I ran across this Patry quote today that I enjoyed:
“[T]he drafting [of Section 110(2), the TEACH Act] is so ugly that it certainly supports the carbon-dating theory of amendments to the Copyright Act: the vintage of an amendment can be determined by its prolixity and resemblance to a poorly drafted contract, the more prolix and poorly drafted the more recent the amendment.”
— Patry on Copyright, s. 14:35 (p.14-72)
For Fair Use Week, I offered a small “fair use” quiz to colleagues. I listed a dozen or so different scenarios, taken from famous or recently-well-publicized fair use cases, and made a simple paraphrase of the case, with a “fair use” or “license it” choice. At the end of the survey (which was anonymous), I posted the note: “Surprise! All of these uses were found to be fair use by US courts,” and gave a brief citation to each case. (Plus, the usual lawyerly cautionary note that these were not enough facts to really assess the fairness of the use, but that at the least, I wanted folks to know that these facts could give rise to a finding of fair use.)
The poll was never intended to collect data in any reliable way — I drafted it in about half an hour, phrased things in ways that were sometimes intended to be counter-intuitive or provocative, and of course left out much nuance. I intended it as a consciousness-raising exercise, and hope it was useful in that regard: Recognizing how broad fair use can actually be.
It turns out to have also been useful to me, in giving me a bit of a copyright agenda. So, I thought I’d start by talking about each of these cases in context. I’ll do one blog post for each “hypothetical”.
Paraphrasing a famous quote from a novelist, in a commercially released film. Almost a quarter of respondents thought this should be licensed. The Faulkner estate agreed, actually, and sued Sony Pictures for the paraphrase of William Faulkner’s quote in Woody Allen’s “Midnight in Paris”. The District Court disagreed, holding Sony’s use to be a fair use in July 2013. Faulkner Literary Rights, LLC v. Sony Pictures Classics, Inc., et al (N.D. Miss. July 18, 2013). (Eriq Gardner for the Hollywood Reporter covered the case, and gives a fair write-up.)
The Quotes
The quote in the movie (“Midnight in Paris”) goes like this:
“The past is not dead! Actually, it’s not even past. You know who said that? Faulkner, and he was right. I met him, too. I ran into him at a dinner party.”
And the original quote, in Faulkner’s Requiem for a Nun, is certainly one of Faulkner’s more memorable quotes:
“The past is never dead. It’s not even past.”
Reasonable People Can Disagree About Fair Use
This brings up my first point, which is that reasonable people can disagree about fair use. While I think this was a pretty obvious fair use case, I don’t think the William Faulkner people were completely crazy, or arguing in bad faith, to make their argument. I imagine that the thinking, on the part of both the Faulkner estate and 24% of my colleagues, was that, “Sony Pictures is making a highly commercial use, and the Faulkner Estate would have been happy to license this use. So that’s the two most important fair use factors, and the second factor — the nature of the copyrighted work — also favors Faulkner.”
But Judge Mills of the Northern District Court of Mississippi held otherwise, and not because he was a fan of Woody Allen, either. (Judges and lawyers like to drop snide comments into footnotes, which I find highly amusing. Here, Judge Mills dropped a footnote on the title, “Requiem for a Nun,” in which he responded to Sony’s characterization of the Faulkner work:
The court disagrees with Sony’s characterization of Requiem as being “relatively obscure.” Nothing in the Yoknapatawpha canon is obscure. Having viewed the two works at issue in this case, the court is convinced that one is timeless, the other temporal.
I would not go so far as to say that William Faulkner is deified in the South, but it was perhaps not Sony’s best decision to minimize one of Mississippi’s favorite sons, to a court in Mississippi.)
The Court gave short shrift to the de minimis doctrine, which I think was a lost opportunity to make a nice decision out of the most obvious call, but instead considered the de minimis issue within the context of fair use. Ultimately the Court held that “Sony’s use in this matter was de minimis“. (slip op. p.15)
Factor One – Purpose and Character of the Use, and Factor Three, too
In considering the first factor, the Court quotes the Supreme Court’s Campbell case, discussing the Constitutional purposes of the factor, which contextualize the entire analysis:
“The central purpose of this investigation is to see… whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative. …
The goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”
Campbell, 510 US 569, 578 (1994). Campbell is the important case in which the Supreme Court effectively ratified the use of “transformativeness” in an analysis. Virtually all fair use cases of this nature will cite to Campbell at some point, and any case involving with two different creative works will have to grapple with it. The Court contrasts the “speaker, time, place, and purpose of the quote” in the two works, finding them “diametrically dissimilar” and “highly distinguishable.” (slip op., pp.8-9). Because the quotes are used in such different ways, the new use “undoubtedly” transformed the work.
The Court also thought the shift in medium from novel to a comedy film added to the transformativeness; I’m unconvinced by this particular analysis, but it’s important to note.
Having contrasted the way the quotes were used, the Court holds, “These factors coupled with the miniscule amount borrowed tip the scales in such heavy favor of transformative use that it diminishes the significance of considerations such as commercial use that would tip to the detriment of fair use.” (slip op. p.9) The case was won right there, with the Court finding the transformativeness and small amount taken to be so significant. But the Court goes on to note, “It is difficult to fathom that Sony somehow sought some substantial commercial benefit by infringing on copyrighted material for no more than eight seconds in a ninety minute film. Likewise, it is evident that this eight second clip serves as a thematic catharsis or apex in plot to neither Requiem nor Midnight.” (slip op. p.9)
The Court is sliding into the analysis of the third factor — the amount and substantiality taken — but these two factors are inextricably related to each other. It’s not just whether each factor goes one way or the other — the analysis is about how the factors relate to each other. Is the amount taken too much, in light of the purpose and character of the use? Or is it a reasonable amount?
