Category Archives: Fair Use

Authors Alliance Amicus Brief Supports Fair Use Defense in Georgia State Case

Posted February 13, 2017

Since our founding, Authors Alliance has supported a robust interpretation of fair use that helps authors keep their works discoverable and in the hands of readers. We’ve published a number of opinion and policy articles on the subject, and our members and allies may recall that we filed an amicus brief in support of Google in the Authors Guild v. Google Books litigation, in which we argued that Google’s snippet views of scanned books from libraries made books more discoverable and served a public good by enhancing access to millions of works. We welcomed the Supreme Court’s decision not to hear the case, thereby ending the decade-long litigation and allowing the district court’s ruling in favor of fair use to stand.

Now, Authors Alliance has weighed in again on the fair use question, this time in the matter of Cambridge University Press v. Albert. The case turns on whether faculty at Georgia State University (GSU) infringed Cambridge University Press’ and other publishers’ copyrights by assigning chapters from scholarly books to their students via secure course websites. GSU argues that this limited use for nonprofit educational purposes falls within fair use, and we have filed an amicus brief with the 11th Circuit in support of that argument. In the brief, we highlight that academic authors’ primary motivation to write and publish scholarly works is grounded in their desire to share and advance knowledge. Many of our members are academic authors, and one of our members is the author of a chapter at issue in the case. They—and we—believe that this limited use of copyrighted content in a nonprofit educational setting meets the test for fair use. In the brief, we present three main arguments in support of this interpretation:

Incentives to write and publish scholarly book chapters will not be impaired by a ruling that nonprofit educational uses of these chapters is fair use.
The use of fact-, method-, and theory-intensive scholarly book chapters assigned primarily because of the originality of ideas, theses, research, data, and methods they contain, rather than on originality of expression, should tip in favor of fair use.
New options in digital publishing and trends toward open access in scholarly communications favor the fair use ruling.

The full text of the brief may be read here. We will continue to follow the case and provide updates on new developments in the litigation.

Authors Alliance Comment to U.S. Copyright Office Supports Print-Disabled Readers

Posted November 9, 2016

As part of our ongoing advocacy in the space, Authors Alliance has again responded to the U.S. Copyright Office’s call for further comments regarding anti-circumvention provisions in Section 1201 of the Digital Millennium Copyright Act. We believe in making reasonable exemptions from the law that protects digital “locks” that keep content inaccessible. In the past, we have successfully advocated for for such an exemption supporting the creative work of multimedia ebook authors, and earlier this year, we submitted comments in support of streamlining the law’s rulemaking process.

Our most recent comment is in favor of a permanent exemption that would improve access to copyrighted works by people who are blind, visually impaired, and print disabled. There is broad consensus that such an exemption is beneficial and necessary; in fact, it has been granted in every rulemaking cycle since 2003. We fully support a permanent exemption that would help make our members’ works accessible to these audiences. Read the full text of the comment here.

New Survey Informs Our Guide to Fair Use for Nonfiction Authors

Posted November 3, 2016

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CC0 image by andibreit

In partnership with organizations that support nonfiction authors, Authors Alliance is developing a Fair Use Best Practices Guide for Nonfiction Authors to help nonfiction authors navigate fair use. To make this the most effective and useful resource possible, we’re requesting your help via a short survey.

Nonfiction authors often incorporate preexisting material in their works (e.g., quotations, images, figures, lyrics, and sound recordings). Sometimes including preexisting material is permitted under an exception to copyright protection called “fair use,” but other times such uses require obtaining permission or a license from the copyright holder. It can be difficult for nonfiction authors or publishers to know when to rely on fair use and when to seek permission or a license.

Our forthcoming Fair Use Best Practices Guide for Nonfiction Authors will identify the most common situations that nonfiction authors encounter when incorporating preexisting materials into their works. It will also provide authors and publishers with guidelines that reflect the community’s understanding about acceptable fair use practices when using these materials. We need your help to make the resource useful to the nonfiction author community!

Please take ten to fifteen minutes and respond to our survey by November 18, 2016. We greatly appreciate your input on this important issue. Your responses will help to inform this guide and build a useful resource for you and your colleagues.

