Fair Use Week 2020: Day Three With Guest Expert Carla Myers

February 26, 2020February 26, 2020 Uncategorized

Fair Use and Video Streaming

By Carla Myers

The use of video as a part of course instruction is certainly nothing new. However, I would argue that the ways in which instructors and students desire to engage with video has changed substantially over the years. Twenty years ago, when I was an undergraduate student, if a video was used as part of course instruction, we watched it one of two ways: 1) the instructor set aside time during a class for us to view the film, or 2) we borrowed the library’s copy that had been placed on reserve and watched it in preparation for class discussion. Legally speaking, these two options for watching the film did not raise any significant issues. The performance of the film in class was covered under the face-to-face teaching exception found in Section 110(1) of U.S. copyright law and the circulation of a copy via the library’s print reserve service was covered under the first sale doctrine found in Section 109. I gave little thought to these laws and methods of delivery when I was a student.

How times have changed. Now, as a copyright professional, helping instructors and students lawfully access video is something that I give a lot of time, thought, and analysis. In fact, for much of the past decade, I have worked in this field overseeing library reserve services. And in that time, while the options available under Sections 110(1) and 109 are still available to the students and instructors, most patrons now prefer to engage with video in a streaming format, and the legal exceptions available for filling these requests are not as clear.

When it comes to film streaming, libraries and educational institutions can consider the Technology, Education and Copyright Harmonization (TEACH) Act, found in Section 110(2) of U.S. copyright law and the fair use exception found in Section 107.

The TEACH Act was passed in 2002 in an effort to address the challenges being presented as online education began to emerge as one of the primary ways of delivering content to students. The intent was to be able to replicate, online, the same rights that an instructor or student might have in the classroom under Section 110. If you can meet all of the points of compliance required by the law, the TEACH Act it does provide options for streaming video online for course instruction. The problem libraries and educational institutions have with the TEACH Act is that it requires a tremendous amount of collaboration and effort from individuals and departments across campus to ensure that the 15+ requirements found in the statute are consistently being met for each film that instructors stream to their students. The TEACH Act also places a variety of limits on how works can be used and the period of time they can be made available to students. As such, many libraries and educational institutions interested in streaming film are looking to a much more flexible standard, fair use When making fair use determinations, we look to the fair use statute in Section 107. This statute states that “[n]otwithstanding” the copyright in the materials “the fair use of a copyrighted work…for purposes such as criticism, comment, news reporting, teaching, scholarship, or research” is not an infringement of copyright, subject to the four factors outlined in Section 107:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.

Let’s review how these factors interplay with the streaming use case.

Factor 1: Purpose

When it comes to streaming video, the first factor, the purpose of the use, will almost always weigh in the library’s favor when the film is being made available for educational purposes that support the teaching and learning mission of the institution. Here, the more transformative the use is the better. In his article, Towards a Fair Use Standard[1] Justice Pierre Leval tells us that a transformative use is one that “employ[s] the quoted matter in a different manner or for a different purpose from the original” and that “adds value to the original” through the “creation of new information, new aesthetics, new insights and understandings” (p. 1111). Film can definitely be used in a transformative way! For example, World War Z is a summer blockbuster that follows a man and woman as they try to determine what has caused the zombification of much of the world. This movie could be appreciated as a form of entertainment by anyone, but what if the film was used by an instructor teaching a class called “Introduction to Emergency Management?” What if the instructor asked her students to watch the film and, based upon what they learned in the class, provide criticism and commentary on the response of first responders, the government, and the military to a zombie/health crisis? This brings the viewing of the film into an entirely different context – scholarly -and students will apply new insights and provide greater understanding to the film, adding value to their educational experience in the course.

Factor 2: Nature

The second factor, that looks at the nature of the work being used, will more likely support streaming of factual-based films, such as documentaries. However, this does not mean that popular films cannot be streamed if they are being used as part of course instruction (see the example above), especially since popular films and other creative media are often utilized under a fair use standard.

Factor 3: Amount

The third factor asks us to consider the amount of the original work that is being used. This can be one of the trickier factors to evaluate, but mainly because so many misconceptions surrounding this factor exist.

For example, many people have heard that you can use up to 10% of a work or, in the case of film, up to three minutes, and that will qualify as fair use. Under the law, the fair use statute places no such limits on the amount of a work that can be used, nor does it abide by any arbitrary limits. There is definitely no magic number or timed amount that will provide an institution with any type of safe harbor to shield them from claims of infringement. If we take a look at the judicial history of fair use, we will find numerous cases where the courts have found that the reuse of 100% of a work to be fair, and others where the reuse of small portions of a work have been found to be infringing.

Frequently instructors will want to provide students with access to an entire film, and that may be supported under the third factor if the entire work is important to achieving the educational objectives of the course. Judge Leval tells us that when considering the third factor, “an important inquiry is whether the selection and quantity of the material taken are reasonable in relation to the purported justification” (1990, 1124). For example, say an instructor is teaching a computer generated imagery (CGI) course and wishes students to view the film The Lord of the Rings: The Fellowship of the Ring directed by Peter Jackson (2001) to show what groundbreaking use of CGI looks like in film. While the film contains many scenes that are rendered almost completely in CGI (the actor playing Gollum included!), there are also many scenes in the film that contain no CGI. For this course, the instructor could likely tailor the course to student-viewable clips from the films featuring CGI focused scenes. However, if an instructor was teaching a class called “Tolkien in Theater, Radio, and Film” that explored how Tolkien’s works have been retold in these media formats, it may be appropriate for students to have access to the entire film so they can compare Peter Jackson’s expression of the story against other versions.

Factor 4: Market

Over the past decade, the fourth factor of fair use has become more complicated to address when looking to stream film as part of course instruction. This is because of the expansion of the commercial streaming market that includes library vendor services (e.g., Hoopla and Kanopy) as well as general vendors such as Amazon, Hulu, iTunes, Vudu, and Netflix. These services offer the public access to streaming film through rental, licensing (read the terms with these vendors…rarely do we purchase digital files from them anymore), or subscription models.

When a film an instructor is interested in making a work available to students in its entirety, and the work is available through one of these vendors, we must take the streaming licensing options into consideration when evaluating the potential market effect of the use. As with all fair use determinations, the existence of a license for rental or “purchase” of a work does not mean that fair use can’t be used. But it does mean we have to work through our decision-making process on this factor more carefully. The argument for fair use can be strengthened when a film is not commercially available in a streaming format or when an instructor only requests clips – because, in these examples, there may be limited market harm.

Enter the Code of Best Practices in Fair Use for Academic and Research Libraries (2012) put forward by the Association of Research Libraries, the Center for Social Media at American University, and the Program on Information Justice and Intellectual Property at the Washington College of Law, American University. This Code, part of the family of fair use best practices codes,[2] can help librarians and educators is addressing these considerations and making thoughtful determinations of fair use.

The Code tells us that a fair use argument can be made for making “appropriately tailored course-related content available to enrolled students via digital networks” (p. 14). Here, it’s important to remember that fair use determinations must be made on a case-by-case basis. This statement in the Code does not mean that making any course-related content available to students online is a fair use, each title must be evaluated for fair use based upon the facts specific to its use in the course and its market availability. The Code does provide us with some enhancements that can aid in the making of these decisions. They include:

An argument for fair use can be strengthened when the film is being used in a transformative context and the amount being used is appropriate to the instructor’s pedagogical goals (p. 15).
Fair use arguments are reviewed on a regular basis to help ensure the works being used and the amount of the film being made available remains relevant and appropriate for course instruction (p. 15).

The Code also provides some additional factors to consider in these situations:

“The availability of materials should be coextensive with the duration of the course or other time-limited use (e.g., a research project) for which they have been made available at an instructor’s direction.
Only eligible students and other qualified persons (e.g., professors’ graduate assistants) should have access to materials.
Materials should be made available only when, and only to the extent that, there is a clear articulable nexus between the instructor’s pedagogical purpose and the kind and amount of content involved.
Libraries should provide instructors with useful information about the nature and the scope of fair use, in order to help them make informed requests.
When appropriate, the number of students with simultaneous access to online materials may be limited.
Students should also be given information about their rights and responsibilities regarding their own use of course materials.
Full attribution, in a form satisfactory to scholars in the field, should be provided for each work included or excerpted” (p. 14).

Those familiar with the TEACH Act will see some of its requirements echoed in these recommendations! While fair use and the TEACH Act are two separate statutes, it is not unreasonable to consider how some of TEACH’s requirements, like limiting access to online educational resources to those enrolled in the course and providing information on copyright law to instructors and students, can help support the application of fair use in these situations. When it comes to streaming film, there are also considerations under the Digital Millennium Copyright Act (often referred to as the DMCA) of which we must be aware. This goes a bit beyond the scope of this blog post, but there are good blog posts on this out there that explore these considerations, and it is a topic that has been addressed repeatedly as part of the triennial rulemaking process administered by the Librarian of Congress.