Factor Two – Nature of the Original Work
The Court found the nature of the work to be “neutral”. That seems on its face to be bizarre — surely the Faulkner work is entitled to the strongest protections accorded to a highly creative work? Yes, but in a transformative use, this factor is much less important. Analytically, it’s a bit muddled to say that the factor is neutral rather than simply noting that it’s not very important; but the outcome is the same. This factor doesn’t really hurt Sony, and doesn’t help Faulkner — why? Again because of the first factor: The purpose and character of the use were highly transformative.
Factor Three – Amount Taken
The analysis here was quite interesting. The focus is usually on the “amount” taken, and sometimes courts consider the “substantiality”, as in the “heart of the work” doctrine. Even if a small “amount” was taken, was it the “heart of the work”, as it was in Time v. Nation, the Gerald Ford memoir case?
Here, the Court captioned this section “Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole.” Having already addressed the “amount” in its factor three discussion (a 9-word quote), the Court focuses this discussion almost entirely on the “substantiality” part of the analysis. Engaging in a bit of literary analysis, the Court considers whether Faulkner’s quote, which captures a theme on display throughout the novel, is “qualitative[ly] importan[t]” to the originating work as a whole. Noting the numerous times the theme was reiterated, the Court found here that the quote was merely a “fragment of the idea’s expression,” (slip op. p.11) after reminding us that the idea itself was not protectable under copyright.
Factor Four – Effect on Market
We know early on in the discussion of this factor that “the court considers this factor to be essentially a non-issue in light of the stark balance of the first factors weighing in favor of Sony as well as further considerations that follow.” (slip op. p.12)
But the Court goes on to note, with incredulity, that the market for Faulkner’s work could not reasonably be harmed by this use, and may have been assisted by the “homage” (slip op. p.13):
The court is highly doubtful that any relevant markets have been harmed by the use in Midnight. 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.
But those who thought Faulkner’s estate entitled to licensing revenues were certainly not seriously considering that Faulkner’s market for the novel was harmed by this use. Rather, they were considering the lost licensing revenue.
The reasoning here goes like this. “B is making a use of A’s work. A is willing to charge for that use, so B cannot claim fair use, because B could simply have paid A and gotten permission.” This reasoning bedevils fair use, in part because it seems so easy. Why not get permission, if you can?
Here’s why. Fair use cannot be available only if permission is denied. The asking of permission is its own harm to society in many cases, because it increases transaction costs for uses that simply are — fair. The social harms that could also flow from, for instance, requiring people to ask permission before including quotes in a critical review, would also be substantial.
There are numerous specific cases in which it would also simply be infeasible to ask for permission first. Rightsholders don’t exist or can’t be identified; time is of the essence; rightsholders are too numerous to reasonably reach out to them all; the rightsholder always says no; the rightsholder bears a grudge; it would infringe other important rights, such as privacy rights of students, to ask; and so on.
And finally, allowing “permission could be received and fair use only exists if there is no permission available” would basically allow the fourth factor analysis to swallow all the other factors. For a few years, some courts wrote opinions that way; but since the mid-90s, courts have increasingly turned back to the holistic analysis, interpreting all four factors in light of the first factor.
This court does not go into great detail about these potential social costs, or the problems with the circularity of the lost licensing revenue argument. Instead, the Court says, of the possibility of lost licensing revenue:
The court is doubtful that any discovery to this effect will prove fruitful since the court does not consider a copyright holder to be entitled to licensing fees for fair use of his or her work.
Other Claims
The Court then makes short work of a trademark claim (no possibility of confusion, and if there were, Sony has a First Amendment defense), and a commercial misappropriation claim (the Court refused to address it because all federal law claims had been addressed).
And that’s it — this case wasn’t a hard one for the Court, and paraphrasing a famous quote — with attribution! — was fair use. Even in a commercial work. Even if licensing revenue was potentially lost.
PDF of decision: Faulkner-v-Sony-NDMiss-2013
Next time I’ll take on a different fair use “hypothetical”, “ripped from the headlines,” as my first year Contracts professor Bob Berring used to say.
Originally published at Harvard’s Fair Use Week blog, Feb. 25, 2015.
Fair Use : A Virtual Anthem of Empowerment and Joy for Librarians and Educators
I WANNA SEE YOU BE BRAVE[1]
The American Library Association recently passed an interpretation of its Code of Ethics to clear up confusions about the line that says librarians “respect intellectual property rights.” This phrase was taken by some to mean that librarians must respect the rights of copyright owners, or even police users on behalf of copyright owners.
Keith Aoki, James Boyle, and Jennifer Jenkins, 2006, Bound by Law?, p.59. Available at http://web.law.duke.edu/cspd/comics/
This was wrong. ALA’s new Copyright Interpretation clarified the line because copyright isn’t just a one-way street — it’s a carefully calibrated balance of rights of owners and users, intended to “promote the Progress of Science and useful Arts.” (US Constitution, Art. 1, s.8, cl.8.)
Unfortunately, we see the same error over and over again in copyright. Librarians try to do the right thing; try to follow what they have been told is “the law” — but it’s a law that ignores the other half of copyright law: users’ rights.
