Category Archives: Fair Use

In Search of James Bond’s Essence

Posted February 8, 2015

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?

Authors Alliance Submits Comment on 1201 Exemption Petition

Posted February 6, 2015

Last fall, Authors Alliance began the process of petitioning for an exemption to the law that prohibits the circumvention of DRM in order to facilitate the fair use of copyrighted content in multimedia ebooks. We are pleased to announce that the next step in the process of obtaining the exemption is complete.

Working with counsel from the University of California, Irvine Intellectual Property, Arts, and Technology Clinic and the University of Colorado, Boulder Samuelson-Glushko Technology Law & Policy Clinic, and our co-petitioners, the American Association of University Professors, the University Film and Video Association, the Society for Cinema and Media Studies, and authors Mark Berger and Bobette Buster, the multimedia ebook authors’ comment in support of the petition was filed today.

We will continue to provide updates on this important exemption as the process moves forward.

Download Authors Alliance’s comment.

Authors Alliance seeks DMCA exemption to enable production of multimedia ebooks

Posted December 13, 2014

Multimedia ebooks are still in their early days, but they present new opportunities for authors to express their ideas, creativity, and scholarship. As UC Press’s Alison Mudditt said at the recent Authors Alliance panel at Harvard, “there are an increasing number of faculty who are doing research that cannot be reproduced purely in print form.” And the opportunities presented by multimedia ebooks extend well beyond academia. At the same panel, creative nonfiction writer Rachel Cohen explained how multimedia possibilities are changing her work:

There is, however, a legal wrinkle that can hamper authors’ ability to create multimedia works when those works depend on the use of third-party content for purposes like criticism and commentary. While authors can easily and lawfully quote one another’s words to these ends, the law introduces difficulties when it comes to making quotation-like uses of digital content.

Center for Media and Social Impact Fair Use Best Practices Guides

Posted December 4, 2014

Using Fair Use to Improve Access to Orphan Works in Libraries and Archives

Posted

Guest post by Founding Member David Hansen

Today we celebrate a new tool that will make it easier for libraries and archives to apply the important copyright doctrine of fair use to their collections containing orphan works, especially as they put those works online. I, along with research teams at American University and UC Berkeley, am pleased to announce the release of the Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and Other Memory Institutions.

The orphan works problem is one of the best examples of why the United States needs comprehensive copyright reform. Since the enactment of the Copyright Act of 1976, the U.S. has extended copyright protection, shrunken the public domain, increased the range of statutory damages, and, through the elimination of copyright formalities, made it easier than ever for copyrighted works to become irretrievably separated from their owners.

Because of those policies, orphan works—i.e., copyrighted works whose owners cannot be located—have become increasingly common, especially in collections of older works such as those held by libraries and archives and used by authors to do research and create new works.

Libraries, authors, and readers are unsure of what they can do with orphan works because they face a risk of liability should they use them only to have an unfindable owner reappear to file a lawsuit. Earlier this year Pamela Samuelson wrote on this blog about why orphan works are so important for authors, and why the Authors Alliance has made these issues a priority in its Principles and Proposals for Copyright Reform.

Although bad U.S. copyright policy has created this problem, many now recognize that one shining example of good U.S. copyright policy—the commitment to a strong and flexible fair use doctrine—can limit its effect. Fair use, as the U.S. Supreme Court has explained, “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Among other things, fair use is what lets authors quote, excerpt, and even copy works for purposes of criticism, comment, parody, and other new “transformative” uses.

The Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and Other Memory Institutions helps put fair use to work by giving members of the library and archive community guidance about how to apply fair use to the digital preservation of, and provision of access to, special collections containing orphan works.

The Statement helps libraries and archives make uses that are supported by key fair use considerations: making uses that are transformative, using the work for a different purpose from the original, and making uses that minimize the likelihood of harm to the potential market for the work. The statement also focuses on making uses that are ethically grounded and in good faith, aspects of the fair use doctrine that librarians and archivists emphasized were important considerations for their community.

Libraries and archives have for long asserted fair use in making collections containing orphan works more available. Since the late 1990’s the Library of Congress has asserted fair use when providing digital access to orphan works in its American Memory collections. More recently, librarians and archivists have explained similar uses in their submissions to Copyright Office requests for information about orphan works. Scholars (notably, UC Berkeley’s Jennifer Urban) have also made the case for how fair use can help solve the orphan works problem.

The value in this Statement is that it documents and shares community thinking about best practices—emphasizing not just that fair use is an option, but how it can be applied most effectively within community norms. Best Practices like this have a good history of helping user communities make collective progress in asserting fair use. Communities of documentary film makers, research libraries, journalists, and so on have created similar highly-successful fair use best practices of their own.

This orphan works best practices Statement will benefit authors as well, in at least three ways.

For one, the principles that it articulates are can be used by authors in their own orphan works uses. To be sure, this Statement was created by and for librarians and archivists, but authors who have access to orphan works in their personal collections can draw from these guidelines as well to make orphans more available.

Second, the improved access to orphans works that libraries and archives will provide will facilitate research by authors who can then draw upon them in creating new works.

Third, improved access to these collections will help reconnect works formerly thought to be orphans to their owners. By putting works in a format that the public can use online, long-neglected works are more likely to be rediscovered, researched, and hopefully reunited with their authors. For “authors who write to be read” this is the best possible outcome.

Of course, the application of fair use to orphan works in libraries and archives, and the release of this Statement in particular, does not solve every aspect of the orphan works problem. Those who create commercial derivative works, for example—a translation or a documentary film—might need more assurance than fair use can provide regarding long-term use of orphan works even after an owner emerges.

