Fair Use Week 2021: Day Three With Guest Expert Sandra Aya Enimil

Day three of Fair Use Week starts with copyright and fair use expert Sandra Aya Enimil of Yale University looking at the critical role fair use plays in the history of hip hop and sampling.  – Kyle K. Courtney

A Sample of Fair Use

by Sandra Aya Enimil

Music sampling has been, and is, a critical fixture and feature of hip-hop. Hip-hop is an amalgamation of music, music mixing, dance, graphic art, and a specific clothing aesthetic. Lovers of hip-hop music and copyright have followed and studied the impact of copyright law on the genre, particularly how hip-hop musical artists (MCs) have engaged fair use.

Image by Benjamin Wiens from Pixabay

The Mixtape

Fair use, as stated in U.S. Copyright Law, 17 U.S.C. Section 107, is not an infringement of copyright, even if the use utilizes any of the exclusive rights of the copyright holder (as outlined in Section 106 of U.S. Copyright Law). Fair use requires a four-part analysis: purpose of the use, nature of the work, amount used, and potential market harm. Section 107 mentions potential uses including: criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, and research purposes.

Fair use is not limited to the specific listed categories. What is or is not definitively fair use, is decided by the courts. However, with notable exceptions, only a handful of cases around hip-hop music have been litigated and reached a fair use determination[i] (most disputes end before litigation commences or settle while winding through the courts). The most famous hip-hop case to reach the Supreme Court is Campbell v. Acuff-Rose Music, Inc., this case introduced “transformativeness” as a consideration in the first fair use factor: purpose. Miami-based hip-hop group 2 Live Crew sought a license to sample Roy Orbison’s Oh, Pretty Woman. The license was denied, but 2 Live Crew used the sample anyway, and the rights holders for the original song sued. The case made its way to the U.S. Supreme Court which determined that the use was a parody that transformed the original, the amount used was necessary for the purpose of satire, and that the musical works had two different audiences, limiting the market harm.

Most certainly two different audiences

In creative fields, artists borrow from and are inspired by each other as a regular part of the artistic process.  If you are familiar with hip-hop music, you know that one of the foundational elements of the genre, which began in the 1970s, is sampling music from other genres, contemporary, and older music. Sampling of older music is often meant to allow listeners to reminisce, conjure historical references, or sometimes to satirize the music of older generations. Hip-hop began with extremely talented young people from marginalized, African-American, and Latino communities who could not afford to license music used in their unique creations. These MCs often used other music as backing tracks, background music to showcase their rapping skills. Mixtapes (actual tapes, remember those?) were created and distributed and used to fuel the culture. This creative and innovative musical form was the underlying beat for MC battles, breakdancing, and hip-hop nightclubs.

Funky Stuff by antony_mayfield is licensed under CC BY 2.0 license.

Some hip-hop artists, working with DJs and producers, would cobble different elements of multiple songs[i] to create the music underneath their rhymes and rhythms. The mixes and samples were innovative and the rhymes clever. This work helped build the genre through the 70s and well into the 90s (though rapping and hip-hop still exists, most would consider the mid-80s to around the mid-90s the golden age of this genre). Theoretically, many of these MCs should have been able to rely on fair use. Fair use is case specific, so it is difficult to generalize, but:

  1. Purpose: The use of the music was to provide backing tracks to rap, poems, and lyrics. Some uses were satirical. Some music was made available for free, but there were certainly commercial benefits.
  2. Nature: The underlying music was typically highly creative, published works.
  3. Amount: Depending on the artist, as little as one second from multiple songs or an entire song could be used to fulfil the purpose
  4. Market: In most instances, as the court found in Campbell, the audiences for the new work and the original were not the same.

During the early years of hip-hop, the music moved from underground clubs and parties to the radio. As hip-hop music matured, more attention began to be paid to the third-party music samples included in the songs. The original music artists and record labels saw the lucrative nature of hip-hop in the resurgence of interest in their music. Increased interest was not enough though; the original artists and their labels sought compensation for the use of their music.

