Category Archives: Copyright Issues and Legislation

Copyright Issues and Legislation, Fair Use, Open Access and Institutional Repositories

Orphan works, fair use and best practices

All of the above are recurrent themes in copyright and scholarly communications these days, but a recent publication from the Society of American Archivists has put a little different spin, I think, on an ongoing conversation.

The SAA released a revised version of their Statement of Best Practices on Orphan Works on June 17.  In the statement about the purpose of the report, the SAA makes specific reference to the two bills that were considered by Congress in 2008 as attempts to solve the orphan works problem (I blogged about those bills here and here).  The revised statement of best practices is an explicit attempt to define a term that was used in those bills — a “reasonably diligent search” for a copyright holder.  It would be only after such a search that a remission of the damages for a user of an orphan work would be available under these bills, and the SAA is trying to suggests standards and practices that define what is reasonable and diligent in the real world of archival materials.

It is important to realize that there are two different approaches to using orphan works.  The bills proposed in Congress take a remedies-based approach, offering a substantial reduction of the possible penalties for users of orphan works if they first undertake a reasonably diligent search and, subsequently, a rights holder surfaces and demands compensation.  The SAA statement of best practices is directly related to this approach and undertakes to define the steps necessary if such a search requirement is enacted.  But the statement of best practices also recognizes another option, reliance on fair use.  The statement says “Fair use may be a better rationale for creating a copy or publishing a copy of a document,” but it does not make an explicit connection between fair use and the best practices outlined in the remainder of the statement.

Fair use is an exception to copyright’s monopoly that already exists and is currently available to potential users of orphan works.  The value of the “reasonably diligent search” in the fair use context is that it would have, I believe, a profound effect on the fourth fair use factor, the impact on potential markets for the work.  If a search such as is suggested in the SAA statement is carried out and no rights holder can be located, that would go a long way toward showing that no market is being harmed by the use (especially if the use itself is educational and non-profit).  In this situation, it is hard to imagine a court actually rejecting a fair use defense, and even if such a defense did fail, archivists and other employees of non-profit institutions could still fall back on the partial remission of damages that is provided in section 504(c)(2) of the Copyright Act.  As the SAA notes, a reasonable belief in fair use, even when a court disagrees in the end, “is sufficient to protect the archivist from statutory damages.”  Such protection is not as complete as would be provided by an orphan works bill, but it is is nonetheless substantial.  In the end, it really might make more sense for educational users to rely on fair use when contemplating a use of an orphan work, after employing some or all of the strategies in the SAA statement of best practices to try and find a rights holder.  Waiting for Congressional action may be both impractical and unnecessary.

Whether orphan works legislation proves useful or not will depend in large part on the details of any final bill.  There were strong hints last time that in order to gain approval, a bill would become so burdensome and expensive that the library and archives community would be better off without new legislation, simply relying on fair use.  No doubt that debate will be revived if any orphan works bills are re-introduced.  But the SAA has made an important contribution from either perspective that one takes.  In regard to potential legislation, they have offered a standard that legislators should consider as they draft a bill, as well as one that those concerned about the burden created by legislation can look at to measure the depth of the problem.  In regard to those who would rely on fair use, the statement of best practices provides a set of guidelines that can help give users confidence that they are truly making a good faith fair use effort.

Copyright Issues and Legislation, Technologies

Books in the cloud

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There have been lots of reports flying around recently about the decision by Amazon to delete copies of two works by George Orwell (ironic, that) from the Kindle devices of folks who thought they had bought those books for once and for all time.   There on reports and comments about this here, here and here.  Technologically naive as I am, my first response to the story was “wow, I didn’t know they could do that.”  My second response was to reconsider my growing inclination to buy a Kindle.

The really meaty issues, of course, are not whether I buy a Kindle or not, but relate to copyright issues and privacy.  We are used to the idea that a copy of a book is mine to do with as I please once I have purchased a legally-made copy of it.  The same is true of a CD or a DVD; I can rent, donate, destroy, lend or resell the single physical copy that embodies intellectual property because of the provision in our law called the doctrine of first sale.  We know that first sale does not necessarily apply in the same way to digital files, but the Kindle cases really pushes the issue.  Everything about the purchase of an e-book from Amazon looks like a sale, and consumers can easily be forgiven for thinking that they own something at the end of the process.  It is probably time for a legislative look at how first sale applies in the digital world.  While there have been suggestions of a “forward and delete” model for digital first sale that would allow a consumer to transfer a digital file to someone else as long as copies were not multiplied, this situation raises a more fundamental question.  When can a transaction that looks like a sale be treated as a mere license, and when will consumer protection concerns step in to enforce the privileges that go with a purchase?