While licensing access to film for instructional use is an option for libraries and educational institutions to consider, we should be careful not to view it as the only option available to us. We can’t forget our mission as libraries and educators to provide access to quality resources that enhance students educational experience. Congress recognized the importance of the work we do when including exceptions like fair use in the law. Fair use arguments can be made for providing students with access to streaming film. As in the case with all fair use determinations, they just need to be made thoughtfully, and demonstrate a balancing of the four factors in a way that reflects both the rights of users and those of rightsholders.

Carla Myers is Assistant Professor and Coordinator of Scholarly Communications for the Miami University Libraries. Her professional presentations and publications focus on fair use, copyright in the classroom, and library copyright issues. She has a B.S. in Psychology from the University of Akron and a Masters in Library and Information Science from Kent State University. Her new book, Copyright and Course Reserves: Legal Issues and Best Practices for Academic Libraries, published by Libraries Unlimited (978-1-4408-6203-8) is available for pre-order now, to be released in the Fall.

[1] Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990)

[2] Some others are the Society for Cinema and Media Studies’ Statement of Best Practices in Fair Use in Teaching for Film and Media Educators and the Code of Best Practices in Fair Use for Media Literacy Education.

Fair Use Week 2020: Day Two With Guest Expert Brandon Butler

Quote February 25, 2020February 25, 2020 copyright, fair use copyright, fair use, Fair Use Week

The Feist-y Reason That Text and Data Mining is Fair Use

by Brandon Butler

Happy Fair Use Week! This is a happy week, indeed, for me, because fair use is my favorite copyright doctrine. But my favorite copyright decision just may be Feist v. Rural Telephone Co., a case about…telephone books!

Among the many wonderful qualities of the Feist opinion is the bright neon line that it draws between the purpose of copyright (to give incentives for the creation and distribution of creative, expressive works) and what way, way, WAY too many people think is copyright’s purpose: to ensure that someone who works hard to make something gets paid every time someone else uses it. If you understand why Feist draws that line, you’ll understand why text and data mining is clearly a fair use. (See, I got there! Now hang in a little longer and I’ll get back to fair use in a minute…)

The idea that whoever makes something should control it, or get paid whenever it gets used, is sometimes called “labor-desert theory,” and it sounds pretty tempting. There’s even an Enlightenment philosopher that people invoke to support it: John Locke, who is said to have argued that when someone takes something from “the commons” and mixes it with their labor, the result is a delicious property gumbo, and it is theirs.

It’s been a minute since I last read Locke, so I can’t promise that’s the most faithful representation of his thinking. But I can tell you it is a pretty faithful representation of the arguments that some copyright holders and property rights enthusiasts make in favor of long, strong copyright. They talk about how hard it is to make a movie, how much time and energy must be devoted to various forms of creative work, how many jobs are required to make the creative economy hum, and so on.

That may all be true, but the fact (ha!) is that how hard you work to make something is irrelevant to the question of whether copyright protects it. Why? Well, it is an axiom of US copyright law that the author’s monopoly protects her expressive contributions to a work, but does not protect any facts (or ideas) that might be embedded in the work.

For example, where two authors write about the same underlying historical event, the first author may prevent the second author from copying too much of her expressive prose (these were the facts of the pioneering fair use decision Folsom v. Marsh, in which verbatim copying from an exhaustive biography of George Washington to create a second, shorter biography was found to be infringing), but she certainly can’t prevent the second author from relying on facts uncovered in her research (as, for example, in Miller v. Universal, where an author’s “research” on a famous kidnapping case was held not to be the proper subject of copyright protection as against a second author). Facts are not created by anyone (pace post-modernism etc.), and are no one’s property, according to copyright law. And, crucially, wrapping facts in a crunchy, flaky layer of your copyrighted expression is not enough to give you rights in the underlying facts.

Despite the bedrock status of this proposition, and its seemingly clear embodiment in the statute at § 102(b) of the Copyright Act, courts had trouble resisting the impulse to reward “sweat of the brow” or “industrious collection” by granting copyright protection to facts first revealed in a work of authorship. It wasn’t until the 1991 resolution of a dispute over the wholesale copying of names and numbers in telephone directories in Feist that the Supreme Court gave us a strong, clear articulation of both the principle and its deep Constitutional foundations:

The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. [citations omitted] Thus, if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them.

[snip]

It may seem unfair that much of the fruit of the compiler’s labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not “some unforeseen byproduct of a statutory scheme.” Harper & Row, 471 U. S., at 589 (dissenting opinion). It is, rather, “the essence of copyright,” ibid., and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but “[t]o promote the Progress of Science and useful Arts.” Art. I, § 8, cl. 8. Accord, Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975). To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. Harper & Row, supra, at 556-557. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. …This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art. (Emphases added.)

The Supreme Court subsequently called this distinction (also known as the “idea/expression dichotomy”) part of the “traditional contours of copyright” and a “built-in First Amendment safety valve.” This is, in other words, about as fundamental a proposition as there can be in copyright law, grounded in both the Copyright Clause and the First Amendment of the Constitution. To the extent that fact and expression in a protected work can be separated, the facts are free for the taking. Whether it’s a phonebook or a newspaper article, expression is protected, but facts are free.

But, it turns out that one of the most powerful ways to extract and use all the facts embedded in a wide variety of creative works, to separate them from the expression in which they subsist, is to use text and data mining. But in order to perform text and data mining, a computer has to do things that ordinarily require the permission of the copyright holder, namely, copying the full text of the works into a computer, and in many cases displaying to the public contextual snippets that substantiate your claims. All this takes place thanks to technology that the Founders certainly couldn’t have foreseen, and that even the drafters of the 1976 Copyright Act might not have anticipated. Enter fair use, with the flexibility required to adapt to a changing world.

While there was already plenty of smart writing on the issue, and a long line of cases pointing in the right direction, the question of whether using computers to read in-copyright texts and extract facts from them got its fullest, and perhaps final, answer when Judge Pierre Leval decided the Google Books case. Google Books was the result of a massive digitization effort in which university libraries (including ours) provided millions of books to Google to digitize and crawl, just like they crawl websites, to help people find books. (Libraries got to keep the digital copies, which we deposited with the HathiTrust Digital Library.) Leval more or less created the modern fair use doctrine in a law review article first published 30 years ago, so it was fitting that he was the judge to finally give a broad blessing to text and data mining. In his opinion, Judge Leval answers two fundamental questions:

Is Google’s purpose transformative, i.e., is it different from the author’s original expressive purpose and does it “serve[] copyright’s goal of enriching public knowledge” by using the protected material to “communicate[] something new and different from the original or expand[] its utility.” And,
Does Google’s use provide the public with a “substitute” in the market for the original works in a way that does “meaningful” “significant” harm to the market for the work?

The ethos of Feist informs these two questions in a fundamental way. First, Judge Leval finds Google’s purpose to be transformative because of its fundamentally factual, informative character. The core purposes of Google Book Search—to locate relevant books by providing facts about the occurrence of search terms inside of books, and to reveal facts about the occurrence of words and phrases throughout the entire corpus of books—are of course radically different from the expressive purpose(s) of any particular book. And, not only is that purpose different, but it is consonant with the design of copyright itself, which is tailored to facilitate the free circulation of facts. It also serves the ultimate purpose of copyright, which is to “promote the Progress of Science” (where “Science” means all manner of learning and culture). Google Books is transformative because it is Feist-y – it liberates facts from expression in a way that adds to the world’s knowledge and doesn’t implicate the expressive monopoly of authors.

Which brings us to the question of market harm and substitution, which is also filtered through a Feist-ian lens. In addition to the obvious point that Google Book Search results are not a substitute for access to the underlying books (snippets are too small, and they are impossible to reassemble into the original work), which is certainly of fundamental importance, the court must contend with two other market-based challenges.

First, the Authors Guild argued that some users will find the information they need in snippets, which will forestall sales of the relevant works (either directly to researchers, or to libraries that serve them). The court’s response here is fundamentally Feist-ian: so what? That is, to the extent that the snippet reveals a fact that obviates a researcher’s need to buy a copy of the book containing that fact, that is all to the good.

