing, or whether the difference is in who does/did the sampling versus who is making mashups.
Who’s Got Next?
There may be some who say every artist, hip-hop and mashup artists included, should be required to license music, but this methodology negates fair use, which is a right available to everyone. That Campbell is the only case, seminal though it is, to address hip-hop and sampling to reach the U.S. Supreme Court is a shame. That many artists rarely, if ever, raise fair use when litigation is threatened, or happens, is both concerning and frustrating.
As discussed on this Public Domain Day blog, Professor Kevin Greene suggests ways to help hip-hop artists. The pioneers of hip-hop need to be informed and educated that they may soon be able to exercise their rights under termination of transfer which allows artists and their estates to end what might have been predatory copyright transfer contracts and regain their copyright. Helping artists in this way could address the past stifling of their creative works during the golden age of hip-hop.
It is possible that the disparate treatment of mashup and hip-hop artists is due to the passage of time and changing attitudes about music and sharing. If this is the case, then hip-hop artists should be able to avoid the expensive licensing schemes that hinder creativity and innovation in the genre. Mashup artists seemingly rely heavily on fair use without challenge from the recording industry. The argument is not that they should receive the same treatment as hip-hop artists of the past (and present). The argument is that both types of works be treated as transformative works under fair use. Hip-hop artists should be allowed to rely on fair use as a means to spur creativity and innovation in hip-hop without fear of litigation.
Note. Not in Court ‘Cause I Stole a Beat: the Digital Music Sampling Debate’s Discourse on Race and Culture, and the Need for Test Case Litigation. University of Illinois Journal of Law, Technology and Policy 141, 2012. http://illinoisjltp.com/journal/wp-content/uploads/2013/10/Cox.pdf. Accessed 24 Feb. 2021.
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 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 Library and across campus. Prior to this role, she was the Copyright Services Librarian at Ohio State University Libraries. Sandra is committed to diversity, equity, and inclusion (DEI) and is interested in the intersection of DEI and intellectual property.
[ii] Biz Markie, a few years after being ordered to pay damages to Gilbert O’Sullivan in Grand Upright Music, Ltd v. Warner Bros. Records Inc., for the unauthorized sampling O’Sullivan’s song “Alone Again (Naturally)”, released an album titled All Samples Cleared.
[iii] The Beastie Boys began clearing rights after releasing Paul’s Boutique, which contained samples they did not or could not clear. Coleman, Jonny. “Meet The Woman Who Helps The Beastie Boys, Beck And The Avalanches Clear Their Samples.” LAist, https://laist.com/2016/10/19/pat_shannahan_detective_sampling_interview.php. Accessed 23 Feb. 2021.
[iv] In Grand Upright Music, Ltd v. Warner Bros. Records Inc., the court ruling changed hip hop music, requiring that future music sampling be approved by the original rights holders. This was limited to the Southern District of NY, but the impact reverberated throughout the industry.
[v] Artists like Girl Talk and Danger Mouse among many others.
[vi] In Grand Upright Music, the court stated the biblical verse “Thou Shall Not Steal” and ruled that sampling without permission constitutes copyright infringement.
Day two of Fair Use Week opens with UVA’s Brandon Butler tackling critical takeaways from the recent case addressing fair use & software in Apple Inc. v. Corellium, LLC, Case No. 19-81160-CIV-SMITH, 2020 U.S. Dist. LEXIS 249945 (S.D. Fla. Dec. 29, 2020) – Kyle K. Courtney
Apple v. Corellium: Some Early Takeaways for Software Fair Use
by Brandon Butler
What uses of software are fair? What uses are transformative – the category of use that courts most consistently find to be fair? The question is increasingly urgent for libraries, archives, and museums, as we already live in a world where most information (from government archives to fine art) is stored in digital formats that can’t be read without the right software. In addition, software itself is also an artifact and a source of information that researchers want to consult and explore. Fair use is a key tool in library digital stewardship, but fair use’s application to software is rarely, if ever, litigated.
That’s why the opinion last December in Apple v. Corellium is so interesting, even though it’s (so far) just one district court judge’s take, and not binding precedent on anyone else. In a field with so few entries, any judicial opinion is likely to be read with interest by other courts and would-be litigants.