It is important to note that, in the case of “1984” and “Animal Farm,” there was no question of preventing consumers from making unauthorized copies, which is the usual reason given for the assertion that first sale does not apply to the digital environment.  Here, it was Amazon that was selling the unauthorized copies, and consumers were deprived of ownership by remote action, even after they had purchased the books.  Why this could not be remedied by having Amazon pay the rights holder for the infringement, which would have been the solution if a publisher distributed print copies of a book without authorization from the copyright holder, is not clear to me.

One thing that several of the stories about this contretemps have in common is reference to Jonathan Zittrain’s must-read book “The Future of the Internet… and how to stop it.”  It is always good for an author when he correctly predicts a technological trend, and Zittrain got this one dead-on.  His warning that the Internet is moving away from the programmable devices that fostered so much innovation toward tightly-control, “tethered” appliances proves eerily prophetic when Amazon starts deleting books from consumers’ devices.  It makes reading Zittrain’s discussion of all of the implications of this development that much more important.

Zittrain had an excellent op-ed piece in the New York Times on July 20, called “Lost in the Cloud,” that discusses some of the privacy and censorship issues that are inherent in the development of these Internet appliances and makes brief reference to the Kindle issue.  I am happy to be able to report that Zittrain will be coming to Duke during the upcoming academic year as part of our Provost’s Lecture Series; I cannot imagine a more important discussion to have than one about the issues he is raising.

Copyright Issues and Legislation, Fair Use

A sequel on Salinger

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In a comment about my previous post concerning the decision to grant a preliminary injunction in the Salinger case, effectively banning US publication of a story about Holden Caulfield 6o years later, the writer took me to task, quite harshly but with some justification, for my cursory and sweeping denunciation of the decision.  My post implied, although I admitted at the time that I had not read the entire ruling, that the Judge’s decision was uninformed.  Now that I have read the opinion, I must admit that it is not uninformed, but wrong for several other, more subtle, reasons.

First, as I said originally, Judge Batts does not adequately address the idea/expression dichotomy built into copyright law in section 102(b).  She acknowledges the concept early on in the ruling, even citing it as one of the elements that reconciles copyright with the First Amendment, but then does not mention it again.  The result of this omission is that she never tries, in her analysis of the alleged similarities between “Catcher in the Rye” and “Forty Years Later” to distinguish protectable from non-protectable elements before making the comparison.  This is standard practice in the substantial similarity analysis, and its absence leads the Judge to cite some amazing things as evidence of copyright infringement, such as the fact that both characters are liars, both complain a lot, and both travel to NYC.

It is certainly true that one can infringe in ways other than verbatim copying, but one must still show substantial similarity with protected expression; it is not enough to say that the protagonist in Catcher is delineated in words and therefore any word picture that is similar, even merely because it uses similar ideas, must infringe. I am reminded of the case brought against Dan Brown for infringing the copyright in “Holy Blood, Holy Grail” with his “The Da Vinci Code.”  The basic idea in the two books is fundamentally the same, but the case was dismissed (in the UK) because the court separated out unprotectable ideas and then found no substantial similarity.  That should have been the procedure, and the outcome, in the Salinger case as well.

I think a good deal of the problem is that the Judge spends too much time on the discussion of whether or not the new work is a parody of the old.  Even when she turns to other transformative purposes in her analysis, the Judge never really moves past the parody issue, since she focuses entirely on the (critical) use of J.D. Salinger as a character in the new novel.  But there are many kinds of transformative uses beyond these two types (which are really not very different); the Judge needed to consider the broad range of purposes listed in section 107 as examples of fair use in order to evaluate the full scope of possible transformation.

