Week 3: Copyright 3: Fair Use > Fair Use > The Fair Use Defense
- This lecture, we’re going to talk about fair use and copyright.
- Fair use intersects very carefully with, or very closely with, copyright policy.
- So fair use comes from Section 107 of Title 17, the Copyright Act.
- So what the statute says is the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, including multiple copies for classroom use, scholarship, or research is not an infringement of copyright.
- Section 107 continues on to provide factors, four factors, which dominate the way that we think about fair use.
- These four factors are the purpose and character of the use, including whether such use is of a commercial nature or for non-profit, educational purposes, the nature of the copyrighted work itself, the amount and substantiality of the work that’s been used as part of the use, and the effect of the use on the market for the original work.
- So the factors are, again, purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the market effects of the use.
- So fair use is a defense to infringement, not an exception or limitation on the copyright itself.
- So what that means- and this is really important to understand- is that in order to assert fair use, in order to not be held liable for infringement, you have the burden- you as the alleged infringer or the fair user has the burden of proving that your use is fair.
- News reporting, classroom teaching, scholarship, research- all of these are specifically mentioned in Section 107 as things that fair use is intended to help.
- So maybe one of the goals of fair use is to subsidize, in effect, of those types of uses.
- So we say that classroom teaching, scholarship, research, for example, you don’t have to pay for copyright infringement.
- So that’s one way to think about fair use is that what we’re doing is identifying a set of favored uses and essentially cross-subsidizing those.
- The other way to think about fair use, or another way to think about fair use, is as a relief valve for innovation.
- Fair use might be a way that we can allow innovation to move forward, to allow new technologies to move forward, not withstanding the fact that they might technically be infringing in some cases.
- We’ll talk more about how Sony exhibits a particular kind of fair use in a moment.
- So if I want to, for example, play music in my class to demonstrate copyright law, for example, I could get that license.
- Lots of people point to fair use as either enhancing or protecting free expression.
- Copyright, of course, because it is a right that allows copyright owners to prevent people from communicating in some cases, intersects with the First Amendment rights of free expression.
- That’s why fair use is there, that it’s there to help smooth over this conflict or potential conflict between the First Amendment and the copyright law.
Week 3: Copyright 3: Fair Use > Fair Use > Applying the Fair Use Defense
- So now that we know what fair use is and some of the goals behind it, the next question is, how does it work? How do you actually apply fair use in the real world? And I think the best way to do that is to simply go through a number of important court cases, use the four factors, and then at the end, let’s circle back and see if we can figure out any patterns of the way that the courts are applying fair use.
- So the first case I want to look at is the Harper & Roe versus Nation’s case.
- What The Nation did is got a pre-publication manuscript of this.
- Harper & Row, the publisher of the Gerald Ford autobiography, had actually sold the excerpting rights to Time Magazine to run shortly after The Nation article.
- They argued that this was copyright infringement, that what The Nation did was essentially copy elements, quotes, some direct quotes, some passages that were directly lifted from the Ford autobiography, and that that was copyright infringement.
- What the Court says is that the purpose of the use that The Nation made was to get a scoop, and that they were trying to basically sell magazines, sell newspapers, by creating sort of hype.
- It thought that that was a particularly important aspect, which was that because it was unpublished, that the author and owner, here Ford and Harper & Row, should have a broader right to control the public conversation and publication of the work than they might otherwise.
- The Nation argues that this has no effect on the market for the book.
- What Harper & Row argues is that it hurts the market for pre-publication excerpts of books.
- The Court says all these factors favor Harper & Row, and therefore there’s no fair use, that The Nation was indeed guilty of copyright infringement.
- So one of the things to ask yourself when you think about this case- I mean, this is the way the Supreme Court analyzed it- is whether you agree, is it not possible that you could actually make a perfectly fine argument using exactly the opposite approach and reach the opposite result? So for example, for purpose and character of the use.