As time passed and the genre grew, artists could afford to pay for and make original music but sampling remained a part of the culture.  The record labels representing hip-hop artists started requiring any samples be cleared before an album could be released to lower the risk of an infringement lawsuit against the record label. As a result, some artists resorted to releasing two versions, one commercial and one as a “bootleg” containing samples that could not be cleared. Other artists opted to release only music with original music or cleared samples.[ii] Approaches to clearing music rights differed among hip-hop pioneers. Some consistently cleared rights,[iii] some felt their use was transformative, and still others fell somewhere in between clearing some music and continuing to explore using music that had not been (or could not be) cleared or clearing rights after production.

The Remix

There is no dispute that copyright law impacted how hip-hop evolved as a musical genre. Litigation and threats of litigation stopped artists from sampling music that would have created transformative music.[iv]  As hip-hop continued in the 90s, the desire to find songs that cleverly backed up the artist was still an important element of the culture. The commercial success of hip-hop made way for artists, producers, and DJs that had become successful enough to buy licenses to use samples. It eventually became part of the bravado of the time to brag about spending large sums of money to license music for sampling and remixing hip-hop music. The bragging was meant to show how powerful and prosperous some artists had become. But not all artists could afford to pay what, at times, could be exorbitant prices to include even relatively short samples of music. Sampling still occurs, but for represented artists, clearing the music is the only way to release music risk-free. In the digital age, some artists release uncleared music for free on a variety of websites, allowing innovation in music to remain.

Mashup v. Sampling

As hip-hop artists shied away from commercially releasing music with uncleared samples, the “mashup” developed. Mashups involve combining at least two songs into new music. Vocal tracks may also be overlaid over the works. While mainly hip-hop artists could not get away with unauthorized sampling, mash-up producers, DJs[v], and artists do not seem to have the same troubles. Dr. Mel Stanfill, during the 2019 Race + IP Conference, pondered the different reactions to sampling versus mashups. Sampling at its height was done mostly by marginalized hip-hop artists and in at least one case, sampling has been referred to as theft.[vi] While mashup artists have yet to face challenges in court, the music seems to proceed without the response hip-hop artists faced. In fact, some mashup artists openly discuss their reliance on fair use to create their works. As MCs did (and do), mashup artists often release music for free online, without clearing rights, but many travel the world and fill concerts playing this uncleared music. The treatment of mashup DJs and hip-hop artists is noticeably different. It is difficult to determine whether the distinctions are due to the times, whether we have evolved into a culture of sharing, or whether the difference is in who does/did the sampling versus who is making mashups.

Who’s Got Next?

There may be some who say every artist, hip-hop and mashup artists included, should be required to license music, but this methodology negates fair use, which is a right available to everyone. That Campbell is the only case, seminal though it is, to address hip-hop and sampling to reach the U.S. Supreme Court is a shame. That many artists rarely, if ever, raise fair use when litigation is threatened, or happens, is both concerning and frustrating.

As discussed on this Public Domain Day blog, Professor Kevin Greene suggests ways to help hip-hop artists. The pioneers of hip-hop need to be informed and educated that they may soon be able to exercise their rights under termination of transfer which allows artists and their estates to end what might have been predatory copyright transfer contracts and regain their copyright. Helping artists in this way could address the past stifling of their creative works during the golden age of hip-hop.

It is possible that the disparate treatment of mashup and hip-hop artists is due to the passage of time and changing attitudes about music and sharing. If this is the case, then hip-hop artists should be able to avoid the expensive licensing schemes that hinder creativity and innovation in the genre. Mashup artists seemingly rely heavily on fair use without challenge from the recording industry. The argument is not that they should receive the same treatment as hip-hop artists of the past (and present). The argument is that both types of works be treated as transformative works under fair use.  Hip-hop artists should be allowed to rely on fair use as a means to spur creativity and innovation in hip-hop without fear of litigation.

Recommended Resources:

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

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

Footnotes:

[i] Using elements from thousands of songs was the signature style of Public Enemy. McLeod, Kembrew. “How Copyright Law Changed Hip Hop: An Interview with Public Enemy’s Chuck D and Hank Shocklee.” Little Village, 17 Oct. 2011, https://littlevillagemag.com/how-copyright-law-changed-hip-hop-an-interview-with-public-enemys-chuck-d-and-hank-shocklee/.

[ii] Biz Markie, a few years after being ordered to pay damages to Gilbert O’Sullivan in Grand Upright Music, Ltd v. Warner Bros. Records Inc., for the unauthorized sampling O’Sullivan’s song “Alone Again (Naturally)”, released an album titled All Samples Cleared.

