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

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 Three With Guest Expert Dr. Nora Slonimsky

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.

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[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 21st, 1796,” Box Two, Morse Family Papers, Sterling Memorial Library, Yale University.

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

Fair Use Week 2015: Day Four with guest expert Niva Elkin-Koren

For our third entry this week, we are excited to feature Prof. Niva Elkin-Koren, Faculty of Law at the University of Haifa, Israel and founding director of the Haifa Center for Law & Technology.

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Fair Use: Rights Matter

 

Fair use is often celebrated as essential for access to knowledge (A2K), and the wide adoption of fair use is often viewed as key to its success. The flexibility rendered by this open norm has certainly enabled courts to adjust exceptions and limitations in a rapidly changing world. Many countries worldwide are seriously considering adapting more flexible norms to address these challenges. However, fair use in and of itself might be insufficient to counterbalance the emerging challenges to open access. We have reached a point where many of the threats to access we face nowadays lie beyond copyright. We might be entering a phase where copyright is taking a back seat, making room for more powerful mechanisms which govern access to cultural works. In light of these changes, a more comprehensive approach to user rights might be necessary.

New challenges to A2K

The rise of cloud computing and mobile Internet has transformed the delivery of content from the sale of copies to the provision of services. Rather than buying books, CDs and DVDs, we are now offered access to eBooks, all-you-can-eat online music subscription and movie streaming services for a monthly fee. The shift from copies to services places control over content in the hands of the service providers. Users lack perpetual control over physical copies. Restrictions on copying, playing and re-mix are set by design, and overall, access to content may expire at any time. A striking example of the lack of user control over a purchased digital copy is the Orwellian 1984 saga in which Amazon.com remotely removed from Kindle purchased copies of George Orwell’s book 1984 due to some copyright concerns. Following a public outcry, Amazon.com apologized and later settled a class action brought against it for violating its terms of service by its remote deletion.

The legal restrictions set by copyright are now supplemented by contractual restriction and control by design. The scope of permissible uses in content is increasingly set by Online Intermediaries Terms of Use (ToU) and End User License Agreements (EULAs). Contractual terms may restrict the right to resell digital copies, limit the right of perpetual use, set limits on educational use, or prohibit reverse engineering, remix, and e-lending by libraries.

Much of online copyright nowadays is enforced by online intermediaries and embedded in their design. Algorithms filter, block, and disable access to allegedly infringing materials. Ubiquitous practices of monitoring and automated filtering by online platforms create further layers of protection which may threaten access to knowledge. Some platforms (such as YouTube) have even turned this into a business model (like Content ID). The choices made by the online intermediaries on filtering, removing, disabling uses or blocking access to online materials lack any transparency and legal oversight. There are numerous anecdotal examples of erroneous removals and blocking access to non-infringing materials (false positive), but its overall scope remains unknown. Clearly however, the removal of non-infringing materials, which might be legitimately used without needing a license, threatens access to knowledge. The robustness of algorithmic filtering, removal and blocking practices is effectively changing copyright default. If copyrighted materials were once available, unless proven infringing, materials detected by the algorithm are now unavailable unless explicitly authorized by the copyright owner.

Overall, these developments in law, design and business models limit the freedom of users to access, experience, transform and dispose of copyrighted (and non-copyrighted) materials.

Is fair use sufficient?

The fencing of cultural works by licenses and algorithms call for a different approach to addressing the freedom of access protected under fair use.

Some courts have a taken a rather narrow approach to fair use, viewing it merely as a legal defense. Fair use as a “defense” authorizes the court to avoid rigid application of copyright exclusive rights, and to hold an otherwise infringing use as non-infringing in particular circumstances. Consequently, fair use may only come into play when a copyright infringement claim is made by copyright owners. Yet, in the emerging environment of licenses and algorithms, copyright is neither the problem nor the solution. Fair use as a legal defense is mostly irrelevant to many of these legal frameworks, and consequently the Legal Defense Approach to fair use might be insufficient to counterbalance these developments.

Others perceive fair use not simply as a legal defense but as an integral mechanism set forth by copyright law to achieve its goals. From this perspective, fair use doctrine critically limits the scope of the monopoly granted to authors under copyright law. It is set to identify the circumstances where unlicensed use should be permissible in order to promote the goals that copyright law seeks to achieve. Consequently, uses that fall under fair use are not simply non-infringing but in fact are desirable, therefore permissible. The right to perform these uses without a license derives from copyright intended goals.

A User Rights Approach to fair use presumes that incentives to authors provide only one means of promoting creativity, while other, equally important mechanisms focus on securing adequate access rights for users. Put differently, the rights of authors (for incentives or just reward) and the rights of users to use creative works (e.g., read, learn, disseminate, re-use and transform) are different mechanisms for promoting copyright goals.

User rights: a global view

User rights were first explicitly recognized by the Supreme Court of Canada in 2004, in the landmark case of CCH Canadian Limited. v. Law Society of Upper Canada. This approach was recentlyreaffirmed in a series of copyright decisions. The Canadian Supreme Court, citing with approval Professor David Vaver, explained: “Users’ rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that benefits remedial legislation”.

