The Foxfire of Fair Use: The Google Books Litigation and the Future of Copyright Laws
Summary and Keywords
Copyright exceptions and limitations in the United States have experienced dynamic evolution in light of new technological developments. There has been significant legal debate in the courts and in the United States Congress about the scope of the defense of fair use. The copyright litigation over Google Books has been a landmark development in the modern history of copyright law. The victory by Google, Inc., over the Authors Guild in the decade-long copyright dispute is an important milestone for copyright law. The ruling of Leval J emphasizes that the defense of fair use in the United States plays a critical role in promoting transformative creativity, freedom of speech, and innovation. The Supreme Court of the United States was decisive in its rejection of the Authors Guild’s efforts to challenge the decision of Leval J. There has been significant debate in the United States Copyright Office and United States Congress over the development of “the Next Great Copyright Act.” Hearings have taken place within the United States Congressional system about the history, nature, and future of the defense of fair use under United States copyright law. There remains much debate about the internationalization of the defense of fair use, and the need for the trading partners of the United States to enjoy similar flexibilities with respect to copyright exceptions. There has been concern about the impact of mega-regional trade agreements—such as the Trans-Pacific Partnership—upon copyright exceptions, such as the defense of fair use.
Keywords: intellectual property, copyright law, copyright exceptions, fair use, freedom of speech, communication, Google Inc., Google Books, authors, publishers, libraries, search engines, digital economy
The hallowed copyright defense of fair use has been adapted and updated for the age of search engines and digital libraries in the groundbreaking Google Books copyright litigation.
In the 1841 case of Folsom v. Marsh, Justice Joseph Story laid down the foundation for the doctrine of fair use in United States copyright law.1 The judge was sensitive to the refined nature of the assessment undertaken in intellectual property law: “Patents and copyrights approach, nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of the law, where the distinctions are, or at least may be, very subtile and refined, and, sometimes, almost evanescent.” Story J stressed:
What constitutes a fair and bona fide abridgment, in the sense of the law, is one of the most difficult points, under particular circumstances, which can well arise for judicial discussion. It is clear, that a mere selection, or different arrangement of parts of the original work, so as to bring the work into a smaller compass, will not be held to be such an abridgment. There must be real, substantial condensation of the materials, and intellectual labor and judgment bestowed thereon; and not merely the facile use of the scissors; or extracts of the essential parts, constituting the chief value of the original work.2
His Honor emphasized: “There must be real, substantial condensation of the materials, and intellectual labor and judgment bestowed thereon; and not merely the facile use of the scissors; or extracts of the essential parts, constituting the chief value of the original work.” In addition to developing the defense of fair use in copyright law, Justice Story also established the defense of experimental use in patent law in the United States.3
The doctrine of fair use was codified in the United States copyright regime. Section 107 of the Copyright Act of 1976 (Cth) provides:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4)the effect of the use upon the potential market for or value of the copyrighted work.
Moreover the provision states: “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
In response to the overturning of his copyright judgment in respect of a biography of J. D. Salinger, Leval J was moved to write an article, in which he argued that the fair use provisions should protect transformative uses of copyright materials (Leval, 1990). In a reconsideration of the Salinger case in light of this doctrine, His Honor emphasized “the need for quotation as a tool of accurate historical method” (Leval, 1990).
The Supreme Court of the United States handed down its landmark decision on copyright law and the defense of fair use in the “Pretty Woman” case, Campbell v. Acuff-Rose Music.4 Inspired by the jurisprudence of Story J and Leval J, Souter J developed a doctrine of transformative use. His Honor stressed that “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Souter J observed: “Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” This ruling has opened the way for further developments in respect of the doctrine of fair use (Samuelson, 2015). An illustrated version of the decision has been published in Fair Use Week in 2016 (Courtney, Searle, & Roche, 2016).