Leval observes, by way of example, that a student looking for the year Franklin D. Roosevelt was first stricken by polio can find it in a snippet from Richard Thayer Goldberg’s The Making of Franklin D. Roosevelt (1981) that is returned from a Google Book Search query. The student will not have to buy Goldberg’s book, or even check it out from a library, to find this fact. And that’s fine; this is not a “harm” that copyright cares about. Judge Leval writes:

[The author’s] copyright does not extend to the facts communicated by his book. It protects only the author’s manner of expression.… Google would be entitled, without infringement of [the author’s] copyright, to answer the student’s query about the year Roosevelt was afflicted, taking the information from Goldberg’s book.The fact that, in the case of the student’s snippet search, the information came embedded in three lines of Goldberg’s writing, which were superfluous to the searcher’s needs, would not change the taking of an unprotected fact into a copyright infringement.

Or, as Justice O’Connor says in Feist, “This result is neither unfair nor unfortunate.”

The Authors Guild also argued that Google’s scanning harms a “derivative” market, namely the market for creating search databases and displaying snippets. At first glance, this may be the Guild’s most compelling argument. Maybe Google Book Search users never see the entire work, but of course Google itself necessarily does copy the full text, so the status of Google’s use behind the curtain could be less clear.

Judge Leval doesn’t think so. To the contrary, he says “There is no merit to this argument.” Why? Because

“The copyright resulting from the Plaintiffs’ authorship of their works does not include an exclusive right to furnish the kind of information about the works that Google’s programs provide to the public. For substantially the same reasons, the copyright that protects Plaintiffs’ works does not include an exclusive derivative right to supply such information through query of a digitized copy.”

Judge Leval goes on to argue that the right to create derivative works is limited to works that “re-present the protected aspects of the original work, i.e., its expressive content, converted into an altered form.” As has already been established, the Google Book Search project does no such thing. Indeed, Judge Leval distinguishes Google Book Search from other projects that have sought permission to display shorter portions of books or songs (as in ringtones) by observing that,

Unlike the reading experience that the Google Partners program or the Amazon Search Inside the Book program provides [or the listening experience that Ringtones provide], the snippet function does not provide searchers with any meaningful experience of the expressive content of the book. (emphasis added)

So, the fact/expression dichotomy, defended most memorably in Feist, does a lot of work in the Google Books opinion. And that is a good thing, because it grounds the right to text and data mine in fundamental copyright and Constitutional principles with roots as deep and broad as the fair use doctrine itself.

Brandon Butler is Director of Information Policy at University of Virginia. There he works on implementing programs to guide the University Library on issues of intellectual property, copyright, and rights management for scholarly materials. He was a Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law from 2013 to 2016. Before that, Brandon was Director of Public Policy Initiatives at ARL from 2009 to 2013.

Fair Use Week 2020: Day One With Guest Expert Kenneth D. Crews

February 23, 2020 copyright, fair use copyright, fair use, Fair Use Week

Presidents, Politics, and Fair Use

by Kenneth D. Crews

It’s February in an election year, and that can only mean that fair use is everywhere. It is on the television, in the political rallies, and in the leaks and machinations of governmental grinding. We might often think of fair use as the basis for quotations in books, classroom materials for students, and innovative art and music built on generations of creativity that came before. But fair use is an inherently political creature.

Fair use originated in United States court cases from nineteenth century, and it was enacted by Congress as Section 107 of the Copyright Act of 1976. Getting anything through Congress is of course a political challenge, and every bit of the 1976 law was a belabored exercise that required almost two decades of hearing and compromises before Congress was ready to make the political decision affirming fair use into American copyright law.

Fair use is also political because it represents a policy choice by lawmakers in courts and Congress to allow limited uses of other people’s copyrighted works, taking into consideration variables of fairness, now known as the four factors of fair use. Congress at the same time made the political decision to empower individuals to engage in fair use – to determine what is good and proper as the law directly affects the copyright owners and users – and to evaluate how uses might affect broader public interests and promote the mission of copyright to encourage creativity.

The politics of fair use also has a much more earthy manifestation. As the campaign season becomes more heated, fair use becomes more prevalent. Some uses are surely accomplished by license while other works may not be protectable under copyright at all.

Consider the campaign ad that includes a clip of a presidential candidate speaking pointedly on a CNN program. Depending on the candidate’s exact statements and your point of view, you might want to use that clip in a short TV spot to support or attack this candidate. It matters not whether the speaker is Biden, Buttigieg, Bloomberg, Klobuchar, Sanders, Trump, Warren, or any other election prospect.

Imagine you are the campaign manager for a candidate trying to launch your latest ads, and those several seconds from CNN are perfect. You could get permission, but unless you have a prior arrangement to expedite the process, permission can be fatal. It might never come; it might be burdened with conditions; it might have a hefty fee. Permission can stall the moment, and you are going to miss your constant rolling deadline.

Further, suppose you still want permission; you have to wonder, “Who can grant this permission?” The candidate is speaking her own words; the candidate likely owns the copyright in those words. The CNN crew members are choosing camera angles and developing the layout and imagery on the screen; CNN surely holds those copyrights. Other copyrights might creep into the clip, including quotations, signs, and background music. Theoretically, multiple permissions might be needed for just the momentary passage.

Fair use fills the voids and paves over the uncertainties. Based on the four factors, this campaign use of the clip is highly likely to be within fair use. The election purpose advances the social policy of copyright; the work is fact-based news of great public interest; the amount is minuscule; and the use may well promote CNN and not harm it.

Realistically, this kind of use is also a classic calculated risk. The campaign is in full tilt. The election is on Tuesday. The polling is grim. You’re are holding a prime-time ad slot on the networks tonight. You have to get this great commercial shot, cut, and launched. The risk calculation is more than just wishing for the best or hoping no one notices. The risk is in large part your own determination that a judge will agree that you are within fair use.

Realistically, these things rarely if ever go to court. In Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014), the court ruled that the makers of t-shirts criticizing the mayor of Madison, Wisconsin acted within fair use when they made transformative use of a photograph of the mayor. Perhaps most important, the use encompassed only a portion of the photograph for a transformative purpose, and the use did not substitute for objectives of the original work. Add the pressured production deadline for a campaign ad and that the candidate’s statements are customary political fodder, and the likely result is a stronger case for the copyright exception.

Instead of going to court, political fair use is usually fought in the trenches among well-meaning and stressed professionals. At the least, they (i.e., their lawyers) should know the fundamentals of copyright and fair use and be ready to assert or respond to an infringement claim. They should also know that sometimes presidential politics is breeding ground of fair use. When Justice Joseph Story developed the concept in an 1841 court ruling, he was deciding a case that involved the published papers of George Washington.

Which takes us to Trump and Watergate. In the thick of the latest impeachment proceedings, John Dean of Watergate fame, was a guest on CNN when the topic turned to leaked excerpts from the forthcoming book by former National Security Advisor, John Bolton. While other guests that day honed in on the formidable political threat, John Dean chimed, “You also have copyright issues here. Start releasing books that are not published.” The rest of the panel hit the boring button and moved on. But Dean was onto something – a fair use lesson from his past life in Watergate.

Dean went to jail in the 1970s. President Nixon resigned. Gerald Ford gave a pardon, and he wrote a memoir. The Nation magazine quoted about 300 words from the then-unpublished Ford manuscript. The U.S. Supreme Court ruled in 1985 that The Nation magazine was not within fair use in reprinting those selected words, from a vastly longer book manuscript, into a critical news report (Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)). Because the work was yet unpublished, the Supreme Court found that the amount was excessive and interfered with potential sales of the book.

Yes, John Dean, there are “copyright issues” surrounding the Bolton book and the Trump impeachment, especially while the book remains unpublished. However, copyright also offers some solutions. The press can write about the book, without necessarily using Bolton’s expression. Moreover, if publication is stalled or if the public interest escalates, the opportunities for fair use may well expand.

Welcome to the season of fair use. This is the time when fair use fuels elections and news reporting. This is the season which begins to define the perimeter between the public interest and the economic marketplace. This is the quadrennial interlude when fair use blossoms in full and is plainly visible for all to see on the daily news and the pressured campaigns.

Kenneth D. Crews is an attorney in Los Angeles and was formerly a professor of law at Columbia University and Indiana University. He is the author of the book Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions, available in a new fourth edition launched at the end of February 2020. Download a sample of the new edition and order online.

Fair Use Week 2019: Day Five With Guest Expert David R. Hansen and Kyle K. Courtney

March 1, 2019 copyright, fair use CDL, copyright, fair use, Fair Use Week

Fair Use, Innovation, and Controlled Digital Lending

by Kyle K. Courtney and David R. Hansen

One of the beautiful things about fair use is how it can soften the copyright act, which is in many ways highly structured and rigid, to provide flexibility for new, innovative technology.

