fairuseweek

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

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

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

By Juliya Ziskina

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

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

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

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

Andy Warhol Foundation v. Goldsmith

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

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

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

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

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

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

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

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

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

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

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

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

“But the plans were on display…”

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

“That’s the display department.”

“With a flashlight.”

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

“So had the stairs.”

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

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

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

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

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

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

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

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

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

How to Evade Fair Use in Two Easy Steps

by David R. Hansen

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

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

Two easy steps to evade fair use

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

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

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

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

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

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

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

Is it seriously that easy?

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

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

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

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

How to Protect Fair Use from Contractual Override

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

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

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

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

Legal Strategies in Court

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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Avoiding Copyright Literalism and the Fairness of Computer-Generated Works

by Brandon Butler

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

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

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

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

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

Copyright is for the public

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

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

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

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

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

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

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

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

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

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

Public Interest Safety Valve(s)

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

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

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

Google v. Oracle, Copyright, and Competition

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

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

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

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

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

If you’re with me so far, you’ve seen

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

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

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

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

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

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

Brandon Butler is Director of Information Policy at University of Virginia. There he focuses on intellectual property, copyright, licensing and user privacy as they are related to the acquisition, dissemination and preservation of various forms of information and cultural artifacts, and as they are related to scholarly communication. He serves as an expert consultant to UVA librarians, to groups and individuals within the University, and to national and international efforts focused on relevant questions. He was previously a Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law. Before that, Brandon was Director of Public Policy Initiatives at ARL from 2009 to 2013.

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

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

Fair Use is Boring

by Dave Hansen

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

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

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

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

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

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

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

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

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

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

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

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

by Kenneth D. Crews

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

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

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

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

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

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

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

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

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

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

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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.

Fair Use Week 2016: Day Two With Guest Expert Krista Cox

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Thankful for Fair Use

by Krista Cox

Fair use is a critical right in U.S. copyright law, permitting the use of copyrighted material without permission from the rightholder under certain circumstances. It has been called the “safety valve” of U.S. copyright law, responsive to change and able to accommodate new technologies and developments. Amending copyright law is not an easy task; the 1976 Copyright Act took twenty years to enact (and was where the fair use doctrine was officially codified, though it was certainly not a new doctrine). Fair use, as a broad and flexible doctrine, therefore allows copyright law to adapt to the changing environment and technologies and preserve the important balance in the law without requiring constant legislative attention.

 

Here are just some of the ways we rely on fair use each day in ways that were inconceivable when the doctrine was codified by the 1976 act, much less in 1841 when Folsom v. March (which forms the basis of the fair use doctrine) was decided:

  • Checking e-mails.
  • Forwarding e-mails and attachments.
  • Watching and sharing news clips online
  • Using social media, such as Facebook and Twitter.FUW.Infographic2
  • Recording shows with a DVR to watch later.
  • Sending a show from a DVR to a mobile device to watch.
  • Using a web search engine like Google or Bing.
  • Using Shazam or other sound search.
  • Reading a book on an iPhone.

We rely on fair use each day because of the prevalence of technology. For example, temporary copies are constantly being made when we access webpages or open e-mails and attachments. These copies could be unauthorized reproductions, but thanks to fair use, copyright law accommodates these advances in technology without requiring legislative changes. Without fair use, the growth of the Internet and technology as we know it today would not be possible. Flexibility in the fair use doctrine has already led to these new innovations and can continue to promote the progress of science and the useful arts for technology that we may are not even able to conceive of today.

Of course, fair use is not limited to new technologies or to those listed above. ARL’s “Fair Use in a Day in the Life of a College Student” infographic, released as part of the Fair Use Week 2016 celebration, for example, demonstrates how often a college student encounters fair use on a daily basis, often without even realizing that she is relying on this critical doctrine.

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From checking her e-mail, forwarding messages, doing research, writing papers, sharing information over social media, watching recordings of popular shows, taking selfies and more, the average student relies on fair use constantly. Fair uses are all around and we should be thankful that the broad, flexible fair use doctrine accommodates new ways of communicating, sharing, learning, researching, enjoying entertainment and more.

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 2015: Day Two with guest expert Kevin Smith

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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).

FAIR USE WEEK 2015: DAY ONE WITH GUEST EXPERT KENNETH D. CREWS

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Welcome to the 2nd Annual Fair Use Week hosted by the Harvard Library Office for Scholarly Communication!  This entire week we will be celebrating Fair Use through expert posts, videos, “Fair Use Stories,” and a live panel on Thursday, February 26th.