Since that time, the doctrine of fair use has been applied in a dazzling array of factual situations and technological environments. As Pamela Samuelson has observed:
Fair use has been invoked as a defense to claims of copyright infringement in a wide array of cases over the past thirty years, as when someone has drawn expression from an earlier work in order to parody it, quoted from an earlier work in preparing a new work on the same subject, published a photograph as part of a news story, made a time-shift copy of television programming, photocopied a document for submission as evidence in a litigation, reverse engineered a computer program to get access to interface information, cached websites to facilitate faster access to them, or provided links to images available on the Internet, just to name a few.
(Samuelson, 2009, p. 2539)
Professor Samuelson has surveyed the literature on copyright law and fair use (Samuelson, 2009, pp. 2540–2541). She suggests: “The policies [which] underlie modern fair use law include promoting freedom of speech and of expression, the ongoing progress of authorship, learning, access to information, truth-telling or truth-seeking, competition, technological innovation, and privacy and autonomy interests of users” (Samuelson, 2009, pp. 2541–2542).
There has been a great academic and scholarly interest in the operation of the defense of fair use in practice in the United States. In his paper “The Googlization of Everything and the Future of Copyright,” Professor Siva Vaidhyanathan comments upon the paradox of the defense of fair use (Vaidhyanathan, 2007; see also Vaidhyanathan, 2011). His insight is that there is a gap between the law in the books, with the protection afforded by the defense of fair use, and the murky reality of access to justice and the law in action. Professor PatriciaAufderheide and Professor Jaszi (2011) have explored the operation of defense of fair use in various creative communities—including documentary film-makers, journalists, and visual artists. They have been particularly interested in the development of codes and guidelines in respect of the operation of the defense of fair use. McLeod and DiCola (2011) have considered copyright law, fair use, and musical sampling. McLeod and Kuenzli (2011) have also explored copyright law, appropriation art, and collage in an edited collection. Netanel (2008, 2011) has considered the paradox of copyright law, placing a burden on free speech. Tushnet (2013) has been concerned about copyright law, fair use, fan fiction, and hermeneutics. Urban (2012) has examined how the defense of fair use can address the orphan works problem. Patry (2009, 2011) has written about how copyright owners have sought to demonize the defense of fair use.
In addition, the defense of fair use has migrated into other adjoining fields of intellectual property. The codification of trademark dilution law in the United States features a defense of fair use (Rimmer, 2008). There are strong conceptual commonalities between the defense of fair use under copyright law and the defense of experimental use under patent law—not least because both doctrines were devised by Story J (Rimmer, 2005).
The conflicts over copyright law and the defense of fair use have larger implications for theoretical and empirical research in respect of communication studies. Professor Flew (2014) has highlighted how the defense of fair use is important for the future of copyright law as well as new technologies—such as social media, cloud computing, and digitization. Professor Bowrey (2016) has shown how copyright law and the defense of fair use are bound up with larger questions about innovation, competition, and cultural heritage. Doctorow (2014) has discussed the intersections between copyright law, culture, and technology. The case of Aaron Swartz has underscored the importance of copyright law, fair use, and open access (Peters, 2016). The work of MacKinnon (2013) has demonstrated how copyright law is connected to larger debates about free speech, digital rights, and Internet freedom.
In light of this academic work in respect of communication theory and practice, this article provides a critical analysis of the copyright exception of the defense of fair use in light of new technological developments. The key modern case study in respect of copyright law and fair use, the first part focuses upon the decade-long United States litigation between authors, publishers, and the search engine over Google Books. It considers, in particular, the ruling of Leval J on copyright law and the defense of fair use in respect of Google Books. Moreover, it highlights the refusal of the Supreme Court of the United States to appeal against that finding. The second part focuses upon the debate within the United States Congress over the operation of the defense of fair use in the context of United States jurisprudence. The conclusion examines the internationalization of the defense of fair use, and the need for the trading partners of the United States to enjoy similar flexibilities in respect of copyright exceptions.