In fact, what some portray as a cautious or conservative[2] approach turns out to be a radical re-invention of copyright as an absolutist regime, unlike virtually any other legal regime.[3] We see the results of this misguided “conservatism” all too often, and it can lead to real error when this approach conflicts with the fundamental mission of an institution. My own university fell into this trap recently, when it interpreted a government statute to block admission of Iranian students to specific graduate programs. That this policy would pose a conflict with the University’s greater mission of promoting academic freedom and inquiry was, unfortunately, not noticed until after the policy was announced and met with widespread criticism, both within the University and without. Administrators belatedly recognized the mistake in the unduly cautious and conservative approach to that statute, and adjusted course.
Assessing any law solely through the lens of risk assessment can create such conflicts. A better understanding of the need to balance mission risk with legal risk could help avoid this problem altogether. As Brandon Butler and other colleagues[4] have noted, we simply cannot avoid all risk, if we hope to function at all. For example, any time you invite someone onto your property, you risk a slip-and-fall lawsuit. But a University must invite people onto its property in order to teach, conduct research, and simply operate. So we must, all the time, consider potential legal risk, but also mission risk — our duty to fulfill our own mission, and the risk of not fulfilling it if we act out of fear. In fact, whenever I teach law, I am careful to distinguish different levels of ethical and prudential assessment: the legal, the professional, the institutional, and the personal.
So here’s where I’m going to channel Sara Bareilles: I wanna see you be brave.
I’M ALL ABOUT FAIR USE, NO FUD.[5]
In copyright, we might be tempted to take an institutionally conservative approach. “Damages in copyright are potentially so large! Fair use is so confusing! It’s hard for ordinary people to understand! Our licensing librarian thinks fair use is risky! There are so many technicalities!”
Fair use is none of these things. Copyright law doesn’t just protect fair use — it charges librarians and educators with the responsibility to use it. So let’s clear away some FUD:[6]
Similarly, the numerous special protections for libraries and nonprofit educational institutions are a signal to us. We get special rights throughout the Copyright Act — Sections 107, 108, 109, 110 … heck, even our college radio stations get special discounted royalty rates.[14] Our uses are specially listed in Section 107 as examples of fair uses: “teaching (including multiple copies for fair use)”, “scholarship”, “research”, and listed again in the first factor (“nonprofit educational use”). And Section 504(c)(2) is a classic example of Congress immunizing a party from risk in order to encourage them to take full advantage of their statutory rights.
What is this plethora of copyright goodness this telling us? By making good faith reliance on fair use virtually risk-free for educators and librarians, I’m pretty sure we’re being told: You can rely on fair use. Really. It’s okay. It’s there for you.
I have seen and appreciated this graphic for years, used by many educational institutions, but I have no idea who made it originally! If anyone knows, I’d love to hear from you.
OH, WON’T YOU TEACH WITH ME[15]
Electronic Frontier Foundation educational campaign from 2006, “Fair Use Has a Posse”.
The goal of copyright is “promote the Progress of Science and useful Arts.” Librarians and educators have special roles in the dissemination of information, so there’s good reason for our uses to be specially privileged in the copyright scheme. But librarians and educators don’t just have special rights under copyright and fair use — we have special obligations, too. Congress isn’t just giving away these special rights for free.
So what’s the catch? What’s the quo in this quid pro quo? The answer: We’re supposed to educate our users. In Section 108, the Higher Education Opportunity Act — over and over again we’re told to educate our users. Note that we’re not told to police our users, because we’re not in the best position to assess whether their uses are fair (and, because, intellectual freedom). But to educate them. So that’s our job. Education.
There you have it: It’s safe and easy to rely on fair use. It’s our job to teach about fair use, and it’s actually our statutory duty to rely on fair use. And, it’s our duty in the broadest sense of fulfilling our institutional missions, copyright’s general purpose, and librarianship’s embrace of intellectual freedom.
Really, there’s no reason not to be a fair use activist.
HAPPY
Fair use: It makes us all happy.[16]
“It might seem crazy, what I’m about to say
Fair use is here, it won’t go away.
Here come bad news, talking this and that.
Yeah, give me all you got; don’t hold back.
Yeah, well, I should probably warn you, I’ll be just fine.
Yeah, no offense to you, don’t waste your time.
Because I’m happy …”
https://www.youtube.com/watch?v=y6Sxv-sUYtM
Happy Fair Use Week, y’all.
———-
Thanks to Charlotte Roh, Kyle Courtney, and Brandy Karl for editing and comment.
[1] Quoting from Sara Bareilles, “Brave” (2013).
[2] I mean “conservative” here in the sense of moderator or cautious, resistant to change; not politically conservative.
[3] Even property law, which is often depicted as being absolute, has numerous third-party protective doctrines. Kevin Smith wrote a helpful blogpost about this last year, “Why is copyright different?”, March 4, 2013..
[4] My apologies — I can’t remember who I first heard make this very helpful analogy!
[5] Transforming “I’m all about that bass, no treble”, from Meghan Trainor, “All About That Bass” (2014).
[6] “FUD” is “fear, uncertainty, and doubt.”
[7] Rightsholders have lately taken to concern trolling librarians and educators in copyright hearings on Capitol Hill: “Fair use is so difficult for librarians. We can set up a nice licensing scheme where they pay us and don’t have to worry their little heads about fair use.” (My paraphrase)
[8] Yes, even primates! See Sean Markey, “Monkeys Show Sense of Fairness, Study Says,” National Geographic News, Sept. 17, 2003. If a million monkeys typed on computers, would they ever come up with something as crazy as 17 USC 112? As for elementary age children — my 6-year-old’s arguments about fairness ring in my ears every day.