- The reason that The Nation was interested in publishing parts of this autobiography wasn’t necessarily for commercial reasons, but it was because this is what The Nation does.
- This is precisely what they were doing, which is publishing comment on newsworthy facts, and therefore maybe this factor should favor The Nation.
- Maybe the fact that the public has great interest should weigh in favor of The Nation’s use rather than the unpublished nature weigh in favor of Harper & Row’s use.
- This seems like that when The Nation publishes an article describing what President Ford was going to discuss in his autobiography, that that might generate interest in the book.
- The Supreme Court said that the market was the market for excerpts, pre-publication excerpts of the book.
- If you look at it a different way and say, maybe the underlying work is the book itself, then the market would not necessarily be harmed, and it should favor The Nation.
Week 3: Copyright 3: Fair Use > Fair Use > Nature of the Use Element
- Sony created and distributed the Betamax, which allowed the purchasers to record TV shows.
- In particular, that time shifting, this idea that you can record a television show off the air and then shift it to watch it in a different time- which now of course seems entirely routine in a world of DVR’s and on demand and that sort of thing, but back in 1984 was pretty novel and innovative.
- All of the uses that the users of Betamax were doing, that would involve the recording and time shifting of TV shows, were authorized, not copyright infringement, and therefore, no indirect liability.
- So the court says that the purpose of the use for time shifting was noncommercial personal use and that that was in some sense transformative.
- What they’re saying here is that this noncommercial nature, this fact that what the users are doing when they’re recording these shows, is not intended to sort of be a direct substitute of the original product, but instead, it’s way of converting what was one good, which is a TV show that comes on a particular time, on a particular channel, particular night, et cetera, into something else, which is a more flexible entertainment product that they can watch at their leisure.
- The fair use weighs against them- weighs against fair use- and this factor favors Universal.
- The amount and substantiality used- in the time shifting context you use it all.
- In Sony, says there’s going to be no effect on the market for the TV shows because the users are simply time shifting.
- They’re not reselling the show, they’re not allowing others to see the show, it’s simply personal time shifting from one time to another.
- The court ultimately decides that this is fair use, time shifting is fair use.
Week 3: Copyright 3: Fair Use > Fair Use > Fair Use Analysis
- So a librarian or a research staffer at the company would identify articles that would be of interest to the engineers and researchers at Texaco and would reproduce them and essentially distribute them around the company- around that particular physical location in the company.
- We’re not reselling the articles in any way, not further distributing them beyond the four corners of the office at Texaco, and therefore it should be fair use.
- So the court works its way through the factors and finds that all of them favor the Geophysical Union.
- Because what was going on is that, if you called up the American Geophysical Union and asked for a reprint of the journal article, they would be more than glad to send you reprints for a fee.
- The court thinks that that factor favors AGU and is against fair use.
- Note how the court, by the way, sort of intersects factor two with factor four and then often the courts can seem to slide between these factors when it suits them.
- They could pretty easily prove and pretty easily show, and more importantly it was very difficult for Texaco to show that there was no effect on the market because there was a real market that the Geophysical Union had created that it could point to that was going to be harmed by the photocopying.
- This case is an important one because it stands for the proposition that even noncommercial copying, even what would seem to be internal, noncommercial, for research purposes only copying, can be actionable copyright infringement.
- The key factor the court pointed to was that it was an unpublished work and that there would be a harm to the market for the excerpts.
- There the key factor that the court pointed to was parody, that it was transformative- deeply transformative- really made a new work out of the old work and therefore was fair use.
- In Sony, the time shifting of TV shows was found to be fair use because the court really didn’t think it was going to have any effect on the marketplace for the TV shows themselves.
- That there was already a market in place for these reprints and therefore by trying to engage in fair use of the reprints, you were harming that market and therefore no fair use.
- So is there a pattern here? I mean, looking here at the pattern, what do you see? So one thing you might see and might notice is that transformation, this idea that this transformation of the old work into something that’s new and different.