The other reason the opinion is so interesting is that in some ways, Corellium resembles the kind of emulation technology that libraries and archives can use to run old software on servers and make it available to end-users over the internet. The basic contours of Corellium’s fair use argument are essentially the same as the ones that justify software preservation and reuse in the library and archives context—in a phrase, that our service is a transformative use (in the fair use sense) that serves copyright’s purpose of increasing access to information without displacing the copyright holder’s reasonable or traditional market.
First, some background. You can find a pretty good summary of the lawsuit in this somewhat misleadingly-headlined story in The Washington Post. (The headline, “Apple loses copyright battle…” is misleading because Apple hasn’t really lost, yet; they lost on fair use, but as I’ll explain below, Apple may still win on their remaining DMCA claim). The very short version is that Corellium provides developers and security researchers with a platform that lets them run and explore Apple’s iOS software in a server environment, which has advantages over trying to run and manipulate the software on an iOS device (an iPhone or an iPad). After failing to acquire Corellium, Apple filed a lawsuit claiming that Corellium infringed the copyright in iOS by loading the software into its platform, and later, added a DMCA claim, alleging that Corellium’s platform circumvented technical protection measures for its users, and therefore Corellium was “trafficking” in circumventing technology. We’ll get to the second claim later, but first let’s look at some key takeaways from Judge Smith’s opinion on fair use.
Takeaway 1: Research is a transformative purpose, and add-on features help bolster your case.
Judge Smith holds that Corellium’s use is transformative – it serves a different function than iOS, and it adds value and information in the process. That’s important, because transformative uses almost always win on fair use (and non-transformative ones lose more than they win). Judge Smith cites a few key facts that lead him to this conclusion, but most important seems to be that Corellium does not “merely repackage” iOS in a new platform. Instead, it “makes several changes to iOS and incorporates its own code to create a product that serves a transformative purpose.” Judge Smith calls out several things users can do with the Corellium platform that “make available significant information about iOS”:
“(1) see and halt running processes; (2) modify the kernel; (3) use CoreTrace, a tool to view system calls; (4) use an app browser and a file browser; and (5) take live snapshots.”
Because these features serve security research, Corellium’s avowed transformative purpose, and are not available in stock iOS, they help show that Corellium’s platform is transformative – it does something different and new.
Judge Smith returns to these features, and the ways that they allow the user to learn new things about the software, over and over again. Libraries and archives interested in making software available for research purposes (and the technical experts building the tools to support this) should strongly consider adding features like Corellium’s to facilitate deeper engagement with the software.
Takeaway 2: A few bad apples don’t spoil the fair use bunch.
Apple argued that because some Corellium users might not be engaged in bona fide security research, the tool shouldn’t be considered transformative. Judge Smith rejected this argument, saying that the record showed Corellium’s intended use was for security research, and the possibility that it may not always be used for that purpose does not undermine the finding of fair use. This reasoning would be handy for libraries who have to contend with the notion that not all library users would consult software (especially games or art) for purely research purposes.
Takeaway 3: Software is a weird hybrid of functional and creative work, but that doesn’t make the second fair use factor any more important.
The second fair use factor — the nature of the work — has become kind of a vestigial organ. Courts go through a kind of rote recitation that use of more factual works is favored while use of more creative works can be less favored, but many important fair uses involve creative works…. and blah blah blah. Given this mushy mess, courts are increasingly comfortable saying explicitly that this factor doesn’t really matter in the final calculus. The Corellium opinion takes judicial indifference to the second factor to a new level. Judge Smith does lay out arguments from Apple and Corellium, and acknowledges that software is a kind of hybrid of functional and creative work – iOS is fundamentally a tool, but it has aesthetic and creative aspects, etc.. But he concludes by quoting Judge Leval in the Google Books case saying that the second factor rarely matters, and then… he just moves on, without even expressing an opinion on how the factor should be weighed in this case!
Takeaway 4: Consider turning off features that aren’t useful for research (but might be commercially competitive)
In considering whether the amount of iOS used in the Corellium product is appropriate, Judge Smith considers how much is needed for the transformative purpose of security research. Downloading and copying all of iOS as part of the installation process is reasonable, he says, but he also notes approvingly the features of iOS that are *not* ultimately made available to Corellium users. Face ID, Touch ID, baseband, camera, and the App Store are some examples of iOS features not available to Corellium users. Corellium users also can’t make calls or send messages.