A clue that there is a problem with the Salinger ruling is that Judge Batts finds pretty explicitly that no unauthorized sequels would ever be non-infringing, but she offers no guidance at all about where the line is between impermissible sequels and other types of work, such as reference works that describe and analyze characters, settings and plots.  Essentially, the exclusive right over derivative works has been allowed to swallow the idea/expression distinction that is really vital to American copyright law, and the Judge offers us no way to mitigate or reconcile that result.  In fact, she tries rather feebly to make something positive out of her error here by suggesting that the right to prevent a sequel might actually give an incentive to an author to write a novel, secure in the knowledge that they will have the last word about every thought or idea they express.  Even if one assumes lots of authors as unsocial and controlling as Salinger, this is not a recipe for promoting the arts, whatever the Judge tries to argue.

This severe limitation on future creativity points up the last problem I want to cite in the Salinger ruling, and in many ways it is the most damaging.  Even though it is part of the required findings for issuing a preliminary injunction, Judge Batts never considers the balance of hardships between the parties if she grants the injunction, nor does she weigh the public implications of this prior restraint of speech, except with this odd argument about incentivizing authors who cannot tolerate followers.  These considerations are not optional when ruling on a preliminary injunction, and their absence should lead to reversal at the appellate level.   But even more important than following the letter of the Federal Rules of Civil Procedure is recognizing that it is absolutely vital that the public interest be considered whenever a judge is considering a request to ban a book, lest he or she run roughshod over the Constitution they are sworn to uphold.

The real problem with this ruling is not that it is uninformed, but that it misses the forest (including the public interest) due to its nearly exclusive focus on one tree.

Copyright in the Classroom, Copyright Issues and Legislation, Fair Use, Technologies, User Generated Content

Can a “batty” ruling effect needed change?

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It is thoroughly unbelievable news that US District Court Judge Deborah Batts has issued a permanent injunction against the US publication of a book that purports to update the story of Holden Caufield, the protagonist of J.D. Salinger’s “The Catcher in the Rye.”  The new book, written by Swedish author Fredrik Colting and already published in Britain, is called “Sixty Years Later: Coming through the Rye” and is told by a 76-year-old man called Mr. C.  There is little doubt that Mr. Colting is trying to ride the continuing popularity (which I personally have never understood) of “Catcher in the Rye” by creating a sequel.  But there is a great deal of doubt about whether this is a copyright infringement.  The portions of the decision I have been able to read suggest that Judge Batts got all of the major copyright issues involved completely wrong.

First there was the fair use argument.  In a very similar case involving a retelling of the the story of “Gone With the Wind” from the point of view of one of the slaves at Tara, the Eleventh Circuit Court of Appeal correctly recognized that the new work was a fair use of material copied from “Gone with the Wind.”  And in the recent decision finding that “The Harry Potter Lexicon” was not a fair use,  Judge Robert Patterson, in the same judicial district as Judge Batts, went out of his way to make clear that an author of an original work cannot control all sequels, prequels and reference works.  Judge Patterson even writes, citing other precedents in the Circuit, that “a work is not derivative, however, simply because it is “based upon” the preexisting work.” (p. 39)  But that erroneous conclusion is exactly the foundation of Judge Batts’ decision.

Judge Batts seems to know only one fair use precedent — the “Oh Pretty Woman” case from the Supreme Court — and she applies it slavishly.  Since she does not think that the new book is an actual parody of the original, she holds that it is an infringing derivative work.  But it should be clear to anyone who is a federal district court judge that there are other kinds of fair use than parody; indeed, a quick read of section 107 itself would get one that far.

The real problem, however, is that this should not have been decided as a fair use issue.  In the two cases cited above, there was a substantial amount of material that was actually copied from an original into the new work.  In the case of the “Wind Done Gone,” specific dialogue was reproduced, with commentary and perspective from the “new” protagonist.  In the case of “Coming Through the Rye,” there seems to be no evidence of actual expression that is copied in the sequel.  Judge Batts focuses her objection on the conclusion that “Holden Caufield is delineated by words” and that therefore Holden is copyrighted.  But this ignores the fundamental distinction between expression, which is protected by copyright, and ideas, which are not.  All ideas are delineated by words, but that does not give the ideas themselves, even the idea of a solipsistic teenager who inevitably grows up, copyright protection.  Even before she reads section 107, Judge Batts needs to read section 102(b) of the Copyright Act.