- Maybe even the time shifting, where you’re essentially taking a work and changing the character of it in some way seems to matter a lot to the courts.
- So in almost every case where the court finds no fair use, it thinks that the market is going to be harmed and vice versa.
- The other way to look at this set of cases, and indeed any set of fair use cases, is to say, really, there’s not much of a pattern.
- So instead of trying to decide whether Harper & Row, the factors work out in a particular way, maybe the answer is that the court in that case just thought that the right result, given all of the policy considerations surrounding fair use, copyright law, newsworthiness, and so forth, just thought that Harper & Row should win.
- One of the features of fair use might be that it allows for that to happen.
- In the Acuff-Rose case, the court thinks that this parody is a real sort of new and socially beneficial work.
Week 3: Copyright 3: Fair Use > Fair Use and Copyright Policy > Alternatives to Fair Use
- So the question asked is is fair use actually working? I mean, let’s look back at our list of reasons to have fair use, cross-subsidization, a relief valve for innovation, a remedy for market failure, enhancing or protecting free expression.
- Is the fair use standard, is the fair use test, is the way it actually works in the real world making these things happen? And there are really two views of fair use in this context.
- You just don’t know, and indeed if you’re going to try and make fair use of a copyrighted work, the burden’s on you.
- In many cases, if a copyright owner is a large corporation that has lots of resources, lots of lawyers, for example, they’re going to be able to exert a lot of power simply by having more resources in the context of a situation where in order to get fair use you have to defend yourself against infringement and win the case in order to avoid being held liable.
- They view fair use as simply an excuse for privacy, that by having this uncertainty surrounding what is and what is not fair use, lots and lots of uses occur.
- For example, claims that a lot of the things that you might think are infringing on their website are engaged in fair use, are their users engaged in fair use.
- So the creators think that fair use is just a way for people to engage in infringement of copyright without paying for it and that any calls to expand fair use or clarify fair use is really just an effort to undermine copyright, to diminish copyright for other purposes rather than the balance.
- The answer is that both are right, that indeed both the users and the creators are right about fair use, and here’s why I think that’s the case.
- Is my new technology fair use or is it not? The fact that I don’t agree with you, the creator of the underlying copyright, about it means that there’s uncertainty about the scope of those rights.
- So because I don’t know for sure whether my new technology is fair use or not, engages in fair use or not, I have concerns about that.
- Because I am aggressively pushing fair use, they feel like even though they don’t really know where fair use begins and ends, they feel like there’s more infringement possibilities than there would be and therefore, their scope of protection is similarly diminished.
- You engage in public relations activities that assert what you think is the right approach to the law, whether it’s broader fair use or narrower fair use.
- So the question is, is there a way forward here? Is there a way to move forward at some consensus position? One answer is to eliminate fair use and simply let the market and technology work it out.
- All of the ways that you can now access entertainment goods, digital entertainment goods via streaming are all ones that have been agreed to by the content owners and not through some sort of fair use.
- So it might be that if you just eliminated fair use you wouldn’t have as many disputes, you wouldn’t have as much uncertainty and that people would be able to move forward with the technology that actually worked.
- Another way forward might be to have an actual theory of fair use.
- As we saw when we went through the cases, it seems like fair use is really difficult to discern any particular theory or pattern.
- You can point to those, but in any given case, it’s going to be almost impossible to advise a client, for example, on whether what they’re doing is fair use or not.
- What is fair? And describe that in more detail either in court cases or regulation or legislation and then adjust the law accordingly.
- It’s an overall standard of what we think is fair.
- Or as long as less than 1,000 people have access to the work, it’s fair, for example.
- You could have very categorical rules for fair use that would offer some of the advantages of the fair use protections but would cabin them in a way that made it clear to everybody involved where fair use begins and ends.
- Maybe that’s a way to get out of the perfect storm that I described earlier and move forward with fair use and with copyright law more generally.
