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.

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.

The following is a guest post by Aleksander Danielyan and Lauren Wong, third-year law students of the Intellectual Property, Arts, and Technology Clinic (IPAT) at the University of California, Irvine School of Law. Over the past year, UCI-IPAT and the Samuelson-Glushko Technology Law & Policy Clinic represented Authors Alliance in a Library of Congress Rulemaking seeking to preserve authors’ fair use rights in the digital age.

Over the past year, we have had the pleasure of representing Authors Alliance along with a coalition including the American Association of University Professors, the Society for Cinema and Media Studies, the University Film and Video Association, and film scholars Bobette Buster and Mark Berger in a Library of Congress rulemaking in which we sought to preserve e-book authors’ rights to make fair use in the digital age.

At issue is the Digital Millennium Copyright Act. As Authors Alliance has written previously, the DMCA makes it illegal to break encryption or any technological lock that protects copyrighted content. The predictable effect is that many legitimate uses are impossible under the DMCA. In our case, authors want to make fair use of audio and video content in e-books—but can’t because the DMCA makes it illegal to access popular media like DVD and Blu-ray.

In comments filed over the past year, we asked for an exemption to allow multimedia e-book authors to circumvent technological protection measures in order to embed high-quality content into their works for fair use purposes—impossible without a special exemption from the Librarian of Congress. A previous exemption allowed circumvention of DVDs and online distribution services only in non-fiction e-books offering film analysis. This round, we asked that the 2012 exemption be modified to allow authors to access Blu-ray content and use this high-quality content in all works, not just film analysis.

Much of this year-long effort involved collecting evidence and demonstrating that access to high-quality content like Blu-ray is essential for e-book authors to exercise their fair use rights in the digital age. We also emphasized the difficulties e-book authors face when licensing such content. In May we traveled to Washington, D.C. to bring our case to the staff of the U.S. Copyright Office and the National Telecommunications and Information Administration. In a lengthy hearing at the Library of Congress, we presented passionate and informative perspectives on the 1201 exemption. Authors Alliance Executive Director Mike Wolfe testified, along with noted film scholar Bobette Buster. UCI Professor Jack Lerner and IPAT student Aaron Benmark also testified, together with Professor Blake Reid and Molly McClurg from the Technology Law & Policy Clinic at Colorado Law.

Late last month, the Acting Librarian of Congress announced this round’s Final Rule, which included one of the two modifications we had requested. The Rule provides an exemption that allows e-book authors “offering film analysis” to circumvent digital locks on Blu-rays, DVD, and digitally transmitted video such as downloads and streaming for purposes of criticism and commentary. The Rule gives authors everywhere access to a wealth of high definition content—particularly, from Blu-ray—that they need in order to make fair use in multimedia e-books. Unfortunately, the Acting Librarian declined to provide an exemption for e-book authors writing about subjects other than film analysis.

Although we are disappointed that the Rule did not provide an exemption for all authors who need it, we are celebrating the Rule as a victory for fair use in the digital age. The Rule demonstrates that the Register recognizes the inherent danger to lawful uses that the DMCA presents in a swiftly changing technological landscape. As e-book technology continues to become more interactive, engaging, and personalized to the needs of individual readers, we see immense potential in a market for e-books that can evolve at the fast pace of technological innovation. But in order for that to happen, authors must be able to make the type of fair uses that they have always made in the brick-and-mortar world. Fortunately—at least for authors offering film analysis—this Rule essentially preserves that right.

We would like to thank our fantastic colleagues at Authors Alliance for the opportunity to represent them in such an important proceeding; Bobette Buster, the AAUP, and others who joined this effort; IPAT students Ranika Morales, Mike Lee, Kyle Reynolds, and Aaron Benmark; the talented team at Samuelson-Glushko Technology Law & Policy Clinic, including Professor Blake Reid and students Molly Priya McClurg and William Kaufman; and our visionary clinic director, Jack Lerner.

Authors Alliance co-founder Pamela Samuelson has published an opinion piece in today’s Chronicle of Higher Education on the substantial benefits the recent fair use ruling in the Google Books case brings to scholarly authors.  She outlines four reasons why the ruling in favor of Google in the Authors Guild v. Google case advantages authors and researchers, despite the Guild’s arguments to the contrary. The Authors Guild has announced that it will petition the Supreme Court to review the decision. If the Court does take the case, we at Authors Alliance will continue our involvement to show our support for authors, scholars, researchers, and the public—all of whom benefit from fair use access to knowledge and information.

Today the Second Circuit Court of Appeals issued a widely anticipated ruling in favor of the defendants in the Authors Guild v. Google case, marking a major victory for fair use in a lawsuit which has been making its way through the courts for a decade.