Important Fair Use Decision Stands, Helps Keep Authors’ Works Findable

Posted April 18, 2016

Pamela Samuelson, President, Authors Alliance

There was very good news for authors in the Supreme Court’s decision not to review last year’s ruling in the Authors Guild v. Google litigation. That decision, which will now stand, found that Google’s scanning of in-copyright books from research library collections for purposes of creating an index and serving up snippets in response to user search queries was fair use, not copyright infringement. The Authors Guild’s leadership (and its lawyers) are undoubtedly disappointed in this outcome. But all authors who want their books to be found by readers who are interested in learning from those books have reason to celebrate the end of this decade-long litigation.

While we obviously can’t know for sure what the Court would have done had it decided to hear the Guild’s appeal, it is fair to infer that the Court was not so outraged by the Second Circuit’s ruling that it felt compelled to put the case on its docket. The Court’s rejection of the Guild’s petition does not, of course, mean that it approved the fair use ruling. Yet it is worth noting that the Court gave considerable deference to Judge Leval’s conception of fair use in its 1994 Campbell v. Acuff-Rose decision. It was the very same judge’s fair use analysis that the Court would have reviewed had it taken the Authors Guild v. Google case.

Authors Alliance filed a friend of the court brief in support of Google’s fair use defense, saying: “Book Search makes it possible for many who are not privileged to have physical access to research library collections to be able to discover that our works exist. Interested researchers should be able to find in an efficient way the ideas and contributions to human knowledge contained in our writings. We want our intellectual legacies to extend to a new generation of readers who nowadays search and find books almost exclusively online. Creation of a full-text searchable database of books provides these benefits.”

Judge Leval recognized the public benefit in making books more findable: “Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them.”

Judge Leval could have gone on to say that authors of published books want those books to be findable and to be useful to readers who are looking for information that the books contain. So it isn’t just the public (and Google) who benefit from Book Search, but these authors as well.

International Fair Use Developments: Is Fair Use Going Global?

Posted February 25, 2016

by Raoul Grifoni-Waterman, Copyright Policy Research Assistant at Authors Alliance, LL.M. Candidate at U.C. Berkeley Law, and Leiden University LL.M.

Every country leaves some room in its copyright laws to protect free expression and allow for the everyday uses of copyrighted works that creators and consumers need. But not everyone takes the same approach.

Out of 47 countries with fair use or fair dealing exceptions to copyright infringement, as surveyed in The Fair Use/Fair Dealing Handbook, only eight had a flexible fair use limitation on copyright infringement. The other type of surveyed exception is fair dealing, where an action must generally be directed toward a predetermined list of purposes in order to be deemed fair.

While the broader fair use exception—which Authors Alliance celebrates—is plainly the global outlier, there are indications that it is gaining traction.

The European Union, for example, provides an exhaustive list of copyright infringement exceptions in its 2001 Copyright Directive. However, while European Union member states may be constrained in implementing a general fair use exception in their national laws, there are calls for moving closer to its flexible approach. The United Kingdom, for example, was persuaded to examine fair use after hearing about its role in the U.S. technology economy. The resulting review found much commendable about fair use, and—conservatively—recommended the implementation of a new, more limited exception, to try and capture some of fair use’s openness to unexpected technological developments.

Fair Use Week Guest Post: Lydia Loren on Fair Use as More Than Just a “Defense” to Infringement

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Lydia Pallas Loren is a founding member of Authors Alliance and a law professor at Lewis & Clark Law School in Portland, Oregon. Her recent article Fair Use: An Affirmative Defense? appears in the University of Washington Law Review.

Larry Lessig once famously declared, “[F]air use in America simply means the right to hire a lawyer….” That view of fair use seems to accept that fair use is a defense to a claim of infringement and seems to suggest that the burden of proving a use is fair lies with that user. The Supreme Court in its 1994 fair use decision in Campbell v. Acuff-Rose Music, Inc. once spoke of fair use as an affirmative defense. But is that really the right way to view this critically important limit on copyrights?

