A masterpiece of misdirection

On February 28, the Authors Guild filed a memorandum in support of its “motion for partial judgment on the pleadings” in its lawsuit against the Hathi Trust and five of its partner libraries, asking the judge to rule that the activities the AG has complained about – the mass digitization of books and the proposed orphan works project — are not protected by the specific library exceptions found in section 108 of the copyright law and that Hathi Trust cannot even assert, much less successfully rely upon, fair use, which is section 107 of that law.  There is a news report on the motion from Publishers Weekly here.

The memorandum strikes me as a masterpiece of misdirection, trying to make plausible arguments that do not quite fit the actual case in front of the judge.  The problem is that if the judge accepts these arguments, it could be devastating for libraries.  At its heart, the motion argues that libraries do not have any fair use rights, since their entire set of privileges under the copyright act are encompassed by section 108.  I think there are lots of reasons to reject this logic, which runs counter to the express language that Congress used in section 108 itself, which says (in subsection (f)(4)) that “Nothing in this section… in any way affects the right of fair use.

One way to see the flaw in the AG’s argument is to look at the odd results that arise if it is accepted.  For one thing, libraries would thereby become disadvantaged actors under the copyright act.  Other institutions and persons would still have the broad and flexible opportunities under fair use, but libraries would not.  Indeed, in the other lawsuit about mass digitization in which the Authors Guild is a plaintiff, against Google itself, Google will be able to argue fair use to justify its mass digitization, if the case gets that far.  But the plaintiffs argue that libraries cannot assert the same defense in regard to the same activity, simply because they are libraries, and thus disadvantaged by the existence of an exception that was supposed to benefit them.

By the way, this logic runs counter to the legislative history of the codification of fair use.  Congress explicitly stated that it did not intend to change or harden the judicial application of fair use; they wanted judges to continue to be free to apply the factors to specific circumstances to make equitable decisions.  But if placing section 107 in the same law as all the specific exceptions limits its application to situations not covered by those exceptions, that judicial freedom is undermined and the clear intent of Congress frustrated.

The are many other specific exceptions in the copyright law, and viewing them as limits on fair use again shows the absurdity of the argument.  There is an exception that allows photographers to take pictures of publicly visible architectural works, even when those works are protected by copyright.  If that exception is taken as the entire expression of the rights of photographers, then they could not argue fair use when taking photographs of other publicly visible copyrighted works, like a piece of public sculpture. That result is absurd, of course, and was implicitly rejected by cases allowing such photography.  There is also an exception that allows public performance of music in the context of religious worship, but its existence does not mean that someone who sings a song in public outside of a worship service would not be able to argue fair use.

It is interesting to note that a consultation on copyright in Ireland, which issued this consultation paper earlier in the year, suggests the value of a fair use provision for the Irish copyright law and makes the point that each of the specific exceptions can actually be seen as examples of fair use (see page 120).  If each specific exception is read as an instantiation of the fair use analysis for a particular situation, the logic of ensuring that fair use always remains an option (as 108(f)(4) tries to do) is particularly clear. (Hat tip to David Hansen for bringing this paper to my attention)

One more potential absurdity – If libraries have no fair use rights, would it automatically be infringement for a library to capture and print a single still image from a film for a student to include in a paper?  Section 108 excludes film from all but its preservation sections, so making a copy for a patron from a film would not be permitted under the 108 subsections on copying for users.  Yet this activity would seem like an obvious fair use if anyone else did it.  Why, we should ask, would libraries (and their users) be penalized simply for being libraries?

One of the difficulties here is that fair use is sometimes equated to “fair dealing” or “fair practice” in international copyright law.  Those terms tend to be blanket concepts that incorporate but do not expand upon the specific exceptions within each national law.  Fair use is different.  It is a separate and free standing exception within the US scheme. We need to remember that the US law was not written within the context of international copyright harmonization and does not conform, in any number of ways, to the usual pattern of copyright in other countries. That fair use is a separate exception and not simply a blanket term or gap filler is proved, I think, by the specific reference inside section 108 to fair use as an alternative option for libraries.  It is also a fact recognized and pointed out by the Irish paper on copyright linked above, which suggests that fair use can be seen as “a doctrine that defines the ambit of copyrightability and thus not an infringement at all.”  As a boundary definition on the exclusive rights and the basic analysis underlying all of the specific copyright exceptions, fair use would, again, always be an appropriate defense that courts should never rule out as a potential argument.

The most creative part of the memorandum supporting the plaintiff’s motion is its attempt to convince the judge to ignore section 108(f)(4), the fair use “savings clause” quoted above.  That language seems pretty categorical, and the phrase “right of fair use” certainly suggests that fair use is a positive right that does not simply fall away when more specific exceptions to copyright are enumerated.  The plaintiffs ask the judge to ignore this phrase with two arguments.

First, they refer to the general principle that “the specific governs the general.”  Because fair use is, allegedly, general, and section 108 is specific, it is asserted that 108 preempts the application of fair use in libraries.  But as we have just seen, fair use is a positive right that Congress acknowledged by inserting section 107 into the law but did not intend to limit.  So it is a different sort of thing; it is not merely a general principle that can be set aside by specific rules, but a distinct exception — or even a boundary definition — intended to do its own work within the framework of the law.

Second, the plaintiffs rely on a different case, Corley v. Universal Studios, in which a judge dismissed a similar fair use “savings clause” in the Digital Millennium Copyright Act.  The problem is that that dismissal, which has not been followed by other courts even when interpreting the DMCA, is based on an entirely different reason than the one being asserted by the Authors Guild.  The judge in Corley held that the activity in question, circumventing technological measures intended to prevent copying, was simply not the sort of thing that fair use was intended to apply to.  He did not reject the “savings clause,” he merely found that the activity before him was outside its scope.  In the Hathi case, of course, the activities in question are directly within the ambit of fair use, and the judge should respect the clear intention that Congress expressed as powerfully as it could in 108(f)(4).  Whatever the ultimate decision about fair use may be, the defendants must be allowed to argue it if the structure of US copyright law is not to be grossly undermined.