The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was:
(i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords[.]
[10] See Pat Aufderheide and Peter Jaszi, 2011, Reclaiming Fair Use: How to Put Balance Back in Copyright.
[11] American University, Center for Media & Social Impact, “Best Practices in Fair Use”.
[12] Jonathan Band and Jonathan Gerafi, 2013, “The Fair Use / Fair Dealing Handbook”. The Jonathans surveyed the international landscape for fair use and similarly flexible approaches to copyright exceptions in 2013.
[13] Jim Neal, “Fair Use Is Not Civil Disobedience: Rethinking the Copyright Wars and the Role of the Academic Library”, ACRL 2011.
[14]17 USC 118, “Use of certain works in connection with noncommercial broadcasting”. See the Copyright Royalty Board for the current 2012-2015 rates for college radio, and for the proceedings for upcoming rates. http://www.loc.gov/crb/
[15] Transforming lyrics from “Stay With Me”, from Sam Smith (2014).
[16] Minor transformation of Pharrell Williams, “Happy” (2014).
Laura Quilter is the Copyright and Information Policy Librarian at the University of Massachusetts, Amherst, Libraries. Laura has a M.S. in Library and Information Science (University of Kentucky, 1993) and a J.D. (UC Berkeley School of Law, 2003). She has taught as an adjunct professor at Simmons College, and at the Samuelson Law, Technology and Public Policy Clinic at the UC Berkeley School of Law. She has consulted with libraries and non-profits on copyright, privacy, and other technology law concerns. She has also worked as a librarian and assistant professor at the University of Illinois at Chicago, and has lectured and taught courses to a wide variety of audiences. Laura’s research interests include copyright, tensions within teaching and scholarly communication, and more broadly, human rights concerns within information law and policy, including privacy, access to knowledge, and intellectual freedom.
It’s Fair Use Week! (see more posts! … #FairUseWeek)
For this week, I’ll be posting some comments highlighting cases and trends in fair use.
For my first post I thought I would look at parodies, and their role in transforming fair use law itself. Today we think of parodies as practically a paradigmatic fair use, but they haven’t always been viewed so positively. The history has been rather mixed — judges’ sensitivities towards the lewdness and disrespect within parodies has sometimes trumped their appreciation for the political or social commentary of the parody. Call me a legal realist, but sometimes that distaste disfigured the court’s approaches to fair use.
Consider these earlier negative approaches to parodies.
In Benny v. Loew’s Inc., 239 F.2d 532 (9th Cir. 1956), aff’d by an equally divided Supreme Court, 356 U.S. 43, the 9th Circuit considered Jack Benny’s parody of a popular play, “Gas Light” — which was so popular that the phrase “gas light” came to represent actions like those of the villainous protagonist, who attempted to drive his wife insane. The court, discussing the “so-called doctrine of fair use”, summarily held that presenting “a serious dramatic work … with actors walking on their hands or with other grotesqueries” was not a fair use. Too much of the original was used, and the Court seemed critical of the “grotesqueries”, giving little weight to any commentary they added.
In Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978), the defendants created a comic book, “Air Pirates Funnies”, which depicted various Disney characters fraternizing in a manner that Disney Corp. felt to be un-Disney-like. (But where do Huey, Dewey, and Louie come from? And what else could explain Goofy but drugs?) Disney sued for copyright and trademark infringement, and the court, in an important “character copyright” case, found that the Disney characters were copyrighted. The court deemed that because the parody focused on the characters’ “personalities, their wholesomeness and their innocence”, the use was not fair use, because it took more of the graphics than was necessary. It’s hard for me to believe this decision would go the same way today.
And 20 years later, in Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 924 F. Supp. 1559 (S.D. Cal. 1996), aff’d, 109 F.3d 1394 (9th Cir. 1997), the 9th Circuit again weighed against parody, holding that Dr. Seuss’s copyrighted expression (rhyming schemes, and iconic “hat”, for example) was taken by the authors of “The Cat Not in the Hat”, which told the story of the O. J. Simpson allegations and trial in a Seussian style. The Court determined that the authors were targeting O. J. Simpson, and just using Dr. Seuss — not targeting his art directly — and so infringed Dr. Seuss’s copyright. The reverence for Dr. Seuss is evident here, too, and it’s hard to escape the conclusion that the court’s analysis was tainted by personal disapprobation of the parodist.
But certainly it wasn’t all doom and gloom for parodies. Many courts did deem parodies to be fair uses — for instance, Berlin v. EC Publications, Inc., 329 F.2d 541 (2d Cir. 1941), which found fair use for a collection of Mad Magazine parody lyrics “to be sung to the tone of” various popular songs; and Elmsmere Music, Inc. v. National Broadcasting Company, 623 F.2d 252 (2d Cir. 1980), in which Saturday Night Live portrayed the town fathers of the Biblical town of Sodom singing “I Love Sodom” to the tune of “I Love New York”. The Elmsmere court affirmed, noting that, “in today’s world of unrelieved solemnity, copyright law should be hospitable to the humor of parody.” In yet another music parody case, Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986), the 9th Circuit deemed that “When Sonny Sniffs Glue”, a parody of “When Sonny Gets Blue” was a fair use; the parody only took enough to conjure up the original.