Small tweaks to copyright law, such as limiting the types of remedies (including injunctive relief) that are available after an individual conducts a reasonably diligent search, and new recording requirements designed to prevent works from becoming orphans in the first place, might be appropriate. Members of the UC Berkeley Digital Copyright Project Team, of which I am a member, have proposed just such reforms in comments to the Copyright Office and in a recent article published in the Columbia Journal of Law & the Arts titled Solving the Orphan Works Problem for the United States.

Still, this Statement represents a positive development in enhancing access to library and archive collections that authors rely upon to create new works and to preserve and disseminate their own works to new readers.

Educational Fair Use Update: Congressional Hearings and Cambridge University Press v. Patton

Posted November 18, 2014

Pam Samuelson & Mike Wolfe

At Authors Alliance we keep a close eye on what’s going on in fair use litigations that could have lasting effects on authors whose primary goal is create and disseminate their works with the purpose of advancing knowledge. We are not the only ones, of course, who are monitoring developments on the fair use front. In fact, tomorrow the House Judiciary Committee is holding a hearing on fair use in educational settings.

One case we’ve been following closely is the lawsuit between a group of academic publishers—Cambridge University Press, Oxford University Press, and Sage Publications—and officials of Georgia State University. The lawsuit arose because GSU policies have allowed professors to post excerpts from books for use by their students. This has included course websites where professors could upload such materials and an “E-Reserves” system run by the university library whereby professors could arrange for excerpts from works in the library’s collection to be posted online for student access.

Why Digital Humanities Researchers Support Google’s Fair Use Defense

Posted July 31, 2014

Guest-blogged by Authors Alliance member Matthew Sag, a professor at Loyola University Chicago School of Law. Authors Alliance supports Google’s fair use defense because it helps authors reach readers. Matthew provides another reason why this case is important to the advancement of knowledge and scholarship.

Earlier this month a group of more than 150 researchers, scholars and educators with an interest in the ‘Digital Humanities’ joined an amicus brief urging the Second Circuit Court of Appeals to side with Google in this dispute. Why would so many teachers and academics from fields ranging from Computer Science, English Literature, History, Law, to Linguistics care about this lawsuit? It’s not because they are worried about Google—Google surely has the resources to look after itself—but because they are concerned about the future of academic inquiry in a world of ‘big data’ and ubiquitous copyright.

For decades now, physicists, biologists and economists have used massive quantities of data to explore the world around them. With increases in computing power, advances in computational linguistics and natural language processing, and the mass digitization of texts, researchers in the humanities can apply these techniques to the study of history, literature, language and so much more.

Why the Authors Alliance Amicus Brief Supports Google’s Fair Use Defense

Posted July 10, 2014

By Authors Alliance co-founder Pamela Samuelson.

It was nearly a decade ago that the Authors Guild and three of its members brought a class action lawsuit against Google. It charged that Google’s digitization of in-copyright books from major research library collections for its Book Search project was copyright infringement. The plaintiffs have asked for an award of $3 billion in statutory damages against Google and an injunction to remove Book Search from the Internet.

What a tragedy it would be if the Authors Guild prevailed in this lawsuit—and not just for members of the public who have come to depend on Book Search to find information, but also for the overwhelming majority of authors who want their books to be discoverable through full-text searchable databases such as Book Search.

Google’s main defense has always been that this scanning was fair use because it helps users to find books containing information relevant to their queries without harming the market for the books. Indeed, by providing links to online stores from which the books can be purchased, Book Search is likely to enhance the marketability of books in this database.

Google won its fair use at a lower court last fall. The Authors Guild appeal is now pending before the Second Circuit Court of Appeals, which has long been the most influential court on copyright issues. Oral argument will likely occur in the fall. A decision on the merits should be rendered in the first half of 2015.

The Authors Alliance has today filed a brief in support of the lower court’s fair use ruling. The Alliance has an interest in this litigation because a substantial proportion of our members have books in the Book Search database. Several dozens of books written by Alliance Advisory Board members can, for instance, be found through Book Search. They includes nine by Harvard historian Robert Darnton, seven by Lawrence Lessig, five by Michigan economist Paul Courant, four by former Poet Laureate Robert Pinsky, three by former President of the Modern Language Association Sidonie Smith, and one by Nobel Laureate Harold Varmus. Because Authors Alliance members want their books to be found, the organization supports Google’s fair use defense in this case.

HathiTrust Wins Big Victory for Authors in Authors Guild Case

Posted June 10, 2014

By Authors Alliance co-founder Pamela Samuelson.

The Authors Guild may have suffered a major loss today when the Second Circuit Court of Appeals ruled against its copyright infringement lawsuit against HathiTrust. But the HathiTrust win is an important victory for authors who write to be read and want readers to know their works exist.

The Second Circuit ruled that digitizing books for the purpose of enabling researchers to find information contained in books in the HathiTrust digital library is a fair use. With the aid of HathiTrust’s technology, researchers can make a query, for example, to find out how many of the 10 million books in the HathiTrust corpus contain references to anaphylactic shock. HathiTrust does not display the contents of in-copyright books responsive to such a query, but it does inform the researcher of the page numbers of books in physical library collections that are responsive to the query.

To put the point more simply, the court ruled that it is not copyright infringement for libraries to digitize works for the purpose of helping researchers find pertinent books. Authors of research library books often spent years writing them with the goal of sharing the knowledge and insights they contain with interested researchers. That knowledge can now be found using HathiTrust instead of moldering away unread in the physical stacks of research libraries.