Indeed, her decision is so unaccountable that its leads this commentator at TechDirt to question whether there really is an idea/expression dichotomy in copyright law at all.  But that dichotomy carries a lot of weight in US law; it is frequently cited, including by the Supreme Court, as one of the basic concepts (along with fair use) that keeps copyright law from becoming an infringement of free speech.  Now that Judge Batts has read the distinction out of the law (or failed to read the law at all), the conflict with free speech becomes all too apparent, when a new book can be banned in the US because an old author doesn’t like it.

So what good can come from this ridiculous decision?  First, it should be, and very likely will be, overturned on appeal.  But more importantly, it should prompt Congress to look again at the exclusive right, granted in copyright law, to prepare derivative works.  That right has not always been part of copyright; there was a time when even abridgments and translations were held not to infringe on an original.  The pendulum has now swung the other way, and we grossly overprotect some original works from legitimate reuse because we think those new creations are derivative works.  As is frequently pointed out, Shakespeare could not have written his plays under today’s copyright regime in the US.  It is time for clearer definition of what is and, more importantly, what is not a derivative work that is entitled to protection.  If outrage over Judge Batts’ decision can prompt such clarity, some good might come from this very bad ruling.

Copyright Issues and Legislation, Fair Use

Intersting development in Georgia State case

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The copyright infringement lawsuit brought against Georgia State University by three major publishers has been in a relatively quiet phase recently.  Discovery, the process of gathering evidence and deposing witnesses, can be very dramatic, in fact, and decisions made during that phase of a trial can do much to determine who wins and who loses.  But it largely takes place outside of public view.  Nevertheless, there was a development in Cambridge University Press, et al. v. Georgia State University last week that could significantly change the stakes for the rest of the academic world as it watches this case unfold (thanks to Jeff Graveline at UAB for pointing this ruling out to me).

This gets a little technical, so bear with me.

When the lawsuit was first filed, lots of librarians and other academics read the complaint and thought, if that is what GSU has been doing, they have really been pushing the envelope.  The copyright policy under which the University System of Georgia operated was the work of a brilliant scholar, but it represented a very liberal interpretation of the law.  The complaint outlined objections to the policy, as pushing the interpretation of fair use too far, as well as citing practices that seemed outside even the broad scope of the Georgia policy.

Earlier this year, the Georgia Regents adopted a new copyright policy after a select committee reviewed and entirely rewrote the older one.  The new policy is shorter, more easily comprehended and more pragmatic.  In fact, it comes a lot closer than its predecessor to reflecting policies around electronic course content that are common on many campuses.

After this new policy was adopted, attorneys for GSU filed a motion for a “protective order” which would state that only information about electronic course content going forward, under the new policy, could be “discovered” by the plaintiffs.  GSU argued that since they were a state institution, and therefore entitled to immunity from damages, the plaintiffs could only get prospective relief (an injunction) and therefore should be limited to information about practices related to the policy under which GSU would go forward.  After some legal maneuvering, the Judge granted this request last week.

As I read the Judge’s decision on this motion, the only reason the Plaintiffs now need to know anything about prior practices at GSU would be to argue that the new policy has not really changed anything. And Judge Evans has now held that enough has already been revealed about past practices to support or refute that argument.

For the rest of us, this means that the decision about fair use, if the case gets that far, will be a lot more relevant to e-reserve and course management systems use around the country.  That, of course, could be a good thing or a bad thing, depending on how the decision goes.  But it seems the decision will be based on policy and practice a lot closer to what many schools use (assuming, of course, that the new policy really does indicate changes in practice).  Presumably a ruling in favor of fair use is a little more likely now that it will be decided on the basis of this more pragmatic policy.  And such a ruling would more clearly support wide-spread practices in higher education.  On the other hand, a ruling against Georgia State, if it happens, would be much harder for the rest of us to explain away and distinguish from our own practices.

Copyright Issues and Legislation

Words having meanings, but money talks.

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The overheated rhetoric employed by the big content industries in their futile and probably suicidal battle against file sharing has been very detrimental to any hope for an improved understanding of copyright and intellectual property.  For example, in an age when real piracy has once again become an international concern, the use of term “piracy” for file sharing seems both inaccurate and offensively self-centered.  In a recent article in Information Today, K. Matthew Dames does a effective job of deconstructing this use of “piracy” and explaining why it really does matter what language we use to frame the problem of copyright infringement.