So between the cases that were hospitable toward humor, and the others that took a rather dour and critical approach to parody, the general state of the law on parodies was uncertain to say the least. Numerous questions abounded for the anxious parodist. Could commercial parodies be considered fair use? How much could be taken? How significant was the difference between “parody” (a work targeting another work) and “satire” (a work targeting society more generally)? Did incorporating lewdness into a work make it more, or less, likely to be found fair use?
There were no easy answers, and the regular back-and-forth in the courts on parodies eventually wound up in the Supreme Court, which in 1993 granted certiorari on the Campbell v. Acuff-Rose case, to determine whether a “commercial parody could be a fair use.” In Campbell, the members of 2 Live Crew were accused of copyright infringement for its parody of Roy Orbison’s “Pretty Woman.” 2 Live Crew (Luther Campbell) argued that their work was a parody of the original, and thus protected as a fair use . Acuff-Rose (Roy Orbison’s record label) argued that because 2 Live Crew’s version was commercial, it could not be a fair use; the 9th Circuit agreed with Acuff-Rose, finding copyright infringement.
The US Supreme Court granted cert. in 1993, and held oral arguments in late 1993. (You can listen to the oral arguments at Oyez, a wonderful site dedicated to Supreme Court jurisprudence. The shift in style of oral argument in 20 years is marked.) In March 1994, the Supreme Court issued its opinion, which unanimously reversed the harmful presumption that commercial uses could not be fair.
But it did a lot more than that, and in what seemed at first to be a fairly modest and unassuming way (characteristic of its author, Justice David Souter). In its unanimous opinion, the Court cited to a number of experts on copyright, including Judge Pierre Leval’s 1990 article, “Toward a Fair Use Standard”, 103 Harvard Law Review 1105 (1990). The passage bears repeating:
The first factor in a fair use enquiry is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 107(1). This factor draws on Justice Story’s formulation, “the nature and objects of the selections made.” Folsom v. Marsh, 9 F.Cas., at 348. The enquiry here may be guided by the examples given in the preamble to 107, looking to whether the use is for criticism, or comment, or news reporting, and the like, see 107. The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely “supersede[s] the objects” of the original creation, Folsom v. Marsh, supra, at 348; accord, Harper & Row, supra, at 562 (“supplanting” the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Leval 1111. [internal citations omitted]
This simple citation to Leval on “transformativeness” has arguably transformed copyright law. Leval’s article was well-reasoned and well-regarded — you should read it, if you haven’t. In puzzling through his own fair use cases, Leval crystallized much earlier fair use jurisprudence on productive uses under the rubric of “transformativeness”, arguing persuasively that transformative uses fulfill the Constitutional purposes of copyright, and should thus be favored. The U.S. Supreme Court, citing to Leval here and in several other places throughout Campbell, effectively ratified the “transformativeness” approach.
The transformativeness approach has created solid ground for numerous productive uses, including search indexes (Kelly v. Arriba; Perfect 10 v. Amazon.com; Perfect 10 v. Google; Authors Guild v. HathiTrust; Authors Guild v. Google); uses of works for historic recontextualizations (Bill Graham Archives v. Dorling Kindersley; SOFA Entertainment v. Dodger Productions); uses of works in databases to detect plagiarism (A.V. v. iParadigm); appropriation art (Prince v. Cariou; Morris v. Young) — and that’s just a few topics off the top of my head.
“Transformativeness” has been criticized recently, by copyright holders and even by the Seventh Circuit (Kienitz v. Sconnie Nation). But in some sense, the criticisms are less about whether the doctrine is correct or not, and more a complaint that the concept has been too successful. In fact, the reason that the “transformativeness” analysis has become so influential is because it so successfully captured the essence of what courts must do in a fair use analysis: Assess and support the underlying purposes of copyright law, to “promote the Progress of Science and useful Arts.”
So, at the beginning of Fair Use Week 2015, a toast to Judge Leval, Luther Campbell and the 2 Live Crew crew, and Justice David Souter, for transforming fair use, and helping to “promote the Progress”.
Just a reminder to all who signed up: We’ll be hosting our first UMass copyright bootcamp on January 13 and 14th, from 10am to 3pm. We were so over-subscribed on the 14th that we added another session on the 13th, and thanks to all who helped us by swapping sessions to accommodate those who did not have date flexibility.
See you next week!
Authors Guild v. HathiTrust appears to be settling the sole remaining claim — whether there were any plaintiffs left (after the Authors Guild was rejected as a plaintiff) to challenge the library preservation copying uses of HathiTrust
Links:
As predicted, the 11th Circuit declined the opportunity to grant an en banc review in the GSU case (Cambridge University Press v. Patton/Becker). [An en banc review is a review by all the judges of the Circuit, of a decision by a normal appellate panel of 3 judges.]
The next decision faced by the publishers (and their CCC/AAP funders) will be whether to file a cert. petition to ask the Supreme Court to hear the case. If they elect not to (or if they do and it’s rejected, as would be highly likely), then it’s back down to the District Court, and I anticipate settlement discussions would begin in earnest. I continue to think there’s no real mileage for the publishers/CCC/AAP to go back to the District Court, so anticipate eventual settlement.