To understand how, it’s worth appreciating the structure of the Copyright Act. If you look at the table of contents of Chapter 1 of the Act (“Subject Matter and Scope of Copyright”), you see the first several sections define basic terms such as copyrightable subject matter. Included in that first half of the chapter is Section 106, which defines the exclusive rights held by rights holders: the right to control copying, the creation of derivative works, public distribution, public performance, and display. In the bottom half of the Act, Sections 108 to 122 provide for a wide variety of limitations and exceptions to those owners’ exclusive rights. These exceptions are largely for the benefit of users and the public, including specific exceptions to help libraries, teachers, blind and print-disabled users, non-commercial broadcast TV stations, and so on.

Then, there’s fair use. As if perfectly positioned to balance between the broad set of rights granted to owners and the specific limitations for the benefit of users and the public, “fair use” is codified in Section 107, though it really isn’t a creature of statute. Fair use is a doctrine, developed by courts as an “equitable rule of reason” that requires courts to “avoid rigid application of the Copyright Statute when on occasion it would stifle the very creativity which that law was designed to foster.” In that role, fair use has facilitated all sorts of technological innovations that Congress never could have anticipated, allowing copyrighted works and new technology to work together in harmony.

One particularly innovative system developed to enhance access to works is “controlled digital lending” (“CDL”):

CDL enables a library to circulate a digitized title in place of a physical one in a controlled manner. Under this approach, a library may only loan simultaneously the number of copies that it has legitimately acquired, usually through purchase or donation….[I]t could only circulate the same number of copies that it owned before digitization. Essentially, CDL must maintain an “owned to loaned” ratio. Circulation in any format is controlled so that only one user can use any given copy at a time, for a limited time. Further, CDL systems generally employ appropriate technical measures to prevent users from retaining a permanent copy or distributing additional copies.

While the courts have yet to weigh in directly on the CDL concept, we now have some guidance from a case in the Second Circuit Court of Appeals, Capitol Records, LLC v. ReDigi Inc. This case is about the development of an online marketplace created by ReDigi, which facilitated the sale of “used” mp3 music files. Capitol Records sued ReDigi, alleging that ReDigi infringed its exclusive rights to reproduction and distribution when it attempted to use a particular transfer method to sell the used mp3s.

The Court of Appeals upheld a lower court ruling that the doctrine of first sale is only an exception to the public distribution right and, therefore, does not protect digital lending because, in that process, new copies of a work are always made.

The court also rejected ReDigi’s fair use assertion. It found that the use was commercial in nature, was considered non-transformative, and replicated works exactly and precisely; simply put, they created mirror image copies of existing digital files. Further, though the libraries associations in their briefs had raised the issue of a nexus of connection between fair use and specific copyright exceptions, such as Section 109 and 108, as an extension of Congressional policy that should influence the fair use analysis, the court did not discuss that argument.

That the court ruled ReDigi, a commercial enterprise, had interfered with the market for iTunes-licensed mp3s and their effort was not a transformative fair use, comes as no surprise to most lawyers and copyright scholars.

However, the decision, written by the creator of the modern transformative fair use doctrine, Judge Pierre Laval, contains several important lessons for CDL.

Transformative Use

First, the case raises a significant question as to whether CDL of digitized books may be “transformative” in nature. In the decision, examining the first factor, Judge Leval explains that a use can be transformative when it “utilizes technology to achieve the transformative purpose of improving delivery of content without unreasonably encroaching on the commercial entitlements of the rights holder.” For physical books, especially those that are difficult to obtain, this application of “transformative use” has a direct correlation to the core application of CDL.

Further, this quote interprets another critical technology and fair use case from the U.S. Supreme Court, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), famously called the “Betamax case.” Since its decision in 1984, the Sony ruling helped establish and foster the creation of new and vital technology, from personal computers and iPods to sampling machines and TiVo. This Sony quote was most recently used in another Second Circuit case, Fox News Network, LLC v. TVEyes, , where the same court laid out this particular reading of Sony. So, ReDigi here is drawing upon the precedent of two important transformative fair use cases to make its point. Under this transformative use definition, CDL should be determined to be transformative by the courts, especially if the commercial rights of the rights holder are not unreasonably encroached.

Therefore, while the court found ReDigi’s use to not be transformative, the Second Circuit opened the door for continued technological development, especially for non-commercial transformative uses under the first factor, like CDL. In fact, according to several scholars (Michelle Wu, Kevin Smith, Aaron Perzanowski), this creates a much stronger argument that CDL would be ruled a transformative fair use by a court.

Market Harm

The Second Circuit held that the ReDigi system caused market harm under the fourth factor of the fair use statute. Again, this is not a surprise to the copyright world. The court found that the service provider had no actual control of the objects being sold and that it “made reproductions of Plaintiffs’ works for the purpose of resale in competition with the Plaintiffs’ market for the sale of their sound recordings.”

What does this mean for CDL’s analysis under the fourth factor? Here, again, based on the language of the ReDigi decision, CDL looks pretty different. The ReDigi resales were exact, bit-for-bit replicas of the original sold in direct competition with “new” mp3s online through other marketplaces, such as iTunes. The substitutionary effect was clear, especially since the mp3 format is the operative market experiencing harm. For digitized copies of print books used for CDL, the substitutionary effect is far less clear. With most 20th-century books—the books that we feel are the best candidates for CDL—the market to date has been exclusively print. For those books, some new evidence from the Google Books digitization project suggests that digitization may in fact act as a complementary good, allowing digital discovery to encourage new interest in long-neglected works.

CDL doesn’t compete with a recognized market. When a library legally acquires an item, it has the right, under the first sale doctrine, to continue to use that work unimpeded by any further permission or fees of the copyright holder. CDL’s digitized copy replaces the legitimately acquired copy, not an unpurchased copy in the marketplace. To the extent there is a “market harm,” it’s one that is already built into the transaction and built into copyright law: libraries are already legally permitted to circulate and loan their materials. The CDL “own-to-loan ratio” ensures that the market harm for the digital is the exact same as circulating the original item.

Again, the language of the ReDigi court should be examined closely. The court distinguishes substitutionary markets from those that are complementary and natural extensions of the use inherent with purchasing the original: “to the extent a reproduction was made solely for cloud storage of the user’s music on ReDigi’s server, and not to facilitate resale, the reproduction would likely be fair use just as the copying at issue in Sony was fair use.” Reading this language through the lens of CDL, a modern reproduction service, such as CDL, that further enhances the owner’s use of materials that were purchased under first sale or owned under other authorized means would also qualify as a fair use.

All in all, the ReDigi case most certainly does not settle the CDL issue; if anything, the specific language of the court emphasizes the potential for more non-commercial transformative uses like CDL.

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.

Kyle K. Courtney is Copyright Advisor and Program Manager at Harvard Library’s Office for Scholarly Communication (OSC). Before joining the OSC, Kyle managed the Faculty Research And Scholarly Support Services department at Harvard Law School Library.

Fair Use Week 2019: Day Four With Guest Expert Krista Cox

February 28, 2019 best practices, copyright, fair use Fair Use Week

Celebrating Fair Use in Films

by Krista Cox

This year, Fair Use/Fair Dealing Week immediately follows the Oscars and I definitely have movies on my mind. The Green Book (which I haven’t seen yet) was one of the nominees—and ultimately winner—of the coveted Best Picture Award, but was not without its share of critics. Like other movies dealing with race, critics said that it minimized the true extent of racism and fell into the “White Savior” trope. Just before the Academy Awards, comedian Seth Meyers released a video highlighting these criticisms parodying popular films, including Hidden Figures, The Blind Side, and The Help. Meyer’s White Savior: The Movie Trailer is a fantastic example of parody which, of course, is protected by fair use. Since Kenny Crews covered parody so well in his Day 1 post, I’ll turn to a different aspect of fair use and movies.

Although films obviously create their own creative content, protectable by copyright, often these works incorporate existing content. Depending on the particular use, a filmmaker or production studio may choose to license a particular copyrighted work, but in other instances the film creator has relied on fair use. Here are some examples where fair use and films have gone hand-in-hand—both in the documentary film context as well as feature films and shows.

Documentary filmmakers have relied heavily on the doctrine of fair use, which makes a lot of sense. If documentary filmmakers constantly had to rely on permission and licenses—which would also mean that a rightholder could refuse to grant permission—the result could be that these documentaries lacked proper historical references and context. In a 1996 case, the Southern District of New York refused to grant Turner Broadcasting’s motion for injunctive relief, finding that the clips of a boxing match film involving Muhammad Ali and George Foreman in a documentary about Muhammad Ali was likely a fair use. In Monster Communications, Inc. v. Turner Broadcasting Systems, the court noted that only a small portion of the total film—just 41 seconds—was taken and that the documentary used it for informational purposes.