There is some irony in Dames’ article, however, in his use of “theft” as an alternative to “piracy,” as when he asks “should “piracy” continue to be used to mean theft of works that are protected by copyright or other forms of intellectual property (IP)?”  Black’s Law Dictionary, following a long common law tradition, defines theft as “the felonious taking and removing of another’s personal property with the intent of depriving the true owner of it.”  This definition indicates why theft is also a poor word to use to frame the problem of infringement.  The characteristic of intellectual property that it can be shared without depriving the original owner of it, and that its value, in fact, depends on this ability to share copies, explains why legislators have always distinguished infringement from theft.  To infringe does not mean to “remove” the IP but to copy it.  Nor is there an intention to deprive the owner of the property, merely some of its value.  Since theft is a “specific intent” crime, IP is not treated as personal property (chattels) under the law, but in a conceptually different category which can be infringed but not stolen.

Why do these fine legal distinctions matter?  In my opinion, the greatest harm done by the rhetoric of piracy and theft is that it seems so absurd to many people that they discount the seriousness of infringement.  The ubiquity of file sharing today seems to prove this point.  By overreaching in their rhetoric, the content industries encourage many people not to take them seriously.  But infringement is a serious matter; it deprives someone of their rights, if not their property, and that is a matter the law should take seriously. The rhetoric of theft and piracy makes it too easy to laugh and scoff instead.

Nevertheless, the exaggerated language and claims of the content industries do have some effect.  For one thing, they can influence juries to get swept up in the overheated atmosphere created by talk of piracy and theft.  How else can one explain the verdict in the second trial of Jammie Thomas-Rasset?  When her first trial for downloading 24 songs without authorization ending in a judgment of $222,000 in damages, or $9,250 per song, the judge himself called that amount “unprecedented and oppressive.”  Now the second jury has assessed damages of $80,000 per song (although there seems to be no chance of collecting that money and indications that the RIAA will not try).  It is easy to conclude that the same rhetoric that seems so silly and inapt as part of an “education” campaign is very effective in the hothouse atmosphere of a courtroom; perhaps, indeed, that has been the point all along.  In any case, we will certainly hear a great deal more from the content industries trumpeting this victory and trying to deter even legal sharing with the threat of ridiculous damage awards.

In the meanwhile, Fred von Lohman of the Electronic Frontier Foundation raises the interesting question of whether this award of damages is constitutional.  The Supreme Court has struck down punitive damage awards in the past when they were considered so out of line with actual damages that they violated due process, and in the Thomas case the actual damages were less than $25.  So an award of almost 2 million is certainly out of line.  The problem is that statutory damages are different from punitive damages in an important way — they are written into a statute.  Excessive punitive damages have been found to violate due process because they are unforeseeable; a defendant in a relatively small case cannot imagine that they could find themselves liable for millions, and the decision to create such liability is made solely by a jury in the specific case.  The Court has found that reasonable foreseeability is a limit on a jury’s discretion in such situations.  In an infringement case, however, the range of damages is specified in the law, and a potential defendant should know the consequences prior to undertaking infringing activity.  There is not, in short, the same kind of due process problem in copyright cases.

This is one reason why I do not expect the award in the Thomas case to be challenged on Constitutional grounds.  The other reason is that the RIAA has already signalled that it is willing to settle for much less money; it wants to advertise the judgment but not appear like an ogre trying to squeeze blood from a turnip.  Perhaps the best reason for the RIAA not to try to collect here, however, is that it does not want to see either a court challenge to the Constitutionality of the statutory damages provision of the copyright law OR a legislative awakening to the obvious fact that these damages have gotten out of hand and should be reduced as a matter of good law and common sense.

Copyright Information Notes, Copyright Issues and Legislation, Fair Use, User Generated Content

New (and not so new) resources

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I am delighted to be able to link to a whole new group of resource for understanding and teaching others about copyright law and user rights.  Since most of these resources are video, they offer a nice supplement to the text resources I have listed here and here.

First, because it is the most general, is this new web site called “Teaching Copyright” from the Electronic Frontier Foundation.  This is a full-scale online curriculum designed to teach students about copyright,  It is intentionally offered to counter some of the educational efforts of the music and movie industries, which tend to focus heavily on what is not allow and try to avoid mentioning fair use or other exceptions that benefit users and support new creativity.

