How many cases about fair use have been decided in the U.S. since the doctrine was first applied by Justice Story in 1841? Take a minute to count; I’ll wait.
If you came up with at least 170, the Copyright Office agrees with you. Last week they announced a fascinating new tool on the CO website, an index of fair use cases. That index contains summaries of approximately 170 cases, along with a search tool. The introductory message, however, acknowledges that the index is not complete, so those of you who thought there were more than 170 cases are almost certainly correct.
This index is potentially a very useful tool, and it also raises some interesting questions. I want to consider the questions first, than discuss how the new fair use index might be used by someone who wanted to learn more about how fair use works (which, by the way, is one of the avowed purposes behind its development).
Coverage is the obvious first question, and, as I said, the CO acknowledges that it is incomplete. Specifically, it seems heavily weighted toward more recent cases. There are only 11 cases listed in the index dating to before 1978, and two older cases (1940 and 1968) that are presented in my law school casebook on copyright as important fair use precedents are not included. So it looks like there are some pretty significant gaps, which one hopes the Copyright Office will address as it continues to develop this tool.
By the way, the issue of continuing development also brings up the question of why the C.O. thought this was a worthwhile investment. It looks useful, to be sure, but there are other sources for similar data, so it is a bit curious that the C.O. chose this among all its potential priorities.
To return to the issue of coverage, it is always important to ask which specific cases were chosen and how they are characterized. Of the 170 cases, there are 78 for which the result is listed as “Fair use not found,” and 64 in which the C.O. says that fair use was found. The remaining 29 are listed as “Preliminary ruling, mixed result or remand.” This last category is rather unhelpful. For example, the Authors Guild v. HathiTrust case is listed this way, even though it was a strong affirmation of fair use and the remand involved a fairly unimportant issue of standing. Even more surprising is the fact that this “mixed result” tag is applied to Campbell v. Acuff Rose Music, the “Oh Pretty Women” case from the Supreme Court that is at the heart of modern fair use jurisprudence. Again, this was a clear fair use win; the case was remanded only because that is what the Supreme Court usually does when it reverses a Court of Appeals’ decision. So the representation of the holdings is technically accurate, it seems, but not as helpful as it might be in actually focusing on the fair use aspect; while some “mixed result” case genuinely were that — fair use was found on one issue but not for another — many of the remanded cases actually did involve a clear yea or nay about fair use, and it would be more helpful to categorize them that way.
A particularly useful feature of this index is the ability to limit the listings by jurisdiction (the Appellate Circuits) and by topic. For example, limited to just cases out of the Fourth Circuit, where I reside, I find that the Court has ruled on seven fair uses case and upheld fair use in six of them. The seventh was one of those genuinely mixed results, where one challenged use was held to be fair and another was not.
If we limit the subject area of the cases to those labeled “Education/Scholarship/Research,” fair use seems to fare better than it does overall. In that category of 42 total cases there are 18 findings in favor of fair use and 16 rejections. Of the remaining 8 mixed results, at least two of them — the HathiTrust Case and the GSU case — should be seen as affirmations of fair use, even if the parameters of that use are still unsettled in GSU. So the impression many of us have that educational and scholarly uses are a bit more favored in the fair use analysis than other types of cases seems to be confirmed.
Things get more interesting when we look just at the Supreme Court in this index, and the issue of how cases are chosen is again highlighted. The index shows four fair use cases, with one holding in favor of fair use (Sony v. Universal Pictures), one mixed result (Campbell, as discussed above), and two rejections of fair use (Harper v. Nation and Stewart v. Abend). This last case, Stewart v. Abend, is actually almost never treated as a fair use case; while fair use was dismissed as a potential defense in the case, the real issue involved assignments of copyright and who could exercise the renewal right that existed at that time. And this case was remanded, just as Campbell was. So it is odd that Campbell, with its central finding in favor of fair use, is shown as a mixed result, while Stewart v. Abend, where fair use was tangential and there was also a remand, is tagged as a rejection of fair use. This suggests at least an unconscious bias against fair use findings.
A different listing of Supreme Court fair use cases, on the IP Watchdog site, includes several additional cases — nine, in all — but does not list Stewart v. Abend as one of them. Several of the cases included by IP Watchdog do not seem to me to really focus on fair use, so I am not saying that the C.O. has under-reported the cases. But the very different lists do suggest that it is a surprisingly subjective undertaking just to identify the cases that should be included in a fair use index.
Finally, the analysis provided in the C.O.’s case summaries needs to be considered carefully. To take one example, for the recent case of Kienitz v. Scoonie Nation, about which I wrote earlier this year, the short note about the holding ignores the thing that may be most significant about the case — the reluctance of Judge Frank Easterbrook to apply a “transformation” analysis to the fair use question (HT to my friend and colleague David Hansen for pointing this out). Again, this is not necessarily a problem, and the case summary of Kienitz at the Stanford Copyright & Fair Use site has a similar synopsis, but it is a reminder that these projects are always created by individuals with specific perspectives, viewpoints and limitations.
Even with all these caveats, I think the Copyright Office has created a useful tool, which can be used by those interested to learn a lot about how fair use is applied, especially by looking at the different categories. The Stanford site, linked above, and especially its own, much shorter list of cases, might usefully be used alongside the C.O. index. The Stanford descriptions are very tightly focused on the fair use issue, so reading them in conjunction with the C.O. summaries, with their attention to procedural matters that sometimes obscure the fair use holding, might produce a more balanced approach.
In any case, this new tool form the Copyright Office, and some of the tools that predate it, remind us that the best way to understand fair use, and to become comfortable with it, is too look closely at the cases, both in the aggregate and individually. This C.O. database offers a statistical perspective, as well as the ability to focus on parody, or music, or format-shifting, while the Stanford summaries emphasize in a few words the core of the fair use analysis. Both point the interested reader to full opinions, where the analysis can be understood in the context of all the facts. Combined in this way, these resources offer a terrific opportunity for librarians, authors, and others to dig deeply into the nuances of fair use.