Hi copyright geeks,
A few months ago, Judge Kozinski wrote an opinion giving an actor a copyright in her performance. This was in the Garcia v. Google case, in which Cindy Garcia sued for copyright infringement, after being tricked into a performance in the “Innocence of Muslims” film, which led to the Benghazi riots … Judge Kozinski (for a 3-judge panel) agreed Garcia had a copyrightable interest in her performance, and granted the injunction, a decision wihch created a furor in the copyright world. The 9th Circuit agreed to re-hear the case en banc, meaning, with a large panel of 11 jurists. The oral arguments were webcast today and are viewable. They were highly entertaining, I think, even if you are not a copyright nerd.
http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000006878
You can also read the twitter hashtag feed at #garcia9th . (If you’re watching, Judge Kozinski, who wrote the 9th Circuit opinion granting a copyright and an injunction on that portion of the film, is the white-haired guy who speaks with an accent; Judge McKeown is the brown-haired woman asking most of the rest of the questions.
If you haven’t seen an oral argument before, this is a fun one to start with.
Cheers,
Laura
notes to UM5/copyright-l
I attended the Authors Guild v. Google hearing in New York last week. The Second Circuit will issue an opinion, likely some time in the next 6 months would be my guess, and it’s also likely that this will be the dispositive final fair use decision in the Authors Guild v. Google case.
I posted my transcript-style notes on my UMass blog at https://websites.umass.edu/lquilter/2014/12/10/authors-guild-v-google-notes-from-the-hearing/ .
My briefest summary is that (A) I think it likely that the 2d Circuit will affirm the lower court’s fair use holding; (B) I think it even likelier that if A, then the Authors Guild will file for Supreme Court review but not get it.
Slightly less brief: The panel was comprised of three judges: Leval, Cabranes, and Parker. Parker had written the HathiTrust fair use decision in the 2nd Circuit. Cabranes is famous (not for copyright); and Pierre Leval is a (THE?) rock star of fair use not just on the judiciary but generally. Leval wrote an article that reshaped the entire field of fair use, and gave us the “transformativeness” analysis that is such a large part of fair use these days.
Leval led the questioning and was quite interested in Google’s contracts with the libraries, and how the libraries are using the copies, and whether the copies would be vulnerable to “hacking” in the libraries. My sense is that the core questions of fair use are already resolved, in Google’s favor — the indexing is transformative; the commerciality of Google’s use is irrelevant; the snippet displays and full-text indexing are not too much given the transformative purpose. So the questions the panel was exploring were aimed at uncovering anything that would put a kink in their analysis, or helping them to flesh it out.
Further reading
I attended last week’s hearing in the 2d Circuit. Below, I post my detailed notes (taken long-hand!) from the oral argument itself. See this separate post for my thoughts about the hearing.
* Authors Guild
* Google
* Authors Guild response
Panel: Cabranes (telepresence), Parker, Leval
Attorneys: Smith arguing for Authors Guild [AG]; Waxman arguing for Google [G]
* LEVAL — There’s nothing else on the calendar, so we can go 30 minutes on each side.
AG – The District Court erred in finding fair use. I readily acknowledge HathiTrust can be transformative although we preserve opposition to that for other purposes — but there are multiple reasons this case is different. First & foremost, this is “quintessentially commercial” — there are “billions and billions of dollars in revenue.”
LEVAL – [interrupts] Distinction b/we noncommercial and commercial fair use but Campbell etc are all commercial, making a profit. So I would be surprised if you were going to win a case on this.
AG – This is different in kind. This is not Koons or a parody.
LEVAL – Big profits dwindle into small profits. Newspaper sales are dwindling.
AG – …
LEVAL – If what they do doesn’t cause any harm to copyright owner why does it make a difference if it’s profitable — this is a valuable research service.
AG – There are two market harms. One, sale of the original work because Google displays the text of the book. Two, loss of opportunity to be compensated for inclusion in database altogether. Going back to Texaco, Campbell. This is not parody. This is a new form of a derivative work, in a for-profit context.
Google has a Partner Program, with 2.5 million books licensed. Amazon is also doing this. Both asking permission. The record show that Amazon’s program was stunted because of Google. Microsoft was digitizing until Google Books came along and digitized without asking permission. Rule from Texaco and Campbell about whether this is the kind of use licensed — well, it is. Market exists.
LEVAL — Pretty different from Texaco. 80 scientists, photocopying, multiplying number of copies, for all purposes.
AG – Second Circuit emerging market likely to be harmed — emergence of a licensing market that Google decided for some reason not to use for 4 million books. Google would say that their use is so transformative that the market harm is irrelevant. But the test is not transformativeness, but …
LEVAL – This strikes me as not a very useful test because no matter how transformative you will always find someone willing to pay a price to avoid a hassle. There would always be someone. So this would eliminate fair use. Consider newspaper reviews in the NYT — it might be easier for them to pay a license too.
AG – The question is do we need to go to fair use. Does use go into the unlicensed fair use bin. There is a contradiction in Google’s position — they talk about great public benefit, but —
LEVAL – Do you have any cases on if someone is willing to pay?
AG – Campbell is right there. Also Texaco. In Cariou this court said the standard is traditional, reasonable, or likely to develop. Goes to practicality and likelihood that the use will be developed. We want to reward people who make these books, especially in a world in which other revenues are shrinking — If we say these poor index companies pleading poverty don’t have to pay here — why? they’ve paid 4 million times already.
LEVAL – Libraries perhaps are less sophisticated in technology to protect against hacking. Even if Google is fair use, having multiple copies out there, as in Texaco multiplied copies, or if more vulnerable, could have very detrimental effect on the market.