In civil litigation in the United States, it matters who bears the burden of proof: the copyright claimant or the possible fair user? Calling fair use an affirmative defense places the burden squarely on the defendant. But that is not how the doctrine of fair use was originally conceived. In the case that is most often credited as the fountainhead of the fair use doctrine, Folsom v. Marsh, Justice Story did not cast his inquiry as one based on a “defense”; rather, the factor-based evaluation that we now call fair use was the central inquiry into whether the defendant’s use invaded the copyright owner’s rights. Justice Story described the evaluation of the quantity of copying as “the real hinge of the whole controversy, and involves the entire merits of the suit.” He did not view the inquiry into the magnitude of the copying, the reasons for it, or the harm to the plaintiff’s market as anything other than the central question of infringement.

Fair Use Week Guest Post: Rebecca Tushnet on Fair Use and the DMCA’s “Anticircumvention” provisions

Posted February 24, 2016

Rebecca Tushnet is a founding member of Authors Alliance and a Professor of Law at the Georgetown University Law Center.

My work on section 1201 of the Digital Millennium Copyright Act (DMCA), which prohibits use of “circumvention” technology such as DVD rippers or, potentially, even screen capture software in order to make video clips for use in new works, has convinced me that it’s one of the most counterproductive provisions in copyright law. Counterintuitively, Section 1201 makes the process of acquiring video illegal even if the result is unquestionably a fair use.

On behalf of the Organization for Transformative Works, I have participated three times in the triennial exemption process that provides temporary exceptions for certain users. The community I work with, vidding, is full of artists who make works commenting on and transforming existing works, adding new meaning and insights—from reworking a film from the perspective of the “villain” to retelling the story as if a woman, instead of a man, were the hero. Section 1201 threatens these traditional artistic remix practices in new media.

The idea that it could be unlawful to perform the steps necessary to take a lawful act is mystifying to most people, including remixers.^[1] Indeed, as researcher Lucas Hilderbrand observed, “when people learn about the extent of the DMCA restrictions, they respond with shock and outrage, which tends to turn either to pessimism or to willful disregard for the law.”^[2] Under §1201, remixers risked having their fair uses suppressed simply because they did what seemed like the fairest thing for the copyright owner and paid for a copy from which they could clip, rather than downloading an unauthorized copy without copy protection.^[3] Indeed, the few remixers who did know about the DMCA were pushed into illegitimate markets.

Authors Alliance Celebrates Fair Use and Fair Dealing Week!

Posted February 22, 2016

This week is Fair Use and Fair Dealing Week, a time to celebrate, reflect on, and explain these important rights. Authors Alliance is pleased to participate, together with the week’s organizers at the Association of Research Libraries and dozens of other participating organizations.

While fair use rights are also valued by educators, consumers, and technologists, they play a particularly important role for authors. Fair use provides the essential creative freedom to comment on, criticize, build on, and transform others’ works, and helps to ensure that copyright serves rather than hinders free expression.

But, as our own Pamela Samuelson illustrated last year, fair use continues to benefit authors after their works are created, helping preservation efforts by archives and libraries, and enabling new discovery tools that help them reach readers.

While most creators intuitively understand many fair use principles, being familiar with the law is important to fully and properly exercising its rights. Now is the perfect time to brush up, using the information posted at the Fair Use and Fair Dealing Week HQ, or at our own Fair Use FAQ.

And in celebration of these essential rights, we’ll be posting new items exploring different fair use, its importance, and its future throughout the week. Stay tuned!

Why Authors Alliance Supports a Broader View of Fair Use Than the Authors Guild

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by Authors Alliance co-founder Pamela Samuelson

In December 2015, the Authors Guild asked the U.S. Supreme Court to review the Court of Appeals ruling that Google had made fair use of the in-copyright books that Google scanned from research library collections for its Book Search project in order to index their contents and serve up snippets in response to user search queries. Seven amicus curiae (friend of the court) briefs were filed in February in support of the Guild’s position. (The briefs can be found here.)

A common theme running through these briefs is that fair use should not be available as a defense to copyright infringement unless the defendant’s use resulted in the creation of a new work of authorship, such as a parody of a popular song or a critical commentary that quotes from the criticized author’s work. If someone merely uses an author’s work for a different purpose than the original and does not create a new work, the briefs argue that this should not be considered “transformative,” as the Second Circuit has ruled in the Google case, or weigh in favor of fair use.