[iii] The Beastie Boys began clearing rights after releasing Paul’s Boutique, which contained samples they did not or could not clear.  Coleman, Jonny. “Meet The Woman Who Helps The Beastie Boys, Beck And The Avalanches Clear Their Samples.” LAist, https://laist.com/2016/10/19/pat_shannahan_detective_sampling_interview.php. Accessed 23 Feb. 2021.

[iv] In Grand Upright Music, Ltd v. Warner Bros. Records Inc., the court ruling changed hip hop music, requiring that future music sampling be approved by the original rights holders. This was limited to the Southern District of NY, but the impact reverberated throughout the industry.

[v] Artists like Girl Talk and Danger Mouse among many others.

[vi] In Grand Upright Music, the court stated the biblical verse “Thou Shall Not Steal” and ruled that sampling without permission constitutes copyright infringement.

[i] Hip-hop artists did not invoke fair use as often as they should have. Falzone, Anthony. “Why Hasn’t Diddy Tried to Save Music Sampling?” Slate Magazine, 1 Nov. 2007, https://slate.com/news-and-politics/2007/11/why-hasn-t-diddy-tried-to-save-music-sampling.html.

Fair Use Week 2021: Day Two With Guest Expert Brandon Butler

Day two of Fair Use Week opens with UVA’s Brandon Butler tackling critical takeaways from the recent case addressing fair use & software in Apple Inc. v. Corellium, LLC, Case No. 19-81160-CIV-SMITH, 2020 U.S. Dist. LEXIS 249945 (S.D. Fla. Dec. 29, 2020) – Kyle K. Courtney

Apple v. Corellium: Some Early Takeaways for Software Fair Use

by Brandon Butler

What uses of software are fair? What uses are transformative – the category of use that courts most consistently find to be fair? The question is increasingly urgent for libraries, archives, and museums, as we already live in a world where most information (from government archives to fine art) is stored in digital formats that can’t be read without the right software. In addition, software itself is also an artifact and a source of information that researchers want to consult and explore. Fair use is a key tool in library digital stewardship, but fair use’s application to software is rarely, if ever, litigated.

That’s why the opinion last December in Apple v. Corellium is so interesting, even though it’s (so far) just one district court judge’s take, and not binding precedent on anyone else. In a field with so few entries, any judicial opinion is likely to be read with interest by other courts and would-be litigants.

The other reason the opinion is so interesting is that in some ways, Corellium resembles the kind of emulation technology that libraries and archives can use to run old software on servers and make it available to end-users over the internet. The basic contours of Corellium’s fair use argument are essentially the same as the ones that justify software preservation and reuse in the library and archives context—in a phrase, that our service is a transformative use (in the fair use sense) that serves copyright’s purpose of increasing access to information without displacing the copyright holder’s reasonable or traditional market.

First, some background. You can find a pretty good summary of the lawsuit in this somewhat misleadingly-headlined story in The Washington Post. (The headline, “Apple loses copyright battle…” is misleading because Apple hasn’t really lost, yet; they lost on fair use, but as I’ll explain below, Apple may still win on their remaining DMCA claim). The very short version is that Corellium provides developers and security researchers with a platform that lets them run and explore Apple’s iOS software in a server environment, which has advantages over trying to run and manipulate the software on an iOS device (an iPhone or an iPad). After failing to acquire Corellium, Apple filed a lawsuit claiming that Corellium infringed the copyright in iOS by loading the software into its platform, and later, added a DMCA claim, alleging that Corellium’s platform circumvented technical protection measures for its users, and therefore Corellium was “trafficking” in circumventing technology. We’ll get to the second claim later, but first let’s look at some key takeaways from Judge Smith’s opinion on fair use.

Takeaway 1: Research is a transformative purpose, and add-on features help bolster your case.

Judge Smith holds that Corellium’s use is transformative – it serves a different function than iOS, and it adds value and information in the process. That’s important, because transformative uses almost always win on fair use (and non-transformative ones lose more than they win). Judge Smith cites a few key facts that lead him to this conclusion, but most important seems to be that Corellium does not “merely repackage” iOS in a new platform. Instead, it “makes several changes to iOS and incorporates its own code to create a product that serves a transformative purpose.” Judge Smith calls out several things users can do with the Corellium platform that “make available significant information about iOS”:

“(1) see and halt running processes; (2) modify the kernel; (3) use CoreTrace, a tool to view system calls; (4) use an app browser and a file browser; and (5) take live snapshots.”