In another instance of documentary filmmaking, artist Bouchat sued over the use of the Baltimore Ravens’ logo in several videos. While a prior case held that the Baltimore Ravens had infringed the logo design by Bouchat for several years, the use in the films (and historical exhibits) was considered fair. The Fourth Circuit held in Bouchat v. Baltimore Ravens that the videos at issue used the copyrighted material in a transformative way, telling the history of the Baltimore Ravens and the logos were “fleeting” in nature.

And in yet another litigated case over a documentary film, National Center for Jewish Film v. Riverside Films, a district court noted that the use of film clips in Sholem Aleichem: Laughing in Darkness (about the life of a 19^th century Yiddish author) was transformative because it incorporated various clips with scholarly commentary (NB: whether the films had entered the public domain was also questioned, a factor that the court weighed in favor of fair use). Again, because these clips were used in a transformative way that did not supplant the market for the original film, the court held the use to be fair.

Not every fair use ends up being litigated, though. Indeed, most documentary movies probably don’t involve rightsholders claiming copyright infringement in part, thanks to the Documentary Filmmakers’ Statement of Best Practices in Fair Use. That Code of Best Practices, like other Codes (see: Code of Best Practices in Fair Use for Academic and Research Libraries or the Code of Best Practices in Fair Use for Software Preservation—two best practice statements released by ARL), relies on the consensus view of fair use best practices in the community for which it was written. The 2005 Code for Documentary Filmmakers has had a tremendous impact on the community, making it easier for filmmakers to get insurance, avoiding unnecessary licensing costs and leading to the release of films that may never have been finished otherwise. One of the successes is This Film Is Not Yet Rated about the MPAA’s rating system. While the director had initially planned to license the clips used, those licenses would have prevented him from using the material in a way that criticized the entertainment industry.

While the documentary filmmaker community relies heavily on fair use there are a number of examples where fair use was invoked in feature films, as well. For example, the Oscar-winning movie Midnight in Paris, about a screenwriter, played by Owen Wilson, who travels back in time to the 1920s and hangs out with luminaries like Scott Fitzgerald, Ernest Hemingway, Gertrude Stein, Cole Porter, Salvador Dali and others was the subject of a lawsuit.

In one scene, the main character paraphrases a line from novelist William Faulkner’s novel, Requiem for a Nun (the line in question is, “The past is never dead. It’s not even past”) and provided attribution back to Faulkner. Nonetheless, the Faulkner estate sued, claiming that the use of the line infringed copyright. The Northern District Court of Mississippi referenced de minimis usage (discussed a bit more below), but also conducted a full fair use analysis finding that the quote was of “miniscule” importance to Faulkner’s novel as a whole and the use in Midnight in Paris, which amounted to a mere 8 seconds of the feature-film, did not harm Faulkner’s market for his novel. To the contrary, the court questioned: “How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension. The court, in its appreciation for both William Faulkner as well as the homage paid him in Woody Allen’s film, is more likely to suppose that the film indeed helped the plaintiff and the market value of Requiem if it had any effect at all.”

Similarly, in the 2013 film Lovelace, based on the biography of Linda Lovelace, an actress who starred in a famous pornographic film but later became a spokesperson against pornography, the producers re-created three scenes from Deep Throat. The Southern District of New York in Arrow Productions v. The Weinstein Company ruled the use transformative because it provided “new, critical perspective” on Lovelace and would not supplant the market for the pornographic film.

Courts have considered and upheld fair uses in the film context, but some have found in favor of the defendant without even needing to go through the four fair use factors. Instead, for various uses of copyrighted works in TV shows and feature films, some courts have found in favor of the use on the basis of fair use’s cousin, de minimis use. In these de minimis use cases, courts have determined that the amount used was so small and trivial, the court need not engage in a full fair use analysis. These cases have included, for example, the 2000 rom-com What Women Want, featuring Mel Gibson (involving the depiction of a pinball machine in the background); the 1995 crime thriller SE7EN, featuring Brad Pitt and Morgan Freeman (use of copyrighted photos appeared fleetingly and out of focus); and HBO’s TV series Vinyl which was created by Mick Jagger and Martin Scorsese about a record executive in the 1970s (fleeting use of a dumpster tagged with graffiti in the background of a single scene).

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

Fair Use Week 2019: Day Three With Guest Expert Dr. Nora Slonimsky

February 27, 2019February 27, 2019 copyright, fair use copyright, fair use, Fair Use Week, legal history

The Public Figure Exception(s): Finding Fair Use in the Vastness of Early American IP

Originally published on Uncommon Sense, a publication of the Omohundro Institute. This post accompanies “Copyright and Fair Use in Early America,” episode 227 of Ben Franklin’s World. You can find supplementary materials for the episode on the OI Reader app, available through iTunes or Google Play.

by Nora Slonimsky

Whether you are Gigi Hadid or Jedidiah Morse, your copyright is often more than just a proprietary claim. Public figures have long been bound together in the public eye with perception and re-use of their works, whether people share photographs of you walking down the street or a map produced more than two hundred years before GPS. In an era of Twitter, paparazzi, and a rapidly turning over news cycle, deciding what information the public needs to make informed decisions is an increasingly fraught challenge—but not a new one. As early national writers sought to shape American media in the wake of independence, they confronted what it meant to be a public figure and what value that role had in the creation of new forms of expression.

A legal doctrine highlighted this week through collaboration among libraries, institutions of higher education, and professional research organizations, fair use emerged as a formalized legal framework in the nineteenth century with infamous competing biographies of George Washington and the 1841 case of Folsom v. Marsh, as Kyle K. Courtney and Liz Covart discuss in the #FairUseWeek episode of Ben Franklin’s World. The concept is intended to protect the right to circulate information that would otherwise be covered by copyright.

Fair use doctrine intersects with similar principles around the globe, but several of its particular qualities were formulated in the United States and have roots that date to the beginning of the nation’s history. One root involves a proposed aspect of fair use called the “public figure exception.” As described in the 1985 case of Harper & Row v. The Nation, the public figure exception limits an author’s or proprietor’s right to be paid for their expression when the work contains “matters of high public concern.”[i] A work “containing matters of high public concern” can often be intertwined with the public role of the author. As a consequence, the public figure exception introduces the reputation or image of the author as a consideration in the balance between the individual claims of artists and innovators over their creative labor and the broad social need for the learning and engagement that comes from expression.

Turning to early America can provide a deeper understanding of why. When the phrase “public figure exception” appears today, it is frequently in the context of defamation. In my first book project, I look closely at the relationship between libel and copyright, and how they function in the construction authorial, as well as state, authority. To write and publish a criticism of a public figure was still considered seditious libel in the late eighteenth century. The logic that something could not be libelous if it wasn’t true was not formalized in United States law until 1805, and even then, was determined by state, and not federal, law.[ii] The truth defense evolved over the next century and a half, but in the early national period, the standing of a writer – through their racial, religious, ethnic or gender identity, political affiliation, wealth, education, networks, regional ties – determined the authenticity of their expression alongside any innovative qualities.

It is more Jedidiah Morse than Gigi Hadid then who ties together these complex threads of copyright, fair use, libel, and public opinion. Although media in the late eighteenth century was indeed very social, the media were quite different. Morse might not have been the most adept at the eighteenth-century equivalents of Twitter, like pamphlets and broadsides, but he was extremely skilled at social networking. For the “father of American geography,” Morse shrewdly marketed his nationalistic series of geography books, from 1784’s Geography Made Easy to the 1789 The American Geography to The American Universal Geography, which appeared in several editions in the 1790s and early 1800s. As a strong supporter of the Federalist coalition who consistently cultivated an image of expertise in topography, environmental science, history, and political commentary, Morse was extremely close with other leading figures in the knowledge industry like Noah Webster and employed Alexander Hamilton and James Kent as his copyright lawyers in what would be the first known federal copyright case, Morse v. Reid, in 1798.

Despite, or perhaps because he was such a staunch advocate for copyright, Morse relied heavily on what we would now consider fair use. Writing that he often “aimed at utility rather than originality, and of course, when he has met with publications suited to his purpose, has made free use of them,” Morse added, without irony, that he “frequently used the words as well as the ideas of [other] writers” without telling the reader.[iii] Morse did not see any issue with compiling the work of other writers and using it in his own. Morse conducted his own research and wrote much of The American Geography on his own, but to bolster his credibility, “maintained extensive correspondence with men of Science,” and “in every instance, has endeavored to derive his information from the most authentic sources.”[iv] In other words, he relied on the expertise of others, and in turn, shared their findings while expanding his own. So if one of these experts in turn relied upon Morse’s work for their own, it does not appear that he had much of a problem with it.