A brief summary of the litigation highlights the crucial importance of this decision. In 2005, the Authors Guild filed suit against Google, claiming massive copyright infringement due to the digitization of copyrighted works by Google Book Search. After protracted negotiations, a controversial settlement agreement was proposed in 2009, but ultimately rejected in 2011 by Judge Denny Chin. In November 2013, the case was dismissed on the grounds that Google Books’ use of digitized materials met the criteria for fair use, and was of significant public benefit.  Chin also rejected the plaintiffs’ argument that Google Books does economic harm to copyright holders; on the contrary, he stated that Book Search can, in fact, increase sales. In April 2014, Authors Guild appealed that decision, but the Second Circuit has now unequivocally reaffirmed the earlier rulings in favor of Google.

Today’s decision states that “Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals.”

For those who have been following the Authors Guild litigation, today’s decision—significant as it is—was not unexpected. In recent years, a growing body of caselaw has developed around fair use, some of which originated with another unsuccessful lawsuit. That case, Authors Guild v. HathiTrust, filed in 2011 as a parallel action to Google Books and concerning the use of books digitized by Google and shared among a consortium of libraries, had already been decided in the defendants’ favor in 2012, a ruling that was upheld on appeal by the Second Circuit in June 2014.

As an organization whose members believe in making their work available and accessible, Authors Alliance stands firmly on the side of fair use.  Last July, we filed an amicus brief with the Second Circuit in support of the fair use defense in this case, because Book Search increases the discoverability of work without threatening its marketability. One year ago, we expressed our hope that the court would rule in favor of Google and Book Search. Today, we applaud the courts’ decisive reaffirmation of fair use in helping authors to make their work more widely available and accessible to researchers, students, and the public.

We have blogged several times about Authors Alliance’s effort to obtain an exemption to the Digital Millennium Copyright Act that will preserve authors’ right to make fair use in the digital age.

Yesterday, our team testified in support of this effort at a hearing at the Library of Congress in Washington, DC. Authors Alliance Executive Director Michael Wolfe was joined by noted film scholar Bobette Buster and representatives from the Intellectual Property, Arts, and Technology Clinic at University of California, Irvine School of Law and the Samuelson-Glushko Technology Law & Policy Clinic at University of Colorado School of Law.

The exemption, which we explain in greater detail here and here, would protect the fair use rights of e-book authors, allowing them to bypass the encryption on DVDs, Blu-ray, and other media in order to use film clips in multimedia e-books. This would be a renewal and modification of a more limited exemption that was granted in 2012 and will expire this fall. Unlike the current rule, the exemption we seek would allow authors to access Blu-ray content and would cover important fair uses beyond the narrow category of criticism and commentary in film analysis.

The hearings went well. The Copyright Office posed many questions early and often, but Michael and Bobette answered them ably, with assistance from their legal team of UCI Law student Aaron Benmark, CU Law student Molly Priya McClurg, CU Professor Blake Reid, and UCI Professor Jack Lerner. The debate revolved around several questions, including the scope of the proposed exemption and the necessity of High Definition footage in the modern multimedia e-book market. The hearing ran long, lasting about two hours and twenty minutes, and we were very glad to have the opportunity to answer all the Office’s questions and to provide additional information demonstrating why this exemption is so important to authors.

At the end of the day, we are confident that our efforts will help the Copyright Office recognize the fundamental realities at play in this proceeding:

• As rightsholders, authors make responsible fair use, and we do so in many fields beyond film analysis (a limitation in the current exemption);
• The modern e-book market demands HD footage and we need to access HD footage in order to make our fair use;
• And finally, nothing in the exemption we propose carries any risk of harm to rightsholders. There has not been even a hint that the current exemption has led to copyright infringement—and there’s no reason to think that our proposed one will be any different.

We’ll know the result of the hearing in the fall, when the Register of Copyrights makes her final recommendation and the Librarian of Congress adopts a final rule. In the meantime, Authors Alliance will continue our work in support of authors who write to be read.

Guest post by Founding Member Michael Madison

For a week about fair use, let me make fair use about authorship, and the shared goals of copyright, and in a very specific way.

First, some background: I first wrote at length about the purposes and law of fair use in a long paper published in 2004, A Pattern-Oriented Approach to Fair Use. I surveyed fair use cases and offered four related conclusions: To begin with, fair use decisions were (and are) more predictable and consistent than is commonly thought, and fair use decisions can be clustered around the idea that fair use should align with a “pattern” of creative practice. More broadly, as I wrote in a later paper (Some Optimism About Fair Use and Copyright Law):

creativity and knowledge production is an emergent property of patterned social behavior; … those patterns exist concurrently with but distinct from market-based production of knowledge goods by individuals and firms; [and] those patterned behaviors can be identified as institutions, and exempting those institutions from the discipline of copyright’s scheme of exclusive rights is likely to increase the social welfare produced by the copyright system as a whole and is likely to not diminish the social welfare produced by the market side of copyright

In short, what’s good for fair use is good for authors, and vice versa.