The decade-long mega-litigation over Google Books has raised larger issues about copyright law, fair use, search engines, digitization, authorship, and publishing.5
In 2005, the Authors’ Guild brought a class action against Google, Inc., arguing that Google Books had infringed copyright in its literary works through its unauthorized scanning, copying, and digitization of books. The author-plaintiffs included Jim Bouton, author of Ball Four; Betty Miles, author of The Trouble with Thirteen; and Joseph Goulden, author of The Superlawyers: The Small and Powerful World of the Great Washington Law Firms.
In response, Google Inc. raised a number of defenses. The Internet search engine initially insisted that the plaintiffs’ claims and remedies would be barred by the First Amendment of the United States Constitution, which provides protection for the freedom of speech. Google Inc. maintained that Google Books was protected under copyright exceptions—including the defense of fair use, exemptions for libraries and archives, and other miscellaneous exceptions. Moreover, Google Inc. has questioned whether some or all of the plaintiffs’ works were copyrightable. Google was also concerned whether the plaintiffs’ claims complied with the formalities of renewal, notice, and registration. Google Inc. also raised equitable concerns about copyright misuse, unclean hands, waiver, estoppel, laches, and acquiescence.
There was significant discussion about a possible settlement resolving the parties’ claims on a case-wide basis. There was much academic commentary in respect of the proposed Google Book Settlement.6
In 2011, Chin J issued an opinion rejecting the proposed settlement on the grounds that it was not fair, adequate, and reasonable.7 In 2012, Chin J issued an opinion granting the individual plaintiffs’ motion for class certification.8 In 2013, the United States Court of Appeals for the Second Circuit vacated the class certification decision, concluding that “resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues.” The Second Circuit remanded the case for further consideration of fair use issues.9
In 2012, the Association of American Publishers and Google reached a settlement agreement in a related dispute over the Google Library Project.10
In the 2013 case of The Authors Guild, Inc. v. Google Inc., Chin J of the United States District Court for the Southern District of New York granted summary judgment to the search engine under the doctrine of fair use.11 Applying the multi-factorial test for the fair use doctrine, Chin J held:
In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.
The judge emphasized that Google Books helped meet the higher constitutional objective of promoting the Progress of Science and the Useful Arts.
Corynne McSherry of the Electronic Frontier Foundation said that the ruling was a “tremendous victory for fair use and the public interest” (McSherry, 2013). In her view, “Readers, authors, librarians and future fair users can rejoice.” McSherry (2013) predicted that it would be futile for the Authors Guild to continue the litigation: “Its membership might want to consider whether they really want to spend more of their dues on this misguided litigation.”
Reflecting upon the case, Professor James Grimmelmann reflected, “What seemed insanely ambitious and this huge effort that seemed very dangerous in 2004 now seems ordinary,” and he suggested, “Technology and media have moved on so much that it’s just not a big deal” (Miller & Bosman, 2013).
The Authors Guild (2013) was distraught at the ruling. Executive director Paul Aiken protested: “We disagree with and are disappointed by the court’s decision today.” He maintained: “This case presents a fundamental challenge to copyright that merits review by a higher court.” Aiken lamented: “Google made unauthorized digital editions of nearly all of the world's valuable copyright-protected literature and profits from displaying those works.” He maintained that the defense of fair use did not extend to mass digitization of literary works: “In our view, such mass digitization and exploitation far exceeds the bounds of fair use defense” (Authors Guild, 2013).
In the interim, another important decision was handed down in The Authors Guild, Inc. v. HathiTrust.12 In this matter, the Authors Guild brought a copyright action against a collaborative repository of digital content from research libraries and their members. Parker J held that the digitization of copyright works to permit full-text searching of works was protected by the defense of fair use. Moreover, the judge found that the digitization of copyrighted works to provide access to persons with disabilities was protected by the defense of fair use. The court remanded the question of storage of digital copies for preservation purposes back to the District Court. The claim that the project to digitize orphan works violated copyright law was not considered to be ripe. This precedent was immensely helpful and useful in the parallel litigation in respect of Google Books.