Where Morse did have a problem, however, was when someone whom Morse did not deem a valid authority did so. Even worse, when the “pirate” in question was a Baptist minister held in Newgate Prison for sermons in favor of the French Revolution, the Congregationalist, pro-British Morse was aghast. William Winterbotham was in reputation everything Morse feared. He published An Historical, Geographical, Commercial and Philosophical View of the United States of America and of the European Settlements in the West Indies in London in 1795; it was reprinted in New York in 1796.

Only then did Morse have any legal recourse, as international copyright did not exist. Alerted to Winterbotham’s book by Morse’s London publisher, John Stockdale, Morse immediately recruited Hamilton as his attorney, writing that “After going over the Work with care & a great deal of labour, I have estimated that nearly a third part of the whole of Winterbothams work, has been copied verbatim from my work, or about 600 pages out of about 2000.”[v] By current fair use standards, this was a high percentage, but what seemed to truly incense Morse was not the quantity, but rather how Winterbotham had “artfully, in many instances … transposed paragraphs & sentences, apparently with a view to deceive the reader.”[vi] It was evident, according to Morse and his legal team, that Winterbotham had copied more of Morse’s work than was appropriate to demonstrate expertise or “authentic sources.” As you can see in the images to the left, while maps were not a source of dispute for Morse, there was clear reliance on The American Geography (top) in the New York edition of An Historical, Geographical, Commercial and Philosophical View of the United States of America and of the European Settlements in the West Indies made by John Reid (bottom).

Winterbotham did not criticize Morse. In fact, when Winterbotham mentioned him at all, it was to praise his status as a geographer and writer. Still, because of Winterbotham’s politics and precarious position, Morse remained worried about his authority as a public figure. This was both a commercial and credit-based fear. If readers began to associate Morse and The American Geography series with the work of Winterbotham, it could encroach on Morse’s market share, but also influence American readers about Morse’s message and his political standing within the Federalist network. Winterbotham’s piracy, whether rational or irrational, reasonable or unreasonable, functioned to Morse like a libel.

Whether the people involved are presidents like George Washington or Gerald Ford, or well-known authors like Morse, the public figure exception is based on an understanding of fair use in which the public need for the expression contained within a writer’s work is pivotal to making informed choices. If the author is an authority in a given subject, especially one that has obvious relevance for pressing issues, financial barriers to that material can have drastic consequences. And yet writers, like all workers, need to make a living. Writing nearly two hundred years before Harper & Row v. The Nation, and fifty years before Folsom v. Marsh, Morse was not articulating clear legal doctrine by any means, but rather musing on exceptions to exceptions. The copyright consciousness in which Morse wrote and published was one in which he could both reap the benefits of fair use and complain of piracy at the same time, in large part because both relied upon his carefully crafted public persona as a geographic expert. When looking at media, authority, and access through the lens of fair use, the early history of copyright is thus as much about public opinion as it is property.

Nora Slonimsky works on the history of copyright and its relationship with media regulation, state formation, and knowledge production in the long eighteenth century. Dr. Slonimsky is the Gardiner Assistant Professor of History at Iona College and Director of the Institute for Thomas Paine Studies (ITPS). This post also appears at the Copyright At Harvard Library blog.

_______

[i] Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985): 3.

[ii] This was in the case of People v. Croswell (1804), in which Alexander Hamilton argued the truth defense. It was written into law by New York State the following year.

[iii] Jedidiah Morse, The American Geography; Or, A View of the Present Situation of the United States of America Containing – Astronomical Geography, Geographical Definitions, Discovery, and General Descriptions of America and the United States – of their Boundaries, Mountains, Lakes, Bays and Rivers, Natural History, Production, Population, Government, Agriculture, Commerce, Manufactures, and History –a Concise Account of the War, and of the Important Events with have Succeeded with a Particular Description of Kentucky, the Western Territory and Vermont – of their Extent, Civil Divisions, Chief Towns, Climates, Soils, Terrain, Character, Constitutional, Courts of Justice, Colleges, Academies, Religion, Islands, Indian, Literary and Humane Societies, Springs, Curiosities, Histories &c to Which is Added an Abridgement of the Geography of British, Spanish, French and Dutch Dominions in America and the West Indies – of Europe, Asia and Africa Illustrated with Two Sheet Maps – One of the Southern, the Other of the Northern States – From the Latest surveyors. Shepard Kollock: Elizabeth, New Jersey, 1789: vi-vii.

[iv] Morse, The American Geography, iv.

[v] Jedidiah Morse, “Letter from Jedidiah Morse to James Kent, January 21^st, 1796,” Box Two, Morse Family Papers, Sterling Memorial Library, Yale University.

[vi] Morse, “Letter from Jedidiah Morse to James Kent.

Fair Use Week 2019: Day Two With Guest Expert Brandon Butler

February 26, 2019 best practices, copyright, fair use Fair Use Week

Some Software-informed Thoughts on Fair Use and Licensing for Fair Use Week

by Brandon Butler

I thought I knew a fair bit about fair use—then I started doing more work with software. That’s when I realized I hadn’t thought quite enough about fair use and licenses. This fair use week, I want to share a little bit of what I’ve been thinking. For too long my quick-and-dirty rule of thumb for licensed content was that fair use would be of little or no value for works covered by a license. That’s not an accurate picture, however, and it does a disservice to fair use!

Non-overlapping magisteria

I want to start with what I now see as the right way to think about these two issues. To borrow a fancy-sounding term from biologist Stephen Jay Gould, I conceptualize licenses and fair use as ‘non-overlapping magisteria‘ — separate and compatible sources of authority for anyone in need of guidance about when they can use in-copyright material. Each source of authority tells us something important, and the two can co-exist (and give us meaningful, useful guidance) even when they are in apparent conflict.

Licenses tell us the boundaries of the permission granted by the copyright holder. When I read a license, I learn what the license permits and what it does not permit. The copyright holder’s power to license her works is a very valuable asset. Licenses often permit uses that far exceed anything that could be done under ordinary copyright law—installation of the same software on multiple machines, simultaneous access to the same digital book by multiple users, or access by one user across multiple devices, and so on. But licenses typically include limits—”for personal use only,” “non-transferable,” and the like. These tell you where the permission granted in the license ends.

Fair use is a doctrine in copyright law that allows certain uses of in-copyright works regardless of permission. To put it another way, fair use is permission granted by law. Users can promise not to exercise their fair use rights, but no copyright holder can unilaterally take away the permission given by law.

It follows that user rights like fair use apply, by definition, precisely where permission has not been granted. A license that says “for personal use only” tells you the limits of the license. It doesn’t tell you the limits of fair use.

Which is not to say that fair use always picks up where licenses leave off. To the contrary, we would expect that in most ordinary cases fair use will not permit licensees to exceed the scope of a license. Limitations in licenses are usually put in place as a way of protecting (or segmenting) a market. Courts would be loathe to find fair use if your activity directly undermines ordinary market exploitation. However, when a license no longer supports an active market, and adherence to a license would frustrate core purposes of copyright (like scholarship or teaching), fair use can apply.

Unless They Do Overlap

There is one circumstance where license terms and fair use can come into direct conflict: where a user promises explicitly not to engage in activity protected by fair use (to create a parody from a licensed work, for example). Only licenses that not only limit the scope of permission, but also secure from the user a promise not to do certain things, can cause this conflict.

In these cases, though, what is the consequence for the licensee who breaks her promise? I’d suggest that if such uses are still fair, then failure to comply with the license can’t make you a copyright infringer. You may be in breach of the agreement, and the licensor could sue for damages due to the breach, but the extraordinary statutory damages (infamously up to $150k per work for willful infringement) associated with copyrights are off the table. This should lower the stakes considerably for folks considering fair use.

One last thing you can consider if you’re concerned about anti-fair use language in a license agreement: a contract only binds the parties to the agreement, not third parties. Someone who comes to possess a digital work without ever affirmatively agreeing to license terms (e.g., a second-hand purchaser who never sees a shrink-wrap license or clicks on a pop-up “I agree” button) is not likely to be bound by those terms. They would also not be able to benefit from the license, but that’s where fair use would have a role to play.

Fair Use Week 2019: Day One With Guest Expert Kenneth Crews

February 25, 2019 Uncategorized

We are delighted to kick off the 6th Annual Fair Use Week with a guest post by the worldwide copyright expert, Dr. Kenneth Crews as he muses over the 25th Anniversary of one of the most critical of all fair use cases, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), the 2 Live Crew Case!

Fair Use and the Growth of Creativity: Celebrating a Quarter Century

by Kenneth D. Crews

Dust off the CD player and get in the mood for Boyz II Men and Ace of Base. We’re gonna party like it’s 1994! In just several days, on March 7 next week to be exact, we can celebrate the 25th anniversary of the Supreme Court’s ruling in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). You know that a case about early rock music by a guy named Skyywalker has got to be good. The Campbell decision is in fact the most important fair use court ruling – ever.