Because these features serve security research, Corellium’s avowed transformative purpose, and are not available in stock iOS, they help show that Corellium’s platform is transformative – it does something different and new.

Judge Smith returns to these features, and the ways that they allow the user to learn new things about the software, over and over again. Libraries and archives interested in making software available for research purposes (and the technical experts building the tools to support this) should strongly consider adding features like Corellium’s to facilitate deeper engagement with the software.

Takeaway 2: A few bad apples don’t spoil the fair use bunch.

Apple argued that because some Corellium users might not be engaged in bona fide security research, the tool shouldn’t be considered transformative. Judge Smith rejected this argument, saying that the record showed Corellium’s intended use was for security research, and the possibility that it may not always be used for that purpose does not undermine the finding of fair use. This reasoning would be handy for libraries who have to contend with the notion that not all library users would consult software (especially games or art) for purely research purposes.

Takeaway 3: Software is a weird hybrid of functional and creative work, but that doesn’t make the second fair use factor any more important.

The second fair use factor — the nature of the work — has become kind of a vestigial organ. Courts go through a kind of rote recitation that use of more factual works is favored while use of more creative works can be less favored, but many important fair uses involve creative works…. and blah blah blah. Given this mushy mess, courts are increasingly comfortable saying explicitly that this factor doesn’t really matter in the final calculus. The Corellium opinion takes judicial indifference to the second factor to a new level. Judge Smith does lay out arguments from Apple and Corellium, and acknowledges that software is a kind of hybrid of functional and creative work – iOS is fundamentally a tool, but it has aesthetic and creative aspects, etc.. But he concludes by quoting Judge Leval in the Google Books case saying that the second factor rarely matters, and then… he just moves on, without even expressing an opinion on how the factor should be weighed in this case!

Takeaway 4: Consider turning off features that aren’t useful for research (but might be commercially competitive)

In considering whether the amount of iOS used in the Corellium product is appropriate, Judge Smith considers how much is needed for the transformative purpose of security research. Downloading and copying all of iOS as part of the installation process is reasonable, he says, but he also notes approvingly the features of iOS that are *not* ultimately made available to Corellium users. Face ID, Touch ID, baseband, camera, and the App Store are some examples of iOS features not available to Corellium users. Corellium users also can’t make calls or send messages.

Arguably, most library and archival software uses will face less scrutiny on this point, as they will not involve software that is still commercially available. The prospect of providing a commercial substitute for the original should be much less threatening in that case. Still, it might strengthen the fair use argument to think about the ways research access to software does not offer the full range of services available to an ordinary consumer. For example, when providing access to software titles used to create files, such as word processing, design, or music production software, consider limiting the ability to save or export those creations.

Takeaway 5: Software copyright does not convey a monopoly on research platforms

One of Apple’s attacks on Corellium was that their platform unfairly competes with an iOS security research offering that Apple itself is developing and plans to release in the future. Judge Smith quickly dismisses this argument, saying Apple cannot use its copyright over iOS to create a monopoly over the separate market for security research. The same logic would apply to a variety of uses in cultural heritage institutions, who could argue that copyright does not confer a monopoly on the preservation and research tools and services they offer.

Takeaway 6: Reasonable vetting of users helps prove good faith.

Apple’s final argument was that Corellium should not benefit from fair use because it does not act in “good faith” (a factor not in the fair use statute, and arguably not relevant to it, but frequently invoked nonetheless). The primary basis for this claim is that users of Corellium’s products could be bad actors – they could discover bugs in iOS and, rather than reporting them to Apple, they could sell them to malicious hackers. Judge Smith rejects this argument, pointing out that in fact Corellium does do some vetting of potential users, rejecting those it suspects could be interested in malicious uses. Cultural heritage institutions might similarly consider whether, in some cases, potential users could be screened to help ensure their purposes are bona fide. This vetting doesn’t need to be perfect – as mentioned in Takeaway 2, Judge Smith acknowledges that any tool is capable of misuse, and a tool or service can still be legitimate and transformative even if some users may not behave as the creator intended.

Takeaway 7: The DMCA can still screw everything up.