Second is what I like to call the most boring seven minutes on YouTube.  I realize that there is great competition for that honor, but this video in which I discuss the copyright and privacy issues involved in recording campus lectures and classes for Internet distribution surely has a claim.  It was made at the request of the Duke Office of News and Communications, and I have reason to hope it is helpful, even if it is not exciting.  If viewers are seeking entertainment after listening to me drone through the rights issues they need to consider, it is worth while looking around at the other videos on the Duke Libraries YouTube channel; many are much more exciting.

Next is this video from JISC on Intellectual Property Rights in Web 2.0 world.  It is a cute, colorful and nicely detailed discussion of rights and permissions issues that need to be considered as one creates new content for the web, and it points to an “online diagnostic tool” that will walk one through the issues in greater detail.  One warning, however, is that because this video and diagnostic tool are created in reference to UK law, where there is no fair use provision, their suggestions for when permission is needed must be reconsidered by US citizen in the light of our fair use provision.  Nevertheless, this is a helpful way of evaluating the issues and the various strands of rights that have to be considered, even if the conclusions will seem too strict to Americans.

The antidote to JISC’s lack of reference to fair use is this final video from the Center for Social Media on Fair Use and Online Video.  The Center has been a great champion of fair use through its work to create best practices documents to guide filmmakes and teachers of media literacy.  Now this video, and the accompanying best practices that it refers to, make the process of figuring out how and when fair use applies to allow a use without permission from the rights holder both clearer and rather entertaining.  This, and all of the resources mentioned above, are additional tools for the ongoin effort to clarify copyright for our students, staff and faculty; it is nice to be able to point to such a array of different, and amusing, media

Copyright Issues and Legislation, Digital Rights Management, Fair Use, Technologies

What has changed

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Courts in the U.S. have asserted for years that our copyright law is compatible with the First Amendment guarantee of free speech by citing to principles — fair use and the rule that copyright protects only expression and leaves the underlying ideas free for all to appropriate, reuse and build upon.  Both of these safeguards are still in place, yet I have twice claimed in this space that we need to look again at the relationship between copyright and free expression.  So the question presents itself, do I just not get it, as at least one commenter seems to think, or has something changed to make reliance on fair use and idea/expression inadequate these days?

Although I am not convinced that the two principles usually cited were ever adequate, especially as the scope of copyright’s monopoly expanded, what has clearly changed, in recent years, is that Congress adopted the Digital Millennium Copyright Act in 1998.  The DMCA added two provisions to the copyright act that have had a negative impact on free expression.

First were the legal protections provided for technological protection measures, or DRM (digital rights management) systems.  It is ironic that content owners decided to move toward technological locks because they felt that legal protections were inadequate, and then found they needed legal protection for those locks when they proved insecure.  But the combination of digital locks and “anti-circumvention” rules has been devastating for free speech; even use of public domain works can now be locked up, and the law will prevent access.

Lest we forget the power of DRM, here is a note about the Motion Picture Association of America “reminding” a court that it is illegal to circumvent DRM systems even for a use of the material that would be perfectly legal.  So when digital locks are used, one of the safeguards our courts have relied on to preserve free speech — fair use — is apparently useless.  As the EFF attorney mentioned in a blog post linked above says, it is by no means certain that fair use is entirely trumped by DRM, but there is a case that held that, and the content owners certainly believe that fair use is now obsolete.

An extensive study done by Patricia Akester, a researcher with the Centre for Intellectual Property and Information Law at Cambridge University, lends weight to that argument that what she calls “privileged uses” (like fair dealing in the UK and fair use in the US) are adversely impacted by DRM systems.  There is a report of her study here, and the full text (over 200 pages!) is here.  Akester may have done the first empirical study of these adverse effects, and her conclusions are sufficiently gloomy to lead her to suggest a legislative solution.  She proposes that a “DRM Deposit System” be established where content owners are required to deposit either the key to their lock or an unencrypted copy of the work.  Then a user could make an argument or meet a set of requirements for access when their proposed use was clearly within a privilege.  If the content owner declined to deposit with the system, circumvention for access for privilege uses would be allowed.  Some such system, similar to the “reverse notice and takedown” proposal discussed here over a year ago, is clearly needed if fair use is to continue to function as a safeguard of free speech.