That’s right. Campbell is the most important fair use ruling in the history of the known universe. It has been cited in nearly 700 subsequent decisions from U.S. courts and has been the springboard thousands of articles and studies. The case is referenced with joy by copyright professionals around the world who yearn for the clear rights we now have in the U.S. to make the critical and even despicable parodies, as the Supreme Court unequivocally sanctioned.

Skewering and criticizing are among the most American pursuits – they are extensions of our beloved free speech traditions – and the Court preserved the spirit of that Weltanschauung in the framework of fair use and copyright law. The task for the Supreme Court was to discern and articulate when fair use would allow the creation of a parody without infringing the copyright in the underlying work. The subject matter in the Campbell case was the pop song, Oh, Pretty Woman, made famous in 1964 by the singer and songwriter, Roy Orbison.

2LiveCrew1

A parody, unlike a satire, necessarily makes use of a specific original work. A satire might use a song or other existing work to critique or mock something else. Think of Weird Al Yankovic being generally gluttonous to the tune of Beat It. Many other songs could have been the vehicle for pie hole humor. By contrast, a parody comments on the underlying work itself; a parody must use at least a bit of the work it is seeking to attack.

2LiveCrew2

In the Campbell case, the rap group 2 Live Crew rewrote the original Orbison opus in a quest to criticize and comment on its sentiment of a simple and perhaps misguided romantic episode. Justice David Souter, one of the most well-read Supreme Court jurists in recent decades, recast the legal analysis with grace of a literary analysis and the comprehension of a constitutional scholar. Souter recognized through the unanimous decision that fair use is essential to a functional copyright law, to critical reflection, and to the inspiration of new creativity:

[T]he goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright. . . .

The Court gave a strong endorsement to the policies behind the law, but the most enduring legacy of Campbell has been its restructuring of the legal principles of fair use. The Supreme Court had previously rendered fair use decisions about quoting from a presidential autobiography and recording a TV broadcast at home. While the Court based its decisions on the four factors in the fair use statute, the analysis was often muddled and supported by interpretative principles that tended to ossify fair use at a time when the need for flexibility was on the rise.

Flexibility in fair use allows the law to apply to diverse works for a widening range of new uses. The Supreme Court in Campbell abandoned earlier edicts against commercial uses, and even against using the “heart” of a work. The Court turned away from declaring market harm as the most important factor, and it elevated the notion of “transformative” uses. Under Campbell, all four factors of fair use are to be evaluated together, and each is weighted according to the strength of the evidence.

Justice Souter vividly understood that parody is a form of criticism, and society is best served through open commentary on music, literature, art, politics, and more. The subject of Campbell may have been a chipper ditty with a virtuous sentiment and a compelling bass riff. Through the last 25 years, however, the real subject of Campbell has become clear. The more flexible conception of fair use that Campbell espouses is not only about using existing works – it is about creating an entire new breed of works.

Consider again life in 1994. The Simpsons was in its fifth season, and parody recordings had been the oeuvre of Allan Sherman and Stan Freberg. But by coming in 1994, the Campbell decision inadvertently became a turning point in relationship of copyright to technological change. The internet was in its formative years, YouTube was a decade from inception, and the more aggressive parodies of South Park and The Daily Show were mere brainstorms. Campbell opened the way for fuller exploitation of the humor, taste, media, political intrigue, cable networks, worldwide connections, and digital tools that were about to revolutionize our lives.

The flexibility that Campbell brought to fair use has allowed this social and intellectual transformation to prosper. It also fostered the creativity of appropriation art, the trenchant dissection of political news, and the digitization and analysis of millions of books and other copyrighted works. The Campbell ruling brought new meaning to fair use exactly when technology was widening possibilities, and when our social and political climate demanded a critical examination – and even a stinging parody. The Supreme Court showed tremendous foresight in 1994 and gave us something to truly celebrate a quarter century later.

Kenneth D. Crews is an attorney and international copyright consultant with Gipson Hoffman & Pancione in Los Angeles, California. He was previously on the faculty and founding director of copyright offices at Columbia University and Indiana University, and he has been a consultant for the World Intellectual Property Organization since 2007. Dr. Crews is the author of Copyright Law for Librarians and Educators, forthcoming soon in a 4th edition.

Fair Use Week 2018: Day Five With Guest Expert Carla Myers

Fair Use and Course Reserves: Fact and Fiction

By Carla S. Myers

Almost ten years ago I accepted a position as the course reserve manager for Bierce Library at the University of Akron. In this position I oversaw both the print and electronic reserve services, and early on I was charged by my supervisors to learn as much as I could about copyright to help ensure that the library’s reserve practices fell within the scope of the law. As I began researching the law I was a bit surprised by how much information I found on the application of fair use for reserve services. Unfortunately, it took me a while to realize that much of the information available online on this topic is deficient and propagating many myths and misconceptions regarding fair use. In turn, this flawed information was limiting the ways in which academic libraries provided reserve services to our campus communities. In this post, I’d like to address a few of the fair use misconceptions hear most often regarding reserve services.

Taking a Look at the Law

To identify the commons misconceptions related to fair use and course reserves it’s best to start with an understanding of the law itself. The fair use statute, which is found in Section 107 of U.S. Copyright Law, reads:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

the effect of the use upon the potential market for or value of the copyrighted work.

Common Misconceptions

Misconception #1: Fair use has specific limits. For example, fair use is limited to one chapter from a book, one article from a newspaper or periodical, or a single photo, chart, or graph from a book, periodical, or newspaper.

This misconception is tied to the third factor of fair use and, as you’ll see in the statute, there are no such limits found in Section 107. To determine how much of a work can be reused under fair use, it is helpful to know the caselaw of the statute. Examining the U.S. Copyright Office’s Fair Use Index, you’ll find cases in which the reuse of 100% of a work was considered fair use, and other cases in which reusing small portions of works were found not to be fair use. When faculty hold up a book and ask me “How much of this can be scanned and placed on electronic reserve?” I ask them to tell me how much of the work they need to use for course instruction and help them consider how this amount balances with the other three factors. When making a fair use determination it’s important to remember that no one factor on its own determines fair use, rather they all need to be considered in relation to each other.

Misconception #2: Fair use can be considered for the first semester of use only. Any subsequent use of a copyrighted work for reserve requires that you pay a license fee for the use.

There are no term limits found in the fair use statute. When a faculty member who has placed a work on print or electronic reserve under the auspices of fair use asks me about reusing the work in subsequent semesters, I encourage them to work through the four factors of fair use again to determine if any of the circumstances of their use has changed. If they have, and if their use of the work may no longer fall within the scope of fair use, we consider other options that may be available to them for making the work acessible to students. This could include the utilization of other exceptions found in the law, such as the Technology, Education and Copyright Harmonization Act (TEACH Act) found in Section 110(2) of US copyright law, linking to a copy of the work made freely and legally available online, seeking permission to reuse the work, or obtaining a license to reuse the work.

Misconception #3. Fair use can only be used to make “x” number of works available to students through reserve, and after you hit that number you must obtain permission or a license to share other works with students.

I have heard many variations of this particular misconception, including:

Fair use is sharing up to five photographs.
Fair use is sharing up to nine journal articles per class.
Fair use is sharing up to two chapters/readings from a particular author.

These limits are also not found in the fair use statute. Fair use can be utilized as many times as needed for each individual course, each semester. Just make sure you’re making fair use determinations on a case-by-case basis for each work being placed on reserve. The American Library Association’s Fair Use Evaluator can help you in making these determinations.

These misconceptions (and many others) arise from the Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals (also known as the “Classroom Photocopying Guidelines”) that ware put forward as part of a House Report in 1976.

It is important for librarians to understand that these Guidelines hold no force of law, nor does following them provide any type of safe harbor against claims of copyright infringement. This fact has been illustrated in Cambridge Univ. Press v. Becker (the Georgia State e-Reserves Lawsuit)” in which three academic publishers, Oxford University Press, Cambridge University Press, and Sage Publishing, filed suit against officers of Georgia State University over the copying and distribution of copyrighted works through the library’s electronic reserve system. In her initial opinion on the case, Judge Orinda Evans of the U.S. District Court for the Northern District of Georgia stated:

[T]he Guidelines establish numerical caps on how many words a teacher may copy and still stay within the safe harbor. This brightline restriction stands in contrast to the statutory scheme described in § 107, which codified a multi-factorial analysis in which no factor is dispositive. Thus, the Guidelines’ absolute cap, which would preclude a use from falling within the safe harbor solely on the basis of the number of words copied, is not compatible with the language and intent of § 107.