Since its passage in 1998, the most glaring failure of the Digital Millennium Copyright Act (from a user perspective) is the way it seems to undermine the balance in copyright. This case is another example of the law’s glaring failure on that score. Briefly, the DMCA created a new right for copyright holders – a right against the circumvention of technological protection measures. In other words, when copyright holders use digital locks (encryption, authentication servers, etc.) to block access to copyrighted works, the DMCA gives them a right to sue anyone who breaks those locks. While this issue is not settled, Judge Smith sides with the courts who have found that the DMCA bars breaking digital locks *even if the ultimate use of the work is legitimate fair use*. It is as if the law gave someone a right to fence off sections of any public park, and to sue anyone who took down the fence, even though the public has the right to access the land inside.

Here, Apple has implemented a series of digital protections that prevent installation of iOS on non-Apple hardware, which they say Corellium circumvents as part of adding iOS to its research platform. Notably, Apple claims that Corellium not only engages in circumvention itself, but also that they “trafficked” in circumventing technology by providing their platform to users. This is important because another major flaw in the DMCA is that although it does include statutory exemptions for users (and it empowers the Librarian of Congress to create new ones every three years), there are no exemptions from the prohibition on trafficking in circumvention tools. So, while Corellium’s users arguably qualify for the exemptions related to security research, if Corellium itself is found to be trafficking in circumvention tools, there is no exemption or defense to protect them.

Judge Smith doesn’t rule on the DMCA claim in this opinion. He says there are genuine issues of material fact that need to be determined first, so the case will move forward with further fact-finding and a trial. But the startling takeaway, here, is that despite the headlines, Corellium is still very much in danger of losing this case, even though its platform is perfectly legitimate fair use. Libraries, archives, and museums have secured exemptions for preservation (and are working on a modified exemption that would enable broader access), so they can take some comfort in that. However, if the court finds that Corellium’s use is “trafficking,” then exemptions will not help. Given the prevalence of digital rights management in software, this result could chill a substantial body of legitimate fair uses.

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

Fair Use Week 2021: Day One With Guest Expert Kenneth D. Crews

We are delighted to kick off the 8th Annual Fair Use Week with a guest post by the worldwide copyright expert, Kenneth D. Crews, as he contemplates an important question on the most recent U.S. copyright legislation. -Kyle K. Courtney

Can Fair Use Survive the CASE Act?

by Kenneth D. Crews

When Congress thinks of COVID, it seems to also think about copyright.  Congress made that connection at a critical moment this last December.  Embedded in the appropriations bill that gave emergency funding to citizens in need, was a thoroughly unrelated provision establishing a copyright “small-claims court,” where many future infringements may face their decider.  The defense of fair use will also be on the docket.

The new law, known as the CASE Act, establishes the Copyright Claims Board within the U.S. Copyright Office, where parties may voluntarily allow their infringement cases to be heard.  A copyright owner, as “claimant,” may choose to commence legal action in the new agency.  The user of the work, or the “respondent,” may allow the matter to proceed or may choose to opt-out, effectively sending the case back to the copyright owner to decide whether to drop the matter or file a full-fledged lawsuit in federal court.

 

 

Realistically, this new court-like Board may be a dark hole where cases mysteriously disappear.  Some claims will be filed and then bounced as the respondents opt-out.  Other claims will be launched, and respondents will simply vanish or fail to understand or react at all, sending the matter into default.  When a proceeding finally comes to fruition, the parties will investigate and present evidence, and the three appointed Copyright Claims Officers will determine the outcome of each case.  Any claim of infringement will be subject to relevant defenses, such as expiration of the copyright, as well as fair use and other copyright exceptions.

The Copyright Claims Board will not open for business until late in 2021 at the soonest, but this is a good time to contemplate how fair use might play out.  Think of these stages and possibilities:

 

Raising the Defense. A proceeding begins with the filing of a claim and the formal delivery of notice on the respondent.  The first mention of fair use (or any other copyright exception) will typically appear in the respondent’s reply.  But surely the claimant will foresee fair use asserted in many of these small-claims proceedings.