“Transformativeness” has become an important factor in fair use cases since the Supreme Court’s 1994 decision in Campbell v. Acuff-Rose Music, Inc., which tested whether a rap parody version of Roy Orbison’s famous “Pretty Woman” song was fair use or infringement. In deciding whether the challenged use is fair, the Court directed judges to consider if the use ”supersede[s] 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 Authors Guild reads this definition differently than the Second Circuit does.

The Authors Guild’s attack on the different purpose cases is, of course, mainly aimed at Google. But if the Guild and its amici are right, then a rather large number of “different purpose” fair use cases that courts have decided in the past decade or so would seemingly fall as well. So let’s review some of them to consider the implications of the Guild’s position.

Begging To Differ With Authors Guild About Google Book Search

Posted February 13, 2016

A version of the following letter by Authors Alliance co-founder Pamela Samuelson ran in the Wall Street Journal on February 13 in response to an earlier opinion piece published by the Authors Guild. In the full-length editorial below, Samuelson takes issue with the claim that Google Book Search undermines fair use and hurts authors. Many of our members and allies are familiar with the ongoing litigation between the Authors Guild and Google. We at Authors Alliance filed an amicus brief in support of the fair use defense, and have been closely following the case. Thus far, rulings have favored Google, and the Authors Guild is currently petitioning the Supreme Court to review the case. (The Court’s decision on whether or not to grant certiorari is expected this spring.) In light of this, strong voices in support of fair use and the public good need more than ever to be heard.

In a recent op-ed published in the Wall Street Journal, entitled “How Google Stole the Work of Millions of Authors,” Roxana Robinson, President of the Authors Guild, charged Google with stealing the works of millions of authors because Google digitized books from research library collections, indexed their contents, and served up a few snippets per book in response to user search queries.

I beg to differ. Google Book Search is a boon for both readers and authors.

Book Search consists overwhelmingly of non-fiction books, dense with knowledge, scanned from university research library collections. They were mostly written by academic authors in the hope and expectation that the books would be read by others and contribute to the ongoing progress of knowledge creation and dissemination. Their authors want the books to be discoverable.

Conventional research library catalogs can help some prospective readers to find some books, but they provide only limited information about the books in the libraries’ collections and fall short of ensuring the long-term intellectual legacies of the books’ authors. Full-text search databases such as Google Book Search do considerably more to stave off scholarly oblivion. These services offer authors new hope that their books will find readers and will contribute to scholarly discourse that will promote the ongoing progress of knowledge. Even those who lack physical access to research library collections can find out that books exist that they might want to buy or borrow. This is consistent with the constitutional purpose of copyright law.

Perhaps some best-selling Authors Guild members do not need full-text search tools to reach their audiences. But the Guild’s position does not represent the interests of all authors. Many professional writers, as well as academic authors, are likely to benefit from full-text search tools such as Book Search. Indeed, an empirical study of the views of 880 professional writers, introduced in evidence in the Google Books case, reported that well over half of authors surveyed affirmatively approved of Book Search snippets, almost half thought that Book Search snippets would help sales of their books, and only a tiny minority (four percent) thought that Book Search snippets would be harmful.

Despite the many benefits that Book Search provides for authors and readers, the Authors Guild and a small number of its members have been seeking a windfall award of $3 billion in statutory damages for the copying of scholarly books from research library collections in which very few of the Guild’s members actually own copyright interests. The Guild is also seeking injunctive relief to remove Book Search from the Internet, a sweeping remedy that would harm the interests of authors who want readers to find their books.

In ruling against the Authors Guild, the Second Circuit concluded that Google Books “augments public knowledge by making available information about plaintiffs’ books without providing the public with a substantial substitute for matter protected by the plaintiffs’ copyright interests.” The information that Google makes instantaneously available about relevant books “would otherwise not be obtainable in lifetimes of searching.”

This fair use ruling should stand. It serves the interests not only of readers, but also of authors who want their works to be discovered during their lifetimes and beyond.

Read the letter in the Wall Street Journal.