Arguably, most library and archival software uses will face less scrutiny on this point, as they will not involve software that is still commercially available. The prospect of providing a commercial substitute for the original should be much less threatening in that case. Still, it might strengthen the fair use argument to think about the ways research access to software does not offer the full range of services available to an ordinary consumer. For example, when providing access to software titles used to create files, such as word processing, design, or music production software, consider limiting the ability to save or export those creations.
Takeaway 5: Software copyright does not convey a monopoly on research platforms
One of Apple’s attacks on Corellium was that their platform unfairly competes with an iOS security research offering that Apple itself is developing and plans to release in the future. Judge Smith quickly dismisses this argument, saying Apple cannot use its copyright over iOS to create a monopoly over the separate market for security research. The same logic would apply to a variety of uses in cultural heritage institutions, who could argue that copyright does not confer a monopoly on the preservation and research tools and services they offer.
Takeaway 6: Reasonable vetting of users helps prove good faith.
Apple’s final argument was that Corellium should not benefit from fair use because it does not act in “good faith” (a factor not in the fair use statute, and arguably not relevant to it, but frequently invoked nonetheless). The primary basis for this claim is that users of Corellium’s products could be bad actors – they could discover bugs in iOS and, rather than reporting them to Apple, they could sell them to malicious hackers. Judge Smith rejects this argument, pointing out that in fact Corellium does do some vetting of potential users, rejecting those it suspects could be interested in malicious uses. Cultural heritage institutions might similarly consider whether, in some cases, potential users could be screened to help ensure their purposes are bona fide. This vetting doesn’t need to be perfect – as mentioned in Takeaway 2, Judge Smith acknowledges that any tool is capable of misuse, and a tool or service can still be legitimate and transformative even if some users may not behave as the creator intended.
Takeaway 7: The DMCA can still screw everything up.
Since its passage in 1998, the most glaring failure of the Digital Millennium Copyright Act (from a user perspective) is the way it seems to undermine the balance in copyright. This case is another example of the law’s glaring failure on that score. Briefly, the DMCA created a new right for copyright holders – a right against the circumvention of technological protection measures. In other words, when copyright holders use digital locks (encryption, authentication servers, etc.) to block access to copyrighted works, the DMCA gives them a right to sue anyone who breaks those locks. While this issue is not settled, Judge Smith sides with the courts who have found that the DMCA bars breaking digital locks *even if the ultimate use of the work is legitimate fair use*. It is as if the law gave someone a right to fence off sections of any public park, and to sue anyone who took down the fence, even though the public has the right to access the land inside.
Here, Apple has implemented a series of digital protections that prevent installation of iOS on non-Apple hardware, which they say Corellium circumvents as part of adding iOS to its research platform. Notably, Apple claims that Corellium not only engages in circumvention itself, but also that they “trafficked” in circumventing technology by providing their platform to users. This is important because another major flaw in the DMCA is that although it does include statutory exemptions for users (and it empowers the Librarian of Congress to create new ones every three years), there are no exemptions from the prohibition on trafficking in circumvention tools. So, while Corellium’s users arguably qualify for the exemptions related to security research, if Corellium itself is found to be trafficking in circumvention tools, there is no exemption or defense to protect them.
Judge Smith doesn’t rule on the DMCA claim in this opinion. He says there are genuine issues of material fact that need to be determined first, so the case will move forward with further fact-finding and a trial. But the startling takeaway, here, is that despite the headlines, Corellium is still very much in danger of losing this case, even though its platform is perfectly legitimate fair use. Libraries, archives, and museums have secured exemptions for preservation (and are working on a modified exemption that would enable broader access), so they can take some comfort in that. However, if the court finds that Corellium’s use is “trafficking,” then exemptions will not help. Given the prevalence of digital rights management in software, this result could chill a substantial body of legitimate fair uses.
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.
We are delighted to kick off the 8th Annual Fair Use Week with a guest post by the worldwide copyright expert, Kenneth D. Crews, as he contemplates an important question on the most recent U.S. copyright legislation. -Kyle K. Courtney
Can Fair Use Survive the CASE Act?
by Kenneth D. Crews
When Congress thinks of COVID, it seems to also think about copyright. Congress made that connection at a critical moment this last December. Embedded in the appropriations bill that gave emergency funding to citizens in need, was a thoroughly unrelated provision establishing a copyright “small-claims court,” where many future infringements may face their decider. The defense of fair use will also be on the docket.