The other provision of the DMCA that imperils free expression is the notice and takedown procedure itself, which was created to protect Internet service providers (ISPs) from liability for infringing activity that happened over their networks.  In one sense, this “safe harbor” has been good for fair use, allowing the creation of user generated content sites like Flickr and YouTube where lots of fair use experimentation can take place.  But that take down procedure is being abused, with bogus notices being sent to prevent legitimate and even socially necessary criticism and parody.  ISPs are quick to takedown sites that are named in these takedown notices, and the process for getting them restored subjects the original poster to an increased risk of liability.  It is very costly, after all, to defend free speech even against a bogus claim.  So abusive takedown notices have now become a favored way to suppress criticism and comment that is unpopular with a major company or content owner.  The long tradition of “I Hate BigCo, Inc., and here is why” web site, which courts have often held to be fair use of copyrighted and trademarked content, is now much riskier than it was before.  In fact, the Electronic Frontier Foundation has even created these six steps to safegaurd a gripe or parody site, recognizing that free speech is not longer sufficiently protected by traditional provisions within the copyright law alone.

Copyright Issues and Legislation, Fair Use

How fair use was born

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The history of copyright law is a fascinating study.  Really, it is.  One truism about that history is that copyright protection (as a body of law distinct from the earlier privileges granted to printers) arose at the same time that romatic ideals of original authorship did.  The continued influence of that romantic, and highly fictionalized, view of authorship is evident in the ill-informed and self-serving comments of author Mark Halpern in this Wall Street Journal op-ed and in the new book he is flogging.  But I was reminded, by this blog post criticising Halpern from Copycense, of an article that really deepens and complicates the history of authorship, originality and copyright.  In “The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright,” Oren Bracha argues that the romantic ideal of authorship was in a continuous tension with market forces and social values from the inception of the law and throughout its development in the US.  He mines this tension for rich veins of insight into the nature of originality, the “work” that copyright protects and the rules about who should own the rights created by copyright law.  It is in the c0ntext of his discussion of how the protected work was defined that I found a fascinating perspective on the origin of fair use.

It is hard to believe that in the mid-19th century a copyright holder did not have the right to authorize an abridgment or translation of a book, or to object to such unauthorized efforts.  Yet in 1847 Justice McLean held, in Story v. Holcombe, that an abridgment did not infringe the rights held in the original, even though he admitted that it was a market substitute for that original.  Six years later, Justice Grier found that a German translation of Uncle Tom’s Cabin was not an infringement of Harriet Beecher Stowe’s rights in her original novel (Stowe v. Thomas, 1853).  Both an abridgment and a translation are clearly derivative works under today’s law, the exclusive rights to which are reserved to the copyright holder (see our last post about a translation law suit in Argentina).  So what were these justices thinking?  As Bracha points out, there was a shift in progress from looking primarily at the new work’s “usefulness to the reading audience” to primarily protecting the market value of the original in all its potential forms.  These two cases are on the trailing edge of that shift; the last gasps of the older notion of allowing free adaptations when there was a clear social benefit.

The remarkable point, to me, is that the development of fair use occurred within this same transition.  As Bracha sees it, fair use was “a vehicle for the radical enlargement of the scope of copyright.”  Throughout the middle of the nineteenth century, the scope of copyright was dramatically expanding from a limited “printers” right to prevent near-verbatim reproductions to a full-blown notion of ownership over an “abstract intellectual essence” that could find express in a myriad of forms, all of which were under the control of the author.  Fair use, created by the same judges who were overseeing this expansion, became a substitute for all of the socially beneficial uses that were previously outside the scope of copyright.  Fair use is the bete noir of rights holders and copyright maximalist, yet Bracha argues effectively that it really developed in order to make judges more comfortable with a vast expansion of copyright’s scope, precisely to provide an economic windfall to rights holders.

Bracha offers a nice summation of the tension between economic protectionism and a social ideal of broad dissemination of knowledge and information that is, he says “inherently built into a modern copyright system.” As he phrases it, such a system “creates private exclusion power over information in the name of maximizing the free dissemination of information.”  Would we actually be better off, to ask a radical question, if rights holders did not have control over translations, as they did not in 1853?  Perhaps the students of that Argentinian professor that I wrote about last week would be.  And it does not seem that fair use would do those students or their professor any good at all, even if they were in the US.  It is hard to imagine a US judge today finding that fair use would permit an unauthorized translation even in a situation where no commercial translation was availabile.  So the addition I would make to Bracha’s fascinating history is this observation: the massive expansion of copyright’s scope and its term of protection has forced fair use to do work it was never intended to do, and it is no longer an adequate safeguard of social interests; perhaps, instead of comforting ourselves with the fiction that fair use is good enough, we need to go back and look critically at the scope of copyright itself.