The Eleventh Circuit Court of Appeals echoed these sentiments. The opinion, written by Judges Gerald Bard Tjoflat and Stanley Marcus (with a concurrence by Judge C. Roger Vinson) states:

We note that the Classroom Guidelines, although part of the legislative history of the Copyright Act, do not carry force of law. In any case, to treat the Classroom Guidelines as indicative of what is allowable [under fair use] would be to create the type of “hard evidentiary presumption” that the Supreme Court has cautioned against…so we must not give undue weight to the amounts of copying set forth in the Classroom Guidelines.

The case is still under appeal, and you can learn more about it and follow new developments in this LibGuide hosted on the Georgia State University College of Law Library’s website. I also encourage you to read The Law of Fair Use and the Illusion of Fair-Use Guidelines, authored by Dr. Kenneth D. Crews, an attorney, author, professor, and international copyright consultant, as it will help you better understand how many of the various “fair use guidelines” were developed and the ways in which they misconstrue the law.

Managing Course Reserve Copyright Issues

When talking with faculty and librarians about copyright, I also always encourage them to remember our shared mission and not let fear of being sued prevent them from utilizing the exceptions found in the law when looking to connect students with educational resources or provide new services to them. This does not mean that we should ignore the law in its entirety or assume that because we have an educational purpose we are free to reuse works however we want. Rather, it means should consider what options the law allows and work within the scope of that law to support the educational mission of our institution. There are also options aside from the exceptions found in US copyright law that are available to use when providing course reserve services. This includes linking to works available in the library’s online collections or made legally and freely available online, using Creative Commons and Open Access works within the scope of their license terms, and obtaining permission to reuse works from the rightsholders. If these options do not work, the library can then investigate acquiring a license to make the work available through reserve.

I’m excited to announce that I have a forthcoming book on this very topic, available later this year: Copyright and Course Reserves: Legal Issues and Best Practices for Academic Libraries, published by Libraries Unlimited (978-1-4408-6203-8). In the meantime please feel free to reach out to me with your questions regarding copyright and course reserves or seek additional information in the many excellent sources I’ve cited here.

Carla Myers is Assistant Professor and Coordinator of Scholarly Communications for the Miami University Libraries. Her professional presentations and publications focus on fair use, copyright in the classroom, and library copyright issues. She has a B.S. in Psychology from the University of Akron and a Masters in Library and Information Science from Kent State University.

Fair Use Week 2018: Day Four With Guest Expert Brandon Butler

How Is an App Like a Player Piano? And Does That Help the Fair Use Case for Software Preservation?

by Brandon Butler

I’ve been working a lot with software preservation folks, lately, and trying to think about the kinds of challenges they face due to copyright. I’m hopeful the community can find fair use solutions to at least some of those challenges, but in the meantime I’ve been struck by one unique aspect of software from a copyright perspective: in many ways it’s more like a player piano than a piano roll. Courts have taken this functional aspect of software into account in many contexts, and I’m hopeful that this will make it a good candidate for fair use arguments in the preservation context.

Why am I talking about player pianos? Well, there’s a great case that is taught fairly early in most copyright courses, White-Smith v. Apollo, a 1908 case that deals with the copyright consequences of the then-new player piano technology. (New tech is often a challenge to copyright, which is in many important ways a regime of technology regulation, focused on copying technologies. Every time the law seems to have tamed a given technological paradigm, a shift comes along and unsettles things!) The question for the court was whether the piano rolls that allowed a player piano to play songs were “copies” of protected musical works for purposes of copyright law. If they were, the music publishing companies’ permission would be needed before manufacturing new rolls that encoded songs they control.

As the Supreme Court noted in its opinion, “the question involved in the use of such rolls is one of very considerable importance, involving large property interests, and closely touching the rights of composers and music publishers.” The publishers brought suit.

But the court rejected the publishers’ argument that “Music…is intended for the ear as writing is for the eye, and that it is the intention of the copyright act to prevent the multiplication of every means of reproducing the music of the composer to the ear.” Instead, the court sided with the piano roll companies—a “copy” of a musical work must be “a written or printed record of it in intelligible notation.” The copyright in a musical work is, the court says, just the right to reproduce musical notation in print. Since a piano roll looks like gibberish to the human eye, isn’t really “printed” at all, and only yields music when plugged into a compatible piano, it’s not a copy. The publishers were out of luck.

The court ends its opinion with a common judicial admonishment: if you don’t like our ruling, take it up with congress.

“It may be true that the use of these perforated rolls, in the absence of statutory protection, enables the manufacturers thereof to enjoy the use of musical compositions for which they pay no value. But such considerations properly address themselves to the legislative and not to the judicial branch of the Government.”

The music publishers took this advice to heart, and the results of their legislative advocacy are found in Section 101 of the Copyright Act of 1976, which defines “copies” as “material objects…in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

This seems intuitive to us, now—almost every “copy” we care about in the digital era requires “the aid of a machine” to be rendered perceptible. You can’t stare at a DVD as a way to watch the movie stored on it, nor can you hear the music stored on a hard drive by holding the drive up to your ear. In the analog era, a copy spoke directly to us, as long as we understood the language in which it was written (including musical notation); nowadays, the vast majority of copies are written in a language meant only for computers.

So far, so good. A piano roll is now a “copy” of a musical work, and the music publisher/songwriter should have a say in making, distributing, etc. of such copies. A copy that depends on a machine to be perceptible is still a copy. But what about the machine-the piano or the DVD player? Should copyright also apply to it?

In copyright parlance, the machine that makes a work perceptible should typically be considered a “useful object,” excluded from copyright protection (17 USC § 102). If you would like a legal monopoly on something useful, we have another kind of intellectual property for you—patent law. Design a new piano, get a patent, license others to make and sell it, go on Shark Tank and sell shares to Mark Cuban, etc. Patents can be expensive to get (especially software-related ones), and their term is much shorter than copyright (more than 130 years shorter, in fact), reflecting the public policy favoring wide public access to useful discoveries.

But it’s clear from our interviews with software preservation professionals that from their perspective, lots of software is in the same relationship to digital files as the player piano is to piano rolls. They call this “software dependency”—files created in a certain software environment depend on that software to be perceived. CAD files, word processing documents, spreadsheets, all look like gibberish, or do not reveal their full contents, unless rendered(PDF) with the appropriate software (and hardware, or emulator, etc. etc.).

For archives and special collections containing born-digital documents (which of course more and more of our documents will be over the next several decades), access to our collections will increasingly require access to legacy software. Trying to read a manuscript, an email, a digital sketch, or financial data from the files alone makes about as much sense as holding a piano roll up to your ear. It turns out, software is very useful, even necessary, for preservation and long-term access to digital materials. This is one reason for the sense of urgency in the software preservation community around collective action and shared resources—no archive can hope to assemble and maintain every piece of software they might need to read the diverse file formats in their collections.

I’m hardly the first person to observe that software is useful, and that this makes copyright an awkward fit as a legal regime for regulating its use (See, e.g., Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 344–46 (1970)). Congress recognized this fact in Section 102(b) of the Copyright Act of 1976, which declares that copyright protection does not extend to any “idea, procedure, process, system, method of operation, concept, principle, or discovery” embodied in a protected work. Courts have been sensitive to this fact, as well. They have only granted copyright protection for aspects of software not dictated by function or interoperability (Comput. Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 703– 05 (2d Cir. 1992)), and they’ve applied fair use in cases where copying and reverse engineering of protected software was necessary for interoperability (Sony Computer Entm’t, Inc. v. Connectix Corp., 203 F.3d 596, 602–03 (9th Cir. 2000); Sega v. Accolade, 977 F.2d 1510, 1524–27 (9th Cir. 1992)). The policy arguments favoring narrow protection and broader availability of software under fair use in light of its useful character should apply with equal strength to uses of software for archival access and preservation.

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

Copyright at Harvard Library

Brought to you by Kyle K. Courtney, Copyright Advisor, Harvard Library, Harvard University

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Fair Use and Course Reserves: Fact and Fiction

By Carla S. Myers

Taking a Look at the Law

Common Misconceptions

Misconception #1: Fair use has specific limits. For example, fair use is limited to one chapter from a book, one article from a newspaper or periodical, or a single photo, chart, or graph from a book, periodical, or newspaper.

Misconception #2: Fair use can be considered for the first semester of use only. Any subsequent use of a copyrighted work for reserve requires that you pay a license fee for the use.

Misconception #3. Fair use can only be used to make “x” number of works available to students through reserve, and after you hit that number you must obtain permission or a license to share other works with students.

Fair Use Week 2018: Day Four With Guest Expert Brandon Butler

How Is an App Like a Player Piano? And Does That Help the Fair Use Case for Software Preservation?