AG – Your Honor, thank you for raising that. Not many restrictions by Google on libraries for example with security. But Google used these copies as CURRENCY — “the quid pro quo can itself by fair use” — HathiTrust did — but that doesn’t supply an answer as to why Google can use these copies instead of its money as an inducement to the libraries.
LEVAL – I’m not following you. Use by libraries of copies for research purposes was transformative.
AG – Princeton in the 6th Circuit coursepack cases — don’t judge fair use by end user’s goal. Leaving aside that point once you have all these copies — there’s no restriction. Stanford agreement allowed them to distribute up to 10% to any one user —
[Parker is sitting forward now. Cabranes is flipping through briefs.]
LEVAL — Stanford agreement would permit any number of students to read the book at the same time.
AG — That’s my understanding. Google didn’t do anything to limit what was done with these copies.
LEVAL — is it Google’s responsibility …?
AG – If Google is justifying it on library uses then they have to assume responsibility.
PARKER – What do you mean by assume responsibility?
AG – 2.7 million books, used as currency.
PARKER – Any provisions in documents that restrict contours of the program? We know for today’s purposes what the program looks like but what’s to keep it from changing? … They could double what they provide?
AG – Not just this user but every user. Once you legislative from bench instead of Congress — lots of different …
LEVAL — You’re not suggesting someone else would be prevented …? 8 page snippets instead of 2 page snippets?
AG – It’s the principle. Everyone will try.
PARKER – You’re not practically suggesting we wait around for Congress to address this complicated issue.
AG – Far be it from me to stand up for Congress. We’re not suggesting shut it down; just establish a royalty stream. If you conclude as I would that legislative solution is more rational than fair use.
LEVAL – Anything in contours of this program to prevent digitization of a hot new Harry Potter book?
AG – Most of newer books are in Partner Program. They would probably work a deal. Most of these are in copyright but out-of-print book rights have reverted from publishers that Google can deal with, to authors.
LEVAL – So you’re telling me my concern about hot new books is not relevant?
AG – If you approve this it could be a problem.
PARKER – Remind me — provision if I’m an author and want my work excluded – what is the mechanism?
AG – I’m unclear. At a minimum there is no way to get it out of the database. An author can request to stop displaying snippets, but not out of the search engine.
LEVAL – Author exclusion doesn’t affect library copy.
AG – Library bought it and now has second copy; nothing in contract to affect. ….
The original idea of snippets was it would not affect sales. But we do not always read books in linear fashion beginning to end.
LEVAL – But recipes, dictionaries, are not included.
AG – Google makes their own judgment but others are vulnerable. In the old days someone would have to go to the library, look it up in the catalog, pull it off of the dusty shelves, be exposed to the whole text — now they go to Google Books. Don’t assume the snippets are harmless. They will diminish the use. They are a double-edged sword — a Grand Rapids librarian says they will help locate and identify a book but someone else they will meet the need. Judge Chin ignored this. There is no evidence that this helps people sell their books. No testimony presented.
LEVAL – You have consumed your half hour. Do you want time to respond?
AG – I would enjoy coming back.
CABRANES – Judge LEVAL goes for the jugular; I go for the capillaries. This is a redacted version. What is the theory of the redactions here — can you tell me without violating some principle?
AG – Protective order.
CABRANES – What’s the theory of the protective order.
AG – Not sure; it was done at trial. I will speak to trial counsel.
LEVAL – Let’s just ask counsel on both sides if they are harmed by referring to redacted material.
AG – No objection.
[Couldn’t make out if G’s attorneys said anything.]
G – Three things fundamental to this case. First, the uses here quintessentially Promote the Progress of Science and the Useful Arts. Second, collaborations between Google and the libraries to enable each to make a transformative and fair use that neither could do alone. Library books, Google scanning and optical technology. Third, there is NO evidence of ANY market harm.
LEVAL – As far as I know no evidence of market harm to books — correct. But plaintiff is arguing right to index and develop that market.
G – Yes they are making that argument. It was expressly rejected in HathiTrust. Quote: “… market for licensing books for digital search could develop in future …” No evidence in this case of any such market. They cite Amazon’s 20% display, which would be substitutional, but wasn’t paid. Expert testimony is no one would pay authors for search.
LEVAL – Amicus about licensing in Europe.
G – About reproducing the entire book. Similar to proposed class action settlement. No examples anywhere of paying even one penny for indexing. See pages 1503-1505, 1478 of Joint Appendix.
PARKER – How much was spent?
G – Well over a billion … no, more than $125 million.
PARKER – Does the record reflect how Google gets its money back?
G – No. Partner search had ads, but it generated so few revenues that Google dispensed with it.
CABRANES – This is a charitable enterprise?
G – No, no.
CABRANES – This particular program is nonprofit?
G – That’s not our contention.
CABRANES – Is there any suggestion in the record of Google making money?
G – Very little in the record about Google making money.
CABRANES – Is there anything in the record for Google to make profit?
LEVAL – No ads?
G – If you go to Google Books or general Google to search for a book by Pierre Leval, you will see ads for products. If you then click-through to Google Books you will see no ads on those pages. Google makes no money from the “buy this book” links.
PARKER – What’s to prevent Google from festooning ads on this at some point in the future?