We are delighted to kick off this year’s celebration with a post by Kenneth D. Crews.  Crews is an internationally recognized expert on copyright, libraries, and fair use.  

 

“Copyright, Fair Use, and a Touch of Aristotle”

 

Ponder this overlooked principle of copyright:  Fair use abhors a vacuum.

Commentary and events about fair use justly abound, but fair use does not exist in isolation.  It is not compressed into one celebrated week.  It never stands alone.  And it is integral to the functioning of copyright law.  Fair use responds to changing demands, and by its nature fair use is pulled into the deep uncertainty brought on by expanding innovation.

Start with copyright’s basic premise.  Copyright is fundamentally a system of legal rights, granted initially to authors, authorizing control of certain uses of creative works.  The basic legal rights are familiar.  Copyright owners have rights of reproduction and distribution of copies; rights to make derivatives or adaptions; and rights to make public displays and performances.  For some works, moral rights also apply.

The rights of copyright owners are far from absolute.  They are subject to a variety of conditions and limitations, starting with the fact that copyrights expire, allowing works to enter the public domain.  Copyrights may last for many decades, but the eventual expiration of copyrights is essential to the central purpose of the law: To encourage creativity.  By granting rights, the law encourages authors to create new works.  By assuring a public domain, the law boosts the next generation of creative ventures.

Copyrights are also limited by a long list of statutory exceptions.  The public domain is broad, but it can be far in the future.  By contrast, exceptions apply from the outset of the copyright, but they are of narrow scope.  Fair use is one such exception.  Fair use permits all of us to make uses of copyrighted works, but only within the framework of the four factors in the statute.  The meaning of the factors is wide open to debate, but they ultimately set parameters on the amount, purpose, and other conditions for proper use.

What about that vacuum, you ask?  Already we can see two ways that fair use and vacuums don’t jibe.  First, fair use does not live alone.  It is one of many statutory exceptions.  The U.S. Copyright Act has exceptions for teaching, libraries, services for the blind, music recordings, satellite transmissions, and more.  Indeed, a proper evaluation of fair use often means looking first for a specific statute that might meet your needs.

Fair use is also not in a vacuum for a more conceptual reason.  Fair use may be about public rights, but its significance derives from private rights.  The law grants private rights to authors for the benefit of private parties, but also for a public benefit.  All members of the public benefit if we are motivated to craft new artworks, formulate new software, compose new music, or roll out imaginative novels and movies.  At the same time, many of these new works build upon previous copyrights.  By allowing fair use of works that came before, and of our new works, the law is sanctioning the building block of further aesthetics, storytelling, computer innovations, and even parody.   Fair use is an essential complement to the rights of owners, and it completes the circle of creative incentives.

Finally, fair use abhors a vacuum as a byproduct of its inherent versatility.  Fair use is the go-to statute for creative exploits.  Congress deliberately devised a fair-use law that could apply to all media, all types of works, and all innovative pursuits.  It clearly establish limits on amount, purpose, and other conditions, but fair use at least allows some degree of use as we experiment with unanticipated technologies, formats, and objectives.

Only recently have courts told us that fair use allows low-resolution images in a study of music history, or permits storage of digital books for research indexing and access for the blind.  Courts have resolved that posting videos on YouTube for public criticism may be allowed.   Using a politician’s photograph for political commentary can be fair use, and so can the use of video clips from commercial broadcasters, especially when the selections are limited and the purpose is to facilitate political and social critiques.

As the media and substance of creativity expands, so does the reach of fair use.  The outer boundaries of technology are accelerating swiftly away from copyright’s familiar home.  As innovation open up vast areas of untested space, so will fair use be absorbed into the new realm.  The new technological ventures, like other creative pursuits, require fair use and other copyright limitations for experimentation and success.  Without fair use we would have no troves of digitized research collections from Universities, and we would be denied the biting insights that pour forth from South Park or The Daily Show.

The human drive for innovation will always grasp new opportunities that emerge with technological expansion.  Because fair use is flexible, it is able to be drawn into the vacuum of that new space.  Because fair use is integral to copyright in general, when it melds into the vastness of innovation it also helps protect rights, encourage authors, and promote the progress of public and private interests.

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Kenneth D. Crews is an attorney with Gipson Hoffman & Pancione in Los Angeles.  He founded the first copyright center at any university, based at Indiana University.  He also established the copyright center at Columbia University and continues to serve on the faculty of Columbia Law School and the Munich Intellectual Property Center.  He is the author of Copyright Law for Librarians & Educators: Creative Strategies & Practical Solutions (3rd ed., 2012).