In Israel, which only recently introduced fair use into the statute with the 2007 Copyright Act, the issue of user rights has already been tackled by the Israeli Supreme Court. Initially, in 2012 the Court explicitly rejected the position that fair use is a user right. The Football Association Premier League Ltd v Anonymous (2012) involved a petition to unmask the identity of an anonymous user who streamed infringing broadcasts of football matches owned by the English Premier League. Even though the petition was dismissed on procedural grounds, the Court held that streaming constituted copyright infringement and fair use did not apply. In rejecting the User Rights Approach the Court explained that fair use should be understood as simply a legal defense.

Soon after, in Telran Ltd. v Charlton Communications (2013), the Court questioned this approach. The case involved the legality of marketing decoding cards which enabled Israeli customers to decode the encoded broadcasts of the World Cup games, which were transmitted by foreign channels via satellites. The Court held that merely distributing the decoding cards did not amount to a copyright infringement, nor was it a contributory infringement, since simply watching copyrighted materials did not constitute copyright infringement. The Court explicitly rejected the fair use Defense Approach of the Premier League Court, noting that fair use is not merely a technical defense to copyright infringement but a permissible use. A few weeks later, in the case of Safecom v Raviv (2013), the Supreme Court reaffirmed this approach in a case addressing the copying of drawings of a functional electric device in a patent application submitted to the USPTO. The Court cited with agreement the user rights approach upheld in Telran and suggested that the time was ripe for holding an extended judicial panel on that matter.

These recent developments in Canada and Israel suggest that the legal status of fair use might have far-reaching consequences. Canadian copyright law includes fair dealing provisions, which are far more limited than fair use. Under fair dealing the use not only has to be proven fair, but must also fall under one of the strictly defined purposes enumerated by law. The Supreme Court of Canada held that since fair dealing was a user right “it must not be interpreted restrictively.” Accordingly, the Court broadly interpreted research, under fair dealing, as also covering sampling during consumer research, and private study as also including copying by teachers.

The Israeli adjudication on user rights suggests that simply introducing into the statute a fair use provision is not the final end of copyright reform. It is rather the beginning of an ongoing struggle to safeguard unlicensed use that is deemed necessary to the very creativity which copyright law is designed to foster.

Future challenges

One of the greatest challenges to access to knowledge in the 21st century is private ordering. Terms of use, restrictions by design and robust algorithmic enforcement threaten to wipe out many of the safeguards of access created by fair use.

The User Rights Approach to fair use could help set limits on private ordering. Under this approach, limits on fair use fall beyond the bundle of rights defined by copyright, and therefore cannot be unilaterally restricted by a license. A User Rights Approach to fair use may also affect the corresponding duties of content providers and online intermediaries, offering a legal framework for invalidating terms of use that unfairly restrict fair use and fundamental freedoms.

Overall, a User Rights Approach to fair use may offer more robust safeguards of users’ liberties in the digital ecosystem. Making fair use more universally adopted might be a good cause. But without strengthening the legal status of fair use, and developing a jurisprudence of fair use rights, we may end up fighting the battles of the past.

Niva Elkin-Koren is the founding director of the Haifa Center for Law & Technology (HCLT) and the former dean of the University of Haifa Faculty of Law. Her research focuses on the legal institutions that facilitate private and public control over the production and dissemination of knowledge. She is a co-founder of the Alliance of Israeli Institutions of Higher Education for Promoting Access to Scientific Materials which drafted a Code of Fair Use Best Practices for academic institutions in Israel. Her publications are listed here.

 

Fair Use Week 2015: Day Two with guest expert Kevin Smith

For our second entry this week, we are excited to feature Kevin Smith, Director of Copyright and Scholarly Communication in the Office of Copyright and Scholarly Communication at Duke University.

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What Does Fair Use Taste Like?

 

Will Cross, a colleague from the NCSU Libraries who teaches a graduate course on legal issues with me, frequently refers to the analogy for fair use that he learned as a law student at the University of North Carolina from the legendary Laura Gasaway – fair use is like soup. It sounds strange, doesn’t it? How could such an abstract and contested legal concept be anything like a warm and comforting bowl of soup? But there is real brilliance in this analogy.

One of the difficult things about explaining fair use is convincing people that it is a balancing test. It is not a checklist, where each factor must add up on the same side of the ledger to either confirm or exclude fair use. It is perhaps the least mechanical, the least “bright line” rule found in our law. And yet it works. And it works because it is like soup.

When an experienced chef is making soup, there are certainly things she has learned that do not change – 5 cups of broth for a pound of meat, sauté the onion first, add a small handful of oregano. But a lot of the process of putting those ingredients together is instinctual, if you will, or learned from experience. Add the salt and taste. Too much? A little more broth will balance it out. In short, making soup means taking the known ingredients, blending them together, and seeing if it tastes right.