More important, however, that paper was timed – coincidentally – to align with the emerging “Best Practices in Fair Use” project at the Center for Social Media (now Center for Media and Social Impact) at American University, and the efforts of that project’s leaders, Pat Aufderheide and Peter Jaszi.

The key insight motivating the Best Practices project was a close cousin of my pattern-oriented argument: That the power of fair use lies not merely with individuals but, importantly, with communities – creative communities. Authorial communities.

Since 2006, CMSI has partnered with a number of not-for-profit organizations to produce “statements” of best practices for members of specific creative communities that are grounded simultaneously in deep knowledge of each community’s sense of its own fair creative practice as well as in generally accepted principles of copyright law. The full roster and text of the statements are available at the CMSI website, at http://www.cmsimpact.org/fair-use (disclosure: for several of the statements, I served on a Board of Legal Advisors that reviewed them prior to publication).

The Statements, like fair use itself, are imperfect in any number of ways. But the perfect need not be the enemy of the good. And it’s very good indeed to have a means for recognizing that creative communities’ practices inform the shape of fair use law, and allowing those communities to take active and considered part in articulating how fair use should work for them. They are an important reminder that while copyright’s exclusive rights are important to authors as creators of individual works, fair use is equally important to authors as members of communities.

Authors Alliance Co-Founder Pamela Samuelson

Authors and artists rely on copyright’s doctrine of fair use far more than they may realize. February 23-28 is Fair Use Week this year, so it’s a good time to think about when and why fair uses benefit authors. (Fair uses of copyrighted works are not infringements; here’s a link to the Authors Alliance FAQ about fair use.) Authors and artists are likely to make and benefit from fair uses in every phase of the creative process and long thereafter.

The preparatory phase of creative work often involves making and being surrounded by fair use copies of materials that contain the information or inspiring words or images that the author/artist needs as raw materials. Sometimes authors search through large numbers of documents or other works to find the exact words or images that they need to prove or illustrate a point they want to make or to set context for the story they plan to tell. Often, the perfect source can only be found by scouring through reams of material, selecting from this a relatively small number of candidates for the use, and then as they create the work they have in mind, figuring out which is the right quote or image to use and where exactly to place it. Fair use copying is an integral part of this phase of the creative process.

Authors Alliance Co-Founder Molly Van Houweling

In honor of fair use week, we’re taking a look back The Ecstasy of Influence, by award-winning author Jonathan Lethem. (Read more about Lethem’s work in this recent review.)

Lethem, who serves on the Authors Alliance Advisory Board, does not mention fair use in his 2007 essay (which is also one of a collection in his book of the same name). Instead, The Ecstasy of Influence embodies fair use with both its text and technique.

The text is a reflection on the role of inspiration and appropriation in all acts of artistic creation. Its purpose (as Lethem later described in an essay entitled The Afterlife of Ecstasy), was to reveal “the eternal intertextuality of cultural participation—of reading, writing, making things from other things.” In so doing, Lethem implicitly defends fair use, which the U.S. Supreme Court has described in Campbell v. Acuff Rose as a “guarantee of breathing space within the confines of copyright” that often privileges the transformation of copyrighted works into new works that do not supersede the originals but rather add “something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

The Ecstasy of Influence demonstrates this type of transformation through its technique of respectful re-mix. The 8000-word essay reads as a coherent expression of a singular authorial voice. But Lethem reveals at the end why the subtitle is “A Plagiarism.” He presents a key, in which he “names the source of every line I stole, warped, and cobbled together as I ‘wrote’ (except, alas, those sources I forgot along the way)” and clarifies that “[n]early every sentence I culled I also revised, at least slightly — for necessities of space, in order to produce a more consistent tone, or simply because I felt like it.”

Authors Alliance Co-Founder Pamela Samuelson

Having read several of Ian Fleming’s books as a youngster and seen virtually every James Bond movie, I have long been intrigued by the question: what is the essence of James Bond as a character? 007, yes. Shaken, not stirred, for sure. Handsome in a tuxedo or a swimsuit, yes, as well. Narrow escapes in exotic locations, that too. But surely these bits of his persona are not the essence of his (fictional) character.

The question is not just one for idle debate on a late winter evening. There has been litigation about whether those who depict James Bond-like characters without getting permission from those who claim copyrights in the books and movies are infringers.

MGM, for example, once sued Honda for copyright infringement because one of Honda’s television commercials featured a Bond-like character in a Honda del Sol automobile to show off the car’s detachable roof.

In the ad, a young, well-dressed couple was driving along a highway in one of Honda’s cars while being chased by a high-tech helicopter. A monstrous villain with metal-encased arms jumped out of the helicopter, landed on the car’s roof, and threatened the couple with imminent harm. To dispatch the villain, the male driver, with a flirtatious turn to his companion, released the Honda’s detachable roof, sending their foe into space and effecting the couple’s speedy get-away.

A well-known adage of copyright is that this law protects an author’s expression, not his or her ideas. So is Bond’s character an idea or an expression?