The United States Court of Appeals for the Second Circuit
In the 2015 case of The Authors Guild v. Google, Inc., the United States Court of Appeals for the Second Circuit considered the history of copyright law and the defense of fair use in the context of Google Books—the large-scale digitization project of Google Inc.13 Leval J wrote the leading judgment. Leval J is famous for having developed the theory of transformative use for the defense of fair use (Leval, 1990), which was later adopted by the Supreme Court of the United States.
In his expansive judgment, Leval J considers the underlying purpose of copyright law in the United States:
The ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their works, thus giving them a financial incentive to create informative, intellectually enriching works for public consumption. This objective is clearly reflected in the Constitution’s empowerment of Congress “To promote the Progress of Science … by securing for limited Times to Authors … the exclusive Right to their respective Writings.” U.S. Const., Art. I, § 8, cl. 8 (emphasis added). Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.14
The judge emphasizes that the role of copyright law is to promote the higher constitutional objective of the “Progress of Science and the Useful Arts.”
Leval J considers the history of copyright law and the doctrine of the defense of fair use in the United States:
For nearly three hundred years, since shortly after the birth of copyright in England in 1710, courts have recognized that, in certain circumstances, giving authors absolute control over all copying from their works would tend in some circumstances to limit, rather than expand, public knowledge. In the words of Lord Ellenborough, “[W]hile I shall think myself bound to secure every man in the enjoyment of his copyright, one must not put manacles upon science.” Cary v. Kearsley, 170 Eng. Rep. 679, 681, 4 Esp. 168, 170 (1802). Courts thus developed the doctrine, eventually named fair use, which permits unauthorized copying in some circumstances, so as to further “copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts.’” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (quoting U.S. Const., Art. I, § 8, cl. 8). Although well established in the common law development of copyright, fair use was not recognized in the terms of our statute until the adoption of § 107 in the Copyright Act of 1976. 17 U.S.C. §§ 101 et seq.
The judge emphasizes that the codification of the United States copyright defense of fair use took inspiration from the work of Story J: “The statute’s wording, derived from a brief observation of Justice Joseph Story in Folsom v. Marsh, does not furnish standards for recognition of fair use.”15
Highlighting the landmark ruling in Campbell v. Acuff-Rose, Leval J emphasized that “notwithstanding fair use’s long common-law history, not until the Campbell ruling in 1994 did courts undertake to explain the standards for finding fair use.” The judge observed:
The Campbell Court undertook a comprehensive analysis of fair use’s requirements, discussing every segment of § 107. Beginning with the examples of purposes set forth in the statute’s preamble, the Court made clear that they are “illustrative and not limitative” and “provide only general guidance about the sorts of copying that courts and Congress most commonly ha[ve] found to be fair uses.” 510 U.S. at 577–578, 114 S.Ct. 1164 (internal quotations and citations omitted). The statute “calls for case-by-case analysis” and “is not to be simplified with bright-line rules.” Id. at 577, 114 S.Ct. 1164. Section 107’s four factors are not to “be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” Id. at 578, 114 S.Ct. 1164. Each factor thus stands as part of a multifaceted assessment of the crucial question: how to define the boundary limit of the original author’s exclusive rights in order to best serve the overall objectives of the copyright law to expand public learning while protecting the incentives of authors to create for the public good.
Moreover, the judged noted that “In Campbell, the Court stressed also the importance of the first factor, the ‘purpose and character of the secondary use.’ 17 U.S.C. § 107(1).”16 Leval J observed: “The more the appropriator is using the copied material for new, transformative purposes, the more it serves copyright’s goal of enriching public knowledge and the less likely it is that the appropriation will serve as a substitute for the original or its plausible derivatives, shrinking the protected market opportunities of the copyrighted work.”
The first factor of fair use focuses upon the purpose and the character of the use. Considering the search and snippet functions of Google Books, Leval J reflected upon whether Google Books involved a transformative use. He highlighted the commentary of the Supreme Court of the United States:
While recognizing that a transformative use is “not absolutely necessary for a finding of fair use,” the opinion further explains that the “goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works” and that “[s]uch works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.” Id. at 579, 114 S.Ct. 1164. In other words, transformative uses tend to favor a fair use finding because a transformative use is one that communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge.