Copyright in the Classroom, Copyright Issues and Legislation, Fair Use

Learning from ambiguity

I have long believed that one of the most important skills one can develop in life is the ability to tolerate ambiguity and to learn from all side of a complex and irresolvable situation.  Perhaps that philosophy helps explain how I can tolerate being a copyright lawyer in the current IP environment.  But I continue to have an especially ambivalent reaction to the case involving the plagiarism detection software called Turnitin.  I wrote about the district court decision over a year ago. Now the appeal has been decided — a win for Turnitin on ever front, upholding the major parts of the district court ruling and reversing only that aspect that disfavored iParadigms, the Turnitin parent company — and I still find myself feeling rather torn.  So now I am trying to learn from the ambiguity.

The heart of the case, and the major issue affirmed by the Fourth Circuit Court of Appeals, is that Turnitin makes a fair use of submitted papers when it copies and stores them to be compared with later submissions.  On this issue, I have been convinced; the 4th Circuit opinion has put to rest my earlier doubts.  I still don’t think Turnitin is a particularly useful tool, especially for higher education, but the reasoning of the court on the fair use issue is so clear and compelling that I cannot resist their conclusion.  Besides, I really wanted to agree with them on this point all along.

There are two important points that I want to emphasize in the appellate decision that really help explicate fair use.  First, the Court is very clear that a work can be transformative, and so a favored candidate for fair use, even when the second work does not add anything to the original, but merely copies it for a different “function or purpose” that that for which the original was created.  Here is the conclusion of the Court:

“The use of the copyrighted work need not alter or augment the work to be transformative in nature.  Rather, it can be transformative in function or purpose without altering or actually adding to the original work.”

The Ninth Circuit has made similar rulings regarding Internet indexing in Kelly v. Arriba Soft and Perfect 10 V. Amazon, but it is nice to see this conclusion, which really broadens the scope of the transformative use analysis, arise in another circuit as well (especially in the one in which I live and work).  This is a significant advance in the analysis of transformative uses over its original discussion by the Supreme Court in the “Oh Pretty Woman” case, and it offers grounds for hope that many of the innovative uses of copyrighted materials that new technology make possible could be considered transformative.

Even more exciting to me, is this remark made by the Court as it considered the second fair use factor, the nature of the original copyrighted work:

if the disputed use of the copyrighted work “is not related to its mode of expression but rather to its historical facts,” then the creative nature of the work is mitigated… the district court concluded that iParadigms’ use of the plaintiffs works “related solely to the comparative value of the works” and did not “diminish the incentive for creativity on the part of the students.”

This specific holding would benefit only a fairly limited class of uses, I think, but it is significant to me because it involves the Court’s recognition that the incentive structures for different kinds of works differ.  Since the incentive structure for academic work is significantly different from that of commercial production, I would argue, the scope of transformative fair use for academic work should be broader than it might be for Disney films or songs by U2.  The reasoning of the Fourth Circuit here, its willingness to ask how this specific use impacts the incentive for these specific authors, takes a step toward that kind of argument.

In general this decision is a very comprehensive and cogent fair use analysis that deserves to be widely read.  So why am I still feeling ambivalent?  Because the Court never did address the issue that troubled me most in the lower court’s ruling, the assertion that the “click-wrap” license that the plaintiffs had to agree to in order to get access to the site was valid and enforcable, even thought the plaintiffs were minors and took steps to indiccate that they did not agree to the non-negotiable terms.  The appellate ruling, based as it was on fair use, never needed to address this holding, but I continue to think it was a mistake.  The fact that courts will give such weight to contracts that users can neither negotiate nor avoid suggests to me that this is a problem in need of a legislative solution.  I would like to see the copyright law ameded to state that non-negotiable contracts do not preempt copyright law; that is, that consumers cannot give away their statutory rights as users of copyrighted content unless they have a meaningful chance to do so intentionally and with forethought.  If we could add such a provision to the federal law, my ambivalence about the Turnitin case would vanish altogether.