Year: 2021

Fair Use Week 2021: Day Five With Guest Experts Meredith Jacob and Will Cross

best practices, copyright, fair use , , , ,

For our final post of the 8th Annual Fair Use Week, we are very excited to have two of the authors of the recently launched Code of Best Practices in Fair Use for Open Educational Resources, share their insights on the process and development of this incredible publication. Enjoy! – Kyle K. Courtney 

Creation is Not a Closed Book Exam: Developing the Best Practices in Fair Use for Open Educational Resources 

by Will Cross and Meredith Jacob

You can learn a lot from which questions people ask you, and which they don’t. As educators and advocates for building openly-licensed textbooks and other open educational resources (OER), we spend a lot of our time at conferences and workshops talking about how to understand and use Creative Commons licenses. As we’ve done presentations over the past few years, however, we noticed that attendees generally listened politely to our presentation and then spent the entire question and discussion period asking pointed questions about how fair use fits in.

As fair use advocates, we love these questions – what’s more fun than digging into a juicy fair use discussion! But bringing discussions about fair use into the open education community raised a second set of questions from creators and especially gatekeepers, and we needed to give people a way forward that went beyond a quick conference Q&A but still didn’t promise individualized legal advice. Some open educators felt unprepared to analyze fair use in particular contexts. Many felt apprehensive about fair use as a whole, often based on anxieties grounded in copyright folklore left over from the era of Napster and LimeWire. Strikingly, many institutional gatekeepers felt unable to make broad, uniform decisions about whether and how to acknowledge fair use at all. While they recognized that some authors were in fact relying on fair use sub rosa, without any tool for systematically understanding and applying fair use they felt that their options were either “allow anything” or “(pretend to) allow nothing.”

Of course, the reality is that every textbook relies to some extent on fair use. It would be practically impossible to build a textbook – certainly a good textbook – without quoting anyone, critiquing anything, or illustrating ideas with text, images, music, or other materials from the real world. Creating anything, including OER, is not a closed book exam. Good pedagogy explicitly builds on the work that has come before and great pedagogy connects to the real world and the lived experiences of the learners it is meant to engage.

Our job, then, was to understand what type of guidance the community needed in order to find a happy medium between “no fair use allowed” and “anything goes.” Fortunately, we had a great tool for exactly this type of work: the Codes of Best Practice in Fair Use. For two decades, the Codes of Best Practice have proved to be an effective tool for many communities to document the repeated professional situations in which they can and must rely on fair use. The Codes are built on a framework that aligns fair use decision making with both the professional mission of the creators and the predictable legal principles of fair use law. These Codes have worked for such disparate communities as documentary filmmakers, librarians, poets, and dance archivists, just to name a few.  

As when creating past Codes, we began with a series of interviews with stakeholders across the community. These interviews helped us understand where questions about fair use were creating friction for OER creators, where authors were regularly relying on fair use, what parallel concerns such as accessibility and equity demanded attention, and finally where OER creators were getting information, advice, or even hard rules about the copyright decisions they were making. By early 2020 we felt ready to begin the focus groups that are the signature work of creating Best Practice documents. We felt inspired, connected, and ready to go. Nothing could stop us now . . .

Obviously 2020 didn’t go the way anyone expected, and we paused the process to support educators making the rapid move to fully online instruction with a series of webinars on building resilient materials for teaching and learning. This series also began with a question: “can I read aloud to my students in an online classroom?” The answer, of course, is “reading is most definitely allowed!”

Significantly, what we thought would be a brief detour turned out to be a critical reminder for all of our work, especially the Best Practices: “it’s always an emergency for someone.” While the pandemic brought into focus acute questions about rapid shifts in pedagogy and making do with substandard wifi, for many learners those challenges are chronic and exist beside and in the context of systematic injustice, inaccessible design, and deep digital divides. Relying on fair use as a tool to enable access seemed urgently necessary in that moment of crisis. But those needs are no less urgent and fair use is no less essential for students who face perennial challenges based on inequity and inaccessibility. 

As we returned to developing the Code, this core principle continued to animate our work and to resonate deeply in focus group discussions, particularly when we discussed the inadequacy of linking out rather than relying on fair use to reliably incorporate materials. By the late fall we had completed eighteen focus groups and were pleased that our outstanding team of legal reviewers enthusiastically supported the document we facilitated in partnership with the open education community. 

As we celebrate Fair Use Week 2021 we’re excited to share the Code of Best Practices in Fair Use for Open Educational Resources. As with all of the Codes, this resource describes an approach to reasoning about the application of fair use to issues both familiar and emergent but does not provide rules of thumb, bright-line rules, or other decision-making shortcuts. Using the Code to develop OER is also not a closed book exam. Instead, it is designed to empower you to bring together a team of educators, librarians, publishing experts, and others to develop resilient, inclusive OER that engages with and reflects the work that has come before and the world that learners are preparing to enter.

You can learn more about what the Code says, how it works, and how it fits into a global body of educational exceptions in this recorded webinar. We’re also developing a series of community-specific events for open educators, librarians, and legal gatekeepers such as offices of general counsel over the coming weeks. We invite you to work with us to develop guidance and models for applying the Code in specific disciplines and communities through workshops and project development. We’re just getting started with the really fun stuff and we know your questions and real world examples will help make this resource even more meaningful and exciting.

 

Meredith Jacob serves as the Assistant Director for Academic Programs at the Program on Information Justice and Intellectual Property (PIJIP) at American University Washington College of Law. Her work includes student outreach and advising, curriculum coordination, and academic research and advocacy. Currently her work also includes research and advocacy focused on open access to federally funded research, flexible limitations and exceptions to copyright, and public interest in international intellectual property. Previously, Meredith worked with state legislators on a variety of intellectual property and regulatory issues affecting pharmaceuticals and the privacy of prescription records.

Will Cross is the Director of the Copyright & Digital Scholarship Center in the NC State University Libraries, an instructor in the UNC SILS, and an OER Research Fellow. Trained as a lawyer and librarian, he guides policy, speaks, and writes on open culture and navigating legal uncertainty. As a course designer and presenter for ACRL, SPARC, and the Open Textbook Network, Will has developed training materials and run workshops across the US and for international audiences from Ontario to Abu Dhabi. Will’s current research focuses on the relationship between copyright and open education. In addition to this project he serves as co-PI and co-developer of the IMLS-funded Library Copyright Institute

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

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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

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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

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

Can Fair Use Survive the CASE Act?

by Kenneth D. Crews

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

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

 

 

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

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

 

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

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

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

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

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

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

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