Leval J warned: “The word ‘transformative’ cannot be taken too literally as a sufficient key to understanding the elements of fair use.” His Honor stressed that the word transformative is a “a suggestive symbol for a complex thought, and does not mean that any and all changes made to an author’s original text will necessarily support a finding of fair use.”
Leval J emphasized that “the would-be fair user of another’s work must have justification for the taking.”17 In his view, “A secondary author is not necessarily at liberty to make wholesale takings of the original author’s expression merely because of how well the original author’s expression would convey the secondary author’s different message.” Leval J highlights the classic role of critical commentary: “Among the best recognized justifications for copying from another’s work is to provide comment on it or criticism of it.” His Honor stressed: “A taking from another author’s work for the purpose of making points that have no bearing on the original may well be fair use, but the taker would need to show a justification.” Leval J observed: “A further complication that can result from oversimplified reliance on whether the copying involves transformation is that the word ‘transform’ also plays a role in defining ‘derivative works,’ over which the original rights holder retains exclusive control.”
On the facts of Google Book Search, Leval J held: “We have no difficulty concluding that Google’s making of a digital copy of Plaintiffs’ books for the purpose of enabling a search for identification of books containing a term of interest to the searcher involves a highly transformative purpose, in the sense intended by Campbell.”18 The judge relied upon a string of precedents—including Authors Guild, Inc. v. HathiTrust, A.V. ex rel. Vanderhye v. iParadigms, LLC, Perfect 10, Inc. v. Amazon.com, Inc., and Kelly v. Arriba Soft Corp. Leval J emphasized:
As with HathiTrust (and iParadigms ), the purpose of Google’s copying of the original copyrighted books is to make available significant information about those books, permitting a searcher to identify those that contain a word or term of interest, as well as those that do not include reference to it. In addition, through the ngrams tool, Google allows readers to learn the frequency of usage of selected words in the aggregate corpus of published books in different historical periods. We have no doubt that the purpose of this copying is the sort of transformative purpose described in Campbell as strongly favoring satisfaction of the first factor.
The judge noted that there were important differences between the HathiTrust and Google Books—notably, in respect of the snippet view of Google Books, and the commercial nature of the Google enterprise. His Honor stressed: “Snippet view thus adds importantly to the highly transformative purpose of identifying books of interest to the searcher.”19 The judge observed: “[W]e see no reason in this case why Google’s overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose, together with the absence of significant substitutive competition, as reasons for granting fair use.”20
The second factor relates to the nature of the copyrighted work. Leval J observed: “Nothing in this case influences us one way or the other with respect to the second factor considered in isolation.”21 His Honor stressed: “To the extent that the ‘nature’ of the original copyrighted work necessarily combines with the ‘purpose and character’ of the secondary work to permit assessment of whether the secondary work uses the original in a ‘transformative’ manner, as the term is used in Campbell, the second factor favors fair use not because Plaintiffs’ works are factual, but because the secondary use transformatively provides valuable information about the original, rather than replicating protected expression in a manner that provides a meaningful substitute for the original.”
The third statutory factor requires a consideration of “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” Leval J recognized: “While Google makes an unauthorized digital copy of the entire book, it does not reveal that digital copy to the public.”22 His Honor commented: “The copy is made to enable the search functions to reveal limited, important information about the books.”23 Leval J said of the snippet search: “The fragmentary and scattered nature of the snippets revealed, even after a determined, assiduous, time-consuming search, results in a revelation that is not ‘substantial,’ even if it includes an aggregate 16% of the text of the book.”24
The fourth fair use factor looks at the “effect of the use upon the potential market for or value of the copyrighted work.” Leval J observed: “Because copyright is a commercial doctrine whose objective is to stimulate creativity among potential authors by enabling them to earn money from their creations, the fourth factor is of great importance in making a fair use assessment.”25 The judge commented:
Especially in view of the fact that the normal purchase price of a book is relatively low in relation to the cost of manpower needed to