Category Archives: Fair Use

First Sale, Fair Use, and Digital Downloads:
Capitol Records v. ReDigi

Posted February 22, 2017

In honor of Fair Use Week, we are delighted to feature this guest blog post from NYU Technology Law & Policy Clinic students Cassie Deskus and Kristen Iglesias discussing the role of fair use in the ReDigi case.

The Second Circuit will soon hear arguments in Capitol Records v. ReDigi, a case that will determine if and when consumers will be able to resell lawfully owned digital media. ReDigi provided an online marketplace for reselling music purchased from iTunes. ReDigi’s software allowed users to transfer music from their computer to ReDigi’s cloud servers, where it was offered for sale. Upon a subsequent sale, the software transferred the file to the buyer’s computer. The transfer process attempted to avoid copyright issues by employing strong verification safeguards and ensuring that there was only ever one full copy of the song in existence at any given time.

If ReDigi had been in the business of reselling physical CDs or books, resale would have been an uncontroversial application of first sale—a doctrine which permits the owner of any lawfully owned copy to dispose of that copy without restriction. The District Court, however, held that each song transfer was an unlawful reproduction, effectively preventing the owner of a digital work from reselling it. Unless the opinion is reversed, the only way consumers will ever be able to resell their digital music or books is to sell their entire digital device. In other words, to resell a $0.99 eBook you finished reading years ago, you’d have to sell your entire tablet and all of its contents!

This should be concerning to all creators of digital works. Without lawful resale, the “secondary markets” we enjoy in the physical sphere–libraries, used bookstores, garage sales, and even donations–cease to exist in the digital sphere. Not only will authors be unable to reach the same listeners and readers via digital publication that they might through analog publication, but those same listeners and readers won’t be able to easily share the digital works that they love.

That’s why the NYU Technology Law & Policy Clinic filed an amicus brief on behalf of over 20 copyright scholars, including several Authors Alliance members, arguing that any alleged unlawful reproductions are covered by either first sale or fair use.

As many Authors Alliance members know, the first factor of fair use is “the purpose and character of the use.” We argued that exercising a copy owner’s first sale rights, which have been recognized by courts and Congress for over one hundred years, is about as fair a purpose as can be. The public benefits resulting from digital secondary markets also favor this interpretation. The fact that ReDigi was a commercial enterprise does not change this outcome—indeed, many commercial uses of digital copyrighted works have been held to be fair use. ReDigi’s platform parallels secondary markets that have always existed in the physical realm; such markets are a testament to copyright law’s tolerance for, and accommodation of, robust resale rights. We hope that the Second Circuit reverses the lower court and preserves digital first sale, especially given the strong fair use arguments favoring ReDigi. If you’d like to read the rest of our argument, the entire brief is available here.

Fair Use Week: Our Best Practices Guide is Underway!

Posted February 21, 2017

This Fair Use/Fair Dealing Week, we’re highlighting a new project that’s of special interest to any non-fiction author who has ever been baffled by fair use. Following on the success of our educational guides for rights reversion and open access, we are hard at work on our latest project: a new guide to fair use best practices for non-fiction authors. Inspired by the work of Peter Jaszi and Patricia Aufderheide at the Center for Media and Social Impact at American University, the third volume in our growing library of educational resources will focus on best practices for nonfiction authors—from biographers to science writers, historians to literary critics, memoirists to academics, and beyond—who depend on the use of copyrighted materials in their work.

Authors Alliance is partnering with the Samuelson Law, Technology, and Public Policy Clinic at UC Berkeley Law to draft the guide, which will feature extensive input from non-fiction authors, copyright experts, and partner organizations. The goal of this fair use guide is to empower authors to exercise their right to use source materials to further their research and writing goals by helping them to make confident fair use decisions. The guide will help nonfiction authors who want to do things like:

Include song lyrics in an academic paper discussing musical trends;
Use several lines from a novel to analyze the author’s use of metaphors in a work of literary criticism;
Use a chart in a scientific paper to demonstrate a process;
Incorporate a photograph in a biography to provide historical context;
And much more!

We plan to release the guide this year, and look forward to keeping our members, allies, and partner organizations up to date on the project. If you have a question, concern, or real-life example of a fair use issue that you would like to see addressed in the guide, let us know! We can always be reached at info@authorsalliance.org.

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

Posted

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!