Gathering the Evidence. Courts and commentaries regularly remind us that fair use is a fact-specific matter, and the details of each case can determine the outcome.  Staff attorneys working for the Board have the authority to investigate a matter, and the Officers have the authority to allow the introduction of evidence.  Think of that fourth factor of fair use: the effect of the use on the market for or value of the work.  A court will often need confidential economic data about the sales of the work in question and the revenue earned.  The Copyright Claims Officers, parties, and staff attorneys do not have clear authority to compel disclosures and discovery.  They can “request” documents and information.  As a result, the Board could frequently be called upon to decide questions of fair use, but without the needed evidence.  The choices at that point will be far from satisfactory.

Reporting the Decision. The Board is required to make a public disclosure of its decisions and the legal basis for rulings, but the statute includes few other details.  The public announcement of a ruling might be little more than a conclusion, leaving only by implication the resolution of the fair use argument and the reasoning.  On the other hand, the ruling on fair use could be an elaborate legal analysis.  Because the parties have limited ability to appeal a ruling, the Officers might not feel the need to hand down complex opinions.

Depth of the AnalysisOn the other hand, all judges know that their rulings on fair use are convincing to parties and lawyers only if their analyses are solidly persuasive.  The same will be expected of the new Copyright Claims Officers, and for that reason they might want to pursue trenchant examinations of fair use.  The Officers will also be looking to the parties for their arguments, and the parties are permitted to be represented by attorneys (or even by law students).  Keep in mind that the typical proceeding will involve a modest use of a single work, and such users will also typically not be in position to retain specialized and expensive legal counsel.  Consequently, the legal analyses presented to the Officers will often be far from equitable as between the parties.

Creation of Precedent. Decisions from the Copyright Claims Board will not be binding on anyone other than the immediate parties, and they officially will have no precedential value in later actions in a court or before the Board.  Yet conventions of lawyering and the inevitability of human reasoning will surely press to the contrary.  As the Board builds a record of rulings, the outcomes and the reasoning will undoubtedly be fodder for scrutiny and statistical tabulation.  Individual rulings will in some manner be referenced in later proceedings.  Analyses of trends and patterns will be pursued for their scholarly value and as insights for parties and attorneys thinking about the next case to come before the new Board.

Can fair use survive in this small-claims Board? Technically, the answer is definitely yes. However, fair use may also be vulnerable to distorted determinations, resulting from the lack of critical evidence, the pressure to manage a growing roster of legal proceedings, and the inequities of legal representation. Until the court can demonstrate a record of wise and effective rulings on fair use, any party to a claim that is likely to hinge on an innovative or nuanced question of fair use would probably we wise to opt-out of small claims and send the case to settlement or federal court.

Kenneth D. Crews is an attorney and copyright consultant in Los Angeles, and he was previously a faculty member and copyright policy officer at Indiana and Columbia Universities.  He is the author numerous publications on fair use, including Copyright Law for Librarians and Educators, published by ALA Editions. The publisher has kindly made the new fourth edition of the book available at half price during Fair Use Week.

Fair Use Week 2020: Day Five With Guest Expert Kathleen DeLaurenti

Hacking Fair Use: Making Music Accessible

by Kathleen DeLaurenti

(Photos by Ben Johnson)

When you put music, technology, and one sleepless night in a blender, how do you end up with fair use? This year, some students at Johns Hopkins helped us figure that out!

A new annual tradition at the Peabody Institute, PeabodyHacks invites students to spend 24 hours experimenting and developing projects at the cross section of music and technology. We encourage novice attendees, try to foster collaborations between engineering and music students, and focus more on process and experimentation than sophisticated final projects. The event also allows students to meet guest artists like Laetitia Sonami and Suzanne Kite, whose work challenges ideas of being, femininity, relationships with artificial intelligence, and embodiment of digital sound and physical bodies.

The second Peabody Institute annual hackathon brought to life a slew of interesting projects in January 2020 focusing on music and accessibility. Students created electronic instruments for beginners, developed games to help students with beat-deafness (it’s a thing!), and, to my delight, made music more accessible with fair use!

Ankur Kejriwal, Dylan Lewis, and Winston Wu are students who, during their day jobs, study engineering and computer science. As serious amateur musicians, they wanted to develop a project that made music more accessible for musicians who were still developing their chops and might find sitting down at the keyboard to play their favorite music intimidating. Semplice, their music simplification engine, allows anyone to take their favorite piece of music and make it easier to play without losing what they love about the piece.