G – Google could change it in all kinds of ways but that would be a different program. Some other program would have to be calculated differently and assessed separately. Google Book Search has an incredibly transformative purpose — to enable readers to find books. If Google makes money that does not distinguish it from most other users that make fair use. If it promotes the progress, if it’s fair use, then it’s irrelevant if it’s making money. In fact you can argue that if there is no possibility of money, eyeballs, that Google would not have developed this service that revolutionized the way people find books.
PARKER – In class certification you said there should be individual analysis; here program analysis. What changed?
G – In our view the entire Books Program is fair use, but if you don’t agree with that, then you have to look at it one at a time. Other courts — HathiTrust full text search engine & provision of copies to disabled people was fair use across the board. If court found otherwise then have to distinguish between for instance the MetroNorth 2010 schedule compilation and other books.
Google contract with the libraries required uses consistent with copyright law. If they are not, then that’s another case.
LEVAL – Careful restrictions at Google to make sure there is not too much seen. Snippets, limits, etc. Safe to say to avoid copyright infringement problems. But what if copies you give back to libraries are vulnerable to infringement? Misuses or vulnerabilities to hacking?
G – Again address security with respect to HathiTrust.
LEVAL – This is different. Hacking was merely speculative in HathiTrust; plaintiffs raised the issue but didn’t provide any evidence. Here plaintiffs have shown possibilities.
G – Google’s own system their own expert said top caliber. This program has been in effect for 10 years. No hacking into HathiTrust corpus. Makes sense because if you want to hack plaintiff Jim Bouton’s book you could buy it for $1.99 on Amazon. When you buy electronic it goes over Internet with no security. Idea of hacking is completely fanciful.
LEVAL – Digital copies are sufficiently available that hacking is not a problem?
G – Latest Harry Potter example — Google doesn’t do books within 2 years of publishing.
LEVAL – Is that in the library agreements?
G – It’s our policy. Snippets is for factor 3 & 4. But the point is to let people find books. Displaying 2, 20, 30 pages doesn’t enhance that transformative case. Even if transformativeness or market factor were only relevant — … in this case focus on the record. 3 individual plaintiffs each testified — 1421, 1434, 1437-1438 — no last sales. Also testified snippet view does not substitute — 1421-1424, 1439. So literally nothing on the other side.
LEVAL – At least one of the university agreements would permit any number of students to read the book.
G – Stanford.
LEVAL – Why is that not Texaco?
G – It would be contract breach if they violated the law. The fact that it’s not a contract breach doesn’t mean it’s fair use. Ambiguous language in contract, but language still says within federal law. 11th Circuit GSU ereserves like coursepacks. That was circ not transformative — like copyshops. What we have here — let me go to copyshops — Princeton highly divided en banc 6th was skeptical about fair use. Every factor different here [runs through factors] – here Google assisting libraries to make transformative fair use in HathiTrust.
CABRANES – Concerned about something as vulgar as money. Recognizing as Leval said money may not matter. If Google invested $100 million for profit.
G – Will stipulate.
CABRANES – Are they trying to develop a shareholder derivative action?
G – Far be it from me to encourage litigation against my client.
CABRANES – Very odd to do something just to be helpful.
PARKER – Google wants to help people find books.
G – Look at the agreements with libraries. Michigan earliest agreements — a collaborative enterprise to let each party make its own transformative uses. … Your Honor went to Google’s motives. Google wants to do this to bring readers, improve Google Translate — there’s no money there either. Mr. Smith is making a point that is astonishingly absent in the trial record — no evidence in the record that copies were given to libraries to save money. The project was conceived of by both sides to make transformative uses neither could otherwise do. We ask that you affirm the district court’s opinion across the board.
CABRANES – What pages?
G – Page 594. Quotes, “Google & … mutual interest in making info to public … accordingly, non-exclusive agreement.” This would be a different case if Google paid $100 million — still a fair sue case — but it badly distorts …
LEVAL – Will you tell me what page for the 2 year restriction?
G – I will, anon.
AG – This case is on summary judgment in Google’s favor, so they have the burden of proof. Page 1290 (1219?) the motivation — see Authors Guild Paul Aiken.
– W of harm to sales caused by snippets. Like saying we haven’t proved a negative. Some college student that looked up ….
LEVAL – Can a rightsholder exclude themselves from snippet view?
AG – Yes. Fiction, history, all have same features. Waxman referred to no harm. 1421, 1434, 1439. “No way of knowing” is not the same as “no harm”.
CABRANES – Page 58 you look for a broad order from us to let District Court seek remedy etc. What do you want from us?
AG – Reverse and order back to District Court. With respect to remedy the right resolution is not to shut it down but monetized, damages and ongoing royalty, licensing going forward.
CABRANES – Monetization. You’ve had extensive settlement discussions. You could do … So you will be satisfied with a sum certain that would conclusively ….
AG – Similar to YouTube case I argued last year.
CABRANES – Monetization in settlement agreement with J. Chin.
AG – Yes, there was money as part of it — $45 million if I recall correctly.
CABRANES – Question about the state of the record. Discovery is now completed?
AG – Yes. … Other liensing arrangements parallel. It’s not fair to say markets as he does but is a database licensing market.
LEVAL – You suggested earlier settlement involved different use by Google.
AG – Yes. Settlement was rejected because Google had power to keep adding without rightsholders ever being caught up.
CABRANES – What explanation for Judge Chin’s change of gears? …
AG – No speculation. Signal from this panel. He had a different view earlier.
Reality is Google makes money from search results. … They had to make sure ….
Concern about copies in libraries is a real one. 400,000 scholarly articles downloaded by an activist a few years ago. This is real.