The new law, known as the CASE Act, establishes the Copyright Claims Board within the U.S. Copyright Office, where parties may voluntarily allow their infringement cases to be heard. A copyright owner, as “claimant,” may choose to commence legal action in the new agency. The user of the work, or the “respondent,” may allow the matter to proceed or may choose to opt-out, effectively sending the case back to the copyright owner to decide whether to drop the matter or file a full-fledged lawsuit in federal court.
Realistically, this new court-like Board may be a dark hole where cases mysteriously disappear. Some claims will be filed and then bounced as the respondents opt-out. Other claims will be launched, and respondents will simply vanish or fail to understand or react at all, sending the matter into default. When a proceeding finally comes to fruition, the parties will investigate and present evidence, and the three appointed Copyright Claims Officers will determine the outcome of each case. Any claim of infringement will be subject to relevant defenses, such as expiration of the copyright, as well as fair use and other copyright exceptions.
The Copyright Claims Board will not open for business until late in 2021 at the soonest, but this is a good time to contemplate how fair use might play out. Think of these stages and possibilities:
Raising the Defense. A proceeding begins with the filing of a claim and the formal delivery of notice on the respondent. The first mention of fair use (or any other copyright exception) will typically appear in the respondent’s reply. But surely the claimant will foresee fair use asserted in many of these small-claims proceedings.
Gathering the Evidence.Courts and commentaries regularly remind us that fair use is a fact-specific matter, and the details of each case can determine the outcome. Staff attorneys working for the Board have the authority to investigate a matter, and the Officers have the authority to allow the introduction of evidence. Think of that fourth factor of fair use: the effect of the use on the market for or value of the work. A court will often need confidential economic data about the sales of the work in question and the revenue earned. The Copyright Claims Officers, parties, and staff attorneys do not have clear authority to compel disclosures and discovery. They can “request” documents and information. As a result, the Board could frequently be called upon to decide questions of fair use, but without the needed evidence. The choices at that point will be far from satisfactory.
Reporting the Decision. The Board is required to make a public disclosure of its decisions and the legal basis for rulings, but the statute includes few other details. The public announcement of a ruling might be little more than a conclusion, leaving only by implication the resolution of the fair use argument and the reasoning. On the other hand, the ruling on fair use could be an elaborate legal analysis. Because the parties have limited ability to appeal a ruling, the Officers might not feel the need to hand down complex opinions.
Depth of the Analysis. On the other hand, all judges know that their rulings on fair use are convincing to parties and lawyers only if their analyses are solidly persuasive. The same will be expected of the new Copyright Claims Officers, and for that reason they might want to pursue trenchant examinations of fair use. The Officers will also be looking to the parties for their arguments, and the parties are permitted to be represented by attorneys (or even by law students). Keep in mind that the typical proceeding will involve a modest use of a single work, and such users will also typically not be in position to retain specialized and expensive legal counsel. Consequently, the legal analyses presented to the Officers will often be far from equitable as between the parties.
Creation of Precedent. Decisions from the Copyright Claims Board will not be binding on anyone other than the immediate parties, and they officially will have no precedential value in later actions in a court or before the Board. Yet conventions of lawyering and the inevitability of human reasoning will surely press to the contrary. As the Board builds a record of rulings, the outcomes and the reasoning will undoubtedly be fodder for scrutiny and statistical tabulation. Individual rulings will in some manner be referenced in later proceedings. Analyses of trends and patterns will be pursued for their scholarly value and as insights for parties and attorneys thinking about the next case to come before the new Board.
Can fair use survive in this small-claims Board? Technically, the answer is definitely yes. However, fair use may also be vulnerable to distorted determinations, resulting from the lack of critical evidence, the pressure to manage a growing roster of legal proceedings, and the inequities of legal representation. Until the court can demonstrate a record of wise and effective rulings on fair use, any party to a claim that is likely to hinge on an innovative or nuanced question of fair use would probably we wise to opt-out of small claims and send the case to settlement or federal court.
Kenneth D. Crews is an attorney and copyright consultant 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, published by ALA Editions. The publisher has kindly made the new fourth edition of the book available at half price during Fair Use Week.