The premise behind Semplice is, well, simple: a user uploads their copy of their favorite piano piece that is too hard to play, and chooses how to make it easier. They can eliminate all 16th notes so that they don’t need to play as fast, simplify the left hand, or turn the left hand playing all into chord blocks. While simplifying the left hand makes it easier to play, it also allows for harmonic analysis of piano music, which can be beneficial for music theory students or anyone who might want to learn more about arranging and improvising.

Once you’ve selected how much easier to make the piece, then the magic happens! After quickly processing it through an OMR engine (optical music recognition), users get the new version of the piece to download and perform for their own study and personal use. Or, as I like to think of it, musical fair use magic!

When I reached out to the team after their 2nd place finish in the hacking competition, they were surprised that fair use had anything at all to do with their work. They had some experience with music copyright as music lovers: Winston Wu shared that he often buys transcriptions of his favorite symphonic works to play on piano, his main instrument. But when they were developing Semplice, they hadn’t spent a lot of time thinking about copyright.

The simplicity of the project is also what makes it such a wonderful example of fair use: users upload copies of music that they already own and only the uploader gets the simplified, derivative version. Speaking with Ankur Kerjiwal, he notes that even the processing logs don’t tell you anything about what pieces were uploaded and processed. You can see what someone named their file, but no user info is collected during the process, so the metadata in the logs doesn’t tell much of a story at all. The team is currently considering how to make the engine available, but they envision it as a free, light weight tool that solves a specific problem without copying, distributing, or making additional copies of the music available.

In conversations with Ankur, even though the team wasn’t thinking about fair use this time, copyright and fair use often create a “road bump” in his work. He relies on large datasets for testing his software projects and, as a PhD student, he needs to be able to publish that data openly to have his work peer-reviewed. While some of us who frequently work on copyright might think that the Google Books case settled the issue of computational data, it’s complicated, especially with music and websites who have restrictive terms.

I asked Ankur about his experience using the widely available musiXmatch dataset that is part of the Million Songs Dataset project. Because of copyright and other restrictions, less than one third of the million songs data lyrics are included. Also, to side-step concerns about the dataset, the research team has released the set as bag-of-words data, meaning that you don’t get the collected lyrics for each title, just counts of words across the dataset. I asked Ankur if this limited the utility of the dataset. He said, “Absolutely – you would be able to do much more if the set included full lyrics in the order they appeared in a track.”

Music continues to bring us its share of fair use challenges, but it’s exciting to see young engineers wading into the fair use waters. Uncovering unwitting fair uses in our campus community has proven a great way to educate faculty, students, and colleagues about how to flex their fair use muscle. With resources like our copyright consultation service at the Peabody Institute of the Johns Hopkins University, I hope that we can continue to work with students to help them take advantage of their fair use rights so that they can make music, accessibility, and magic happen.

Kathleen DeLaurenti is the Head Librarian at the Arthur Friedheim Library at the Peabody Institute of the Johns Hopkins University. Her work includes publishing projects for music, teaching music-focused copyright, and advocating for both fair use and the public domain. She has been active in the Music Library Association (MLA) Legislation Committee as a member since 2009 where she has also served as chair of the Best Practices for Fair Use in Music Collections task force. She has also been a member of the Copyright Education sub-committee of the American Library Association (ALA) and is the 2015 winner of the ALA Robert Oakley Memorial Scholarship for copyright research.

Fair Use Week 2020: Day Four With Guest Expert David Hansen

Fair Use: Copyright’s Deus Ex Machina?

by David Hansen

On the surface it sometimes feels like copyright law is incoherent. On the one hand, we read about how the character of copyright is aimed at benefiting society; enriching public discourse; and promoting the progress of science and the useful arts. But then, we read elsewhere about copyright as a primarily economic tool, calculated to achieve maximum incentives for economic return to owners.

Athena Pallas (Minerva) and the Centaur, by Sandro Botticelli c.1482. (No need to use fair use for this image since it is in the public domain!)

When we have what seems like an irresolvable conflict between these two characters, fair use somehow always seems to make an appearance. Like the story of those Greek dramas in which gods descend onto the stage via machine (deus ex machina) to resolve seeming plot holes, fair use can sometimes seem to swoop in and handily resolve all issues.