With fair use we have a statutory list of four factors. They really tell us what the important facts are: where we should look, when evaluating a particular use, for the ingredients that go into the fair use soup. When we have gathered our ingredients – all the circumstances that describe the purpose of the use, the nature of the original, the amount used, and the impact on the market for the original – we are to look at the whole picture and decide if it looks fair. According to the Supreme Court in Campbell v. Acuff Rose, the factors are “explored and weighed together, in light of copyright’s purpose.” Does the soup taste right? If not, there are adjustments the user can make – a little less on the amount, a bit more of transformation (i.e. critical commentary). The goal is to get to the place where all the ingredients (the specific circumstances) blend together and the soup tastes like fair use. If this sounds subjective and uncertain, it is. But the analogy reminds us that we deal with uncertain judgments all the time, and experience teaches us to exercise good judgment, when we cook and when we assess fair use.

I have belabored this analogy because I find it so useful when thinking about fair use decisions. Consider the decision from the 7th Circuit Court of Appeal in Kienitz v. Sconnie Nation. That case involved a pretty straightforward transformative fair use issue, but it just did not taste right to the judge who wrote the ruling. The crux of the matter was that the mayor of Madison, Wisconsin wanted to stop a famous and irreverent block party that has been going on for years, and at which the mayor himself was apparently a reveler when he was a UW student. A local printing company printed t-shirts that lampooned the mayor for his change of heart, using a photograph of the mayor taken by Mr. Kienitz with the motto “Sorry for Partying” superimposed. The photo (it was, of course, the photographer who sued) was substantially altered for the image on the t-shirt, although the printer readily acknowledge that he had used the picture.

In finding that this was a fair use – a result dictated by lots of precedents – Judge Frank Easterbrook takes an odd approach. The key ingredient in this case, one would think, would be transformation. But Judge Easterbrook apparently dislikes transformation in the fair use soup (I feel the same way about okra). So although he acknowledges that the Supreme Court “mentions” the role of transformation, he dismisses it as a question for the case before him. In the process he also questions the well-known Bill Graham Archive v. Dorling Kindersley case from the 2nd Circuit, even though both cases seem right on point for Kienitz. Judge Easterbrook is just determined to not have transformation in his fair use soup, no matter how much the facts force that ingredient on him. Instead he hangs the bulk of his finding on two of the fair use factors – amount used and impact on the market – and dismisses the other two – purpose of the use and nature of the original – because they “don’t do much in this case.” This is a remarkable statement, since purpose of the use is often considered the most important factor (within the analysis of transformation), and the nature of the original (a portrait photograph) really is relevant in this controversy. But they are not ingredients that Judge Easterbrook can stomach, so he leaves them out of his soup.

The reason I find this case remarkable is, first, because Judge Easterbrook gets to the right result through very poor reasoning (see reactions to the decision here and here). But also because it illustrates the soup-like flexibility of fair use. If one ingredient in the analysis in not to the taste of a judge, he or she can try something different. There are lots of ways to find fair use, and lots of paths open to those who would practice it. That is the beauty of a balancing test, whether tasting the soup to see if it is good or balancing the factors to see if a use is fair. When users are contemplating a use, they can adjust the facts – the ingredients – until the balance seems right.

Of course, in many cases fair use claims are unquestionably palatable. The late Judge Baer, in his decision in Authors Guild v. HathiTrust, clearly enjoyed the taste of Hathi’s fair use claim when he wrote “I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants…” That decision was largely upheld by the Second Circuit Court of Appeals, the same Circuit whose taste in fair use Judge Easterbrook questions in his Kienitz decision.

All this raises a troubling question. Is fair use really just a matter of taste? Is a balancing test really as subjective as the soup analogy suggests? I think the answer is that it is not. For one thing, it is worth noting that Judge Easterbrook does not really jettison the question of transformativeness, in spite of the language of his opinion. Rather, he slips transformation into his soup in an unusual way, through the fourth fair use factor. When he finds that the t-shirts are “no substitute for the original photograph,” he is really saying that the original has been transformed in a way that serves a new purpose and creates a new meaning. He may not like the taste of the transformation analysis, but he cannot, and does not, wholly exclude it from his recipe. I think this illustrates an important general point about fair use. The factors are pointers that direct us to examine specific facts related to the proposed use. So we know what the ingredients are. And we balance those ingredients to achieve a specific “taste” – a use that serves rather than undermines the constitutionally-stated purpose of copyright. So we know the list of ingredients that go into fair use, and we know the overall “flavor” we are seeking. With those parameters in mind, we all have the opportunity to cook up a tasty batch of fair use soup.

Kevin Smith is Director of the Office of Copyright and Scholarly Communications and is both a librarian and an attorney experienced in copyright and technology law. He also serves as a nationally recognized resource on local and national policy in order to help the Duke community stay informed and involved with the changing landscape of scholarly publication. You can read his regular blog here.  His latest book is Owning and Using Scholarship: An IP Handbook for Teachers and Researchers (2014).