When you put music, technology, and one sleepless night in a blender, how do you end up with fair use? This year, some students at Johns Hopkins helped us figure that out!
A new annual tradition at the Peabody Institute, PeabodyHacks invites students to spend 24 hours experimenting and developing projects at the cross section of music and technology. We encourage novice attendees, try to foster collaborations between engineering and music students, and focus more on process and experimentation than sophisticated final projects. The event also allows students to meet guest artists like Laetitia Sonami and Suzanne Kite, whose work challenges ideas of being, femininity, relationships with artificial intelligence, and embodiment of digital sound and physical bodies.
The second Peabody Institute annual hackathon brought to life a slew of interesting projects in January 2020 focusing on music and accessibility. Students created electronic instruments for beginners, developed games to help students with beat-deafness (it’s a thing!), and, to my delight, made music more accessible with fair use!
Ankur Kejriwal, Dylan Lewis, and Winston Wu are students who, during their day jobs, study engineering and computer science. As serious amateur musicians, they wanted to develop a project that made music more accessible for musicians who were still developing their chops and might find sitting down at the keyboard to play their favorite music intimidating. Semplice, their music simplification engine, allows anyone to take their favorite piece of music and make it easier to play without losing what they love about the piece.
The premise behind Semplice is, well, simple: a user uploads their copy of their favorite piano piece that is too hard to play, and chooses how to make it easier. They can eliminate all 16th notes so that they don’t need to play as fast, simplify the left hand, or turn the left hand playing all into chord blocks. While simplifying the left hand makes it easier to play, it also allows for harmonic analysis of piano music, which can be beneficial for music theory students or anyone who might want to learn more about arranging and improvising.
Once you’ve selected how much easier to make the piece, then the magic happens! After quickly processing it through an OMR engine (optical music recognition), users get the new version of the piece to download and perform for their own study and personal use. Or, as I like to think of it, musical fair use magic!
When I reached out to the team after their 2nd place finish in the hacking competition, they were surprised that fair use had anything at all to do with their work. They had some experience with music copyright as music lovers: Winston Wu shared that he often buys transcriptions of his favorite symphonic works to play on piano, his main instrument. But when they were developing Semplice, they hadn’t spent a lot of time thinking about copyright.
The simplicity of the project is also what makes it such a wonderful example of fair use: users upload copies of music that they already own and only the uploader gets the simplified, derivative version. Speaking with Ankur Kerjiwal, he notes that even the processing logs don’t tell you anything about what pieces were uploaded and processed. You can see what someone named their file, but no user info is collected during the process, so the metadata in the logs doesn’t tell much of a story at all. The team is currently considering how to make the engine available, but they envision it as a free, light weight tool that solves a specific problem without copying, distributing, or making additional copies of the music available.
In conversations with Ankur, even though the team wasn’t thinking about fair use this time, copyright and fair use often create a “road bump” in his work. He relies on large datasets for testing his software projects and, as a PhD student, he needs to be able to publish that data openly to have his work peer-reviewed. While some of us who frequently work on copyright might think that the Google Books case settled the issue of computational data, it’s complicated, especially with music and websites who have restrictive terms.
I asked Ankur about his experience using the widely available musiXmatch dataset that is part of the Million Songs Dataset project. Because of copyright and other restrictions, less than one third of the million songs data lyrics are included. Also, to side-step concerns about the dataset, the research team has released the set as bag-of-words data, meaning that you don’t get the collected lyrics for each title, just counts of words across the dataset. I asked Ankur if this limited the utility of the dataset. He said, “Absolutely – you would be able to do much more if the set included full lyrics in the order they appeared in a track.”
Music continues to bring us its share of fair use challenges, but it’s exciting to see young engineers wading into the fair use waters. Uncovering unwitting fair uses in our campus community has proven a great way to educate faculty, students, and colleagues about how to flex their fair use muscle. With resources like our copyright consultation service at the Peabody Institute of the Johns Hopkins University, I hope that we can continue to work with students to help them take advantage of their fair use rights so that they can make music, accessibility, and magic happen.
Kathleen DeLaurenti is the Head Librarian at the Arthur Friedheim Library at the Peabody Institute of the Johns Hopkins University. Her work includes publishing projects for music, teaching music-focused copyright, and advocating for both fair use and the public domain. She has been active in the Music Library Association (MLA) Legislation Committee as a member since 2009 where she has also served as chair of the Best Practices for Fair Use in Music Collections task force. She has also been a member of the Copyright Education sub-committee of the American Library Association (ALA) and is the 2015 winner of the ALA Robert Oakley Memorial Scholarship for copyright research.
On the surface it sometimes feels like copyright law is incoherent. On the one hand, we read about how the character of copyright is aimed at benefiting society; enriching public discourse; and promoting the progress of science and the useful arts. But then, we read elsewhere about copyright as a primarily economic tool, calculated to achieve maximum incentives for economic return to owners.
Athena Pallas (Minerva) and the Centaur, by Sandro Botticelli c.1482. (No need to use fair use for this image since it is in the public domain!)
When we have what seems like an irresolvable conflict between these two characters, fair use somehow always seems to make an appearance. Like the story of those Greek dramas in which gods descend onto the stage via machine (deus ex machina) to resolve seeming plot holes, fair use can sometimes seem to swoop in and handily resolve all issues.
Except it doesn’t, or at least it shouldn’t. Fair use is not some external entity acting on the copyright system at whim, like Zeus interfering in mortal disputes. But in day to day use, I experience the allure to treat fair use this way when working with people new to copyright who are seeking answers to basic questions such as “Can I reuse this figure in my article?” or “How much of this book can I scan for my students to read online?” After some preliminary introduction to what fair use does, I find those users have the strong tendency to fall in love with the power of doctrine. Why address other complex questions (“Is the work copyrightable to begin with?” “Is what you want to do even implicating any of the owner’s exclusive rights?”), when, like a magical incantation, it seems you can just say words like “transformative” and “educational” and, presto chango, everything is OK!
While fair use is powerful, it isn’t magic. What it is, is an integral part of the Copyright Act. As the statute states, fair use is a “right” too, and exercising it is “not an infringement of copyright.” It also requires rigorous analysis. Mindlessly incanting words such as “transformative” won’t do. There is now helpful empirical evidence that fair use applied by the courts is not arbitrary, but has a robust and coherent framework of analysis for ensuring that copyright doesn’t “stifle the very creativity which the law is designed to foster.” Whole codes of best practices from a variety of communities of practice—documentary filmmakers, librarians, and many others—have been developed to put into practice lessons from those cases, providing yet more certainty and coherence to the doctrine for users in day-to-day application.
Beyond misapplication, I think a much more serious concern is in the 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. Two recent cases in particular raise some concerns about whether core questions about the scope of copyright protection are being punted into an unnecessary fair use analysis.
ASTM v. Public.Resource.org is one such case, at its core about whether standards (e.g., material safety standards) incorporated by reference into federal law are protected by copyright or are unprotectable as “edicts of government.” The district court in that case concluded that such standards as incorporated into the law are protectable (a decision I think was wrong).On appeal, the D.C. Circuit Court of Appeals reversed but instructed that the best way forward would be to avoid the subject matter question and instead analyze first the use primarily through the lens of fair use.
Oracle v. Googleraises some similar issues. This is a case currently before the U.S. Supreme Court, primarily to answer the question of whether application program interfaces (APIs) are copyrightable. Google’s position is that they are not protectable and there is no infringement, at least in how Google has used them on the facts in that case, while Oracle says that they are. As a backup argument, Google argues that even if protectable, its use is fair use. Google has a good, though a bit awkward fair use argument, explained well both in its brief and in supporting briefs from amici . Like the ASTM case, this case raises much more important questions about the scope of protection. Currently before the Supreme Court, my hope is that the Court does not dodge those important questions even if fair use gives them the option.
So is fair use copyright’s a deus ex machina? No, I think not, but we are sometimes tempted to ask it to be. We have a lot to lose if we do that. In any individual case, it probably doesn’t matter much, but over time and across many situations, we risk watering down the currently robust, predictable doctrine. I’m not saying that we should avoid fair use at all costs, but it’s important to remember that fair use is just one part (an important part) of the copyright system, and we shouldn’t lean on it to resolve all of our issues.
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.
Ankur Kejriwal, Dylan Lewis, and Winston Wu are students who, during their day jobs, study engineering and computer science. As serious amateur musicians, they wanted to develop a project that made music more accessible for musicians who were still developing their chops and might find sitting down at the keyboard to play their favorite music intimidating. 