Except it doesn’t, or at least it shouldn’t. Fair use is not some external entity acting on the copyright system at whim, like Zeus interfering in mortal disputes. But in day to day use, I experience the allure to treat fair use this way when working with people new to copyright who are seeking answers to basic questions such as “Can I reuse this figure in my article?” or “How much of this book can I scan for my students to read online?” After some preliminary introduction to what fair use does, I find those users have the strong tendency to fall in love with the power of doctrine. Why address other complex questions (“Is the work copyrightable to begin with?” “Is what you want to do even implicating any of the owner’s exclusive rights?”), when, like a magical incantation, it seems you can just say words like “transformative” and “educational” and, presto chango, everything is OK!

While fair use is powerful, it isn’t magic. What it is, is an integral part of the Copyright Act. As the statute states, fair use is a “right” too, and exercising it is “not an infringement of copyright.” It also requires rigorous analysis. Mindlessly incanting words such as “transformative” won’t do. There is now helpful empirical evidence that fair use applied by the courts is not arbitrary, but has a robust and coherent framework of analysis for ensuring that copyright doesn’t “stifle the very creativity which the law is designed to foster.” Whole codes of best practices from a variety of communities of practice—documentary filmmakers, librarians, and many others—have been developed to put into practice lessons from those cases, providing yet more certainty and coherence to the doctrine for users in day-to-day application.

Beyond misapplication, I think a much more serious concern is in the pressure to look to fair use as a way to avoid other hard questions about other areas of copyright law. If we look to fair use to solve all our copyright questions, that pressure could start to water down and ultimately threaten the coherence of the doctrine. Two recent cases in particular raise some concerns about whether core questions about the scope of copyright protection are being punted into an unnecessary fair use analysis.

ASTM v. Public.Resource.org is one such case, at its core about whether standards (e.g., material safety standards) incorporated by reference into federal law are protected by copyright or are unprotectable as “edicts of government.” The district court in that case concluded that such standards as incorporated into the law are protectable (a decision I think was wrong).On appeal, the D.C. Circuit Court of Appeals reversed but instructed that the best way forward would be to avoid the subject matter question and instead analyze first the use primarily through the lens of fair use.

Oracle v. Google raises some similar issues. This is a case currently before the U.S. Supreme Court, primarily to answer the question of whether application program interfaces (APIs) are copyrightable. Google’s position is that they are not protectable and there is no infringement, at least in how Google has used them on the facts in that case, while Oracle says that they are. As a backup argument, Google argues that even if protectable, its use is fair use.  Google has a good, though a bit awkward fair use argument, explained well both in its brief and in supporting briefs from amici . Like the ASTM case, this case raises much more important questions about the scope of protection. Currently before the Supreme Court, my hope is that the Court does not dodge those important questions even if fair use gives them the option.

So is fair use copyright’s a deus ex machina? No, I think not, but we are sometimes tempted to ask it to be. We have a lot to lose if we do that. In any individual case, it probably doesn’t matter much, but over time and across many situations, we risk watering down the currently robust, predictable doctrine. I’m not saying that we should avoid fair use at all costs, but it’s important to remember that fair use is just one part (an important part) of the copyright system, and we shouldn’t lean on it to resolve all of our issues.

Notes and resources you may want to check out:

Some of my thinking on this subject is influenced by a fantastic article, now 15 years old, written by Matthew Sag titled “God in the Machine: A New Structural Analysis of Copyright’s Fair Use Doctrine.”

The research I mentioned above on the stability and coherence of fair use is rich. Some articles worth checking out are:

Finally, the fair use best practices are available at https://cmsimpact.org/codes-of-best-practices/.

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 2020: Day Three With Guest Expert Carla Myers

Fair Use and Video Streaming

By Carla Myers

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

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

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

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

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

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

Factor 1: Purpose

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

Factor 2: Nature

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

Factor 3: Amount

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

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

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

Factor 4: Market

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

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

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

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

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

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

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

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

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

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

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

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

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

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

by Brandon Butler

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Presidents, Politics, and Fair Use

by Kenneth D. Crews

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fair Use, Innovation, and Controlled Digital Lending

by Kyle K. Courtney and David R. Hansen

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

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

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

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

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

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

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

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

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

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

Transformative Use

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

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

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

Market Harm

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

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

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

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

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

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

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

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

Celebrating Fair Use in Films

by Krista Cox

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

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

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

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

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

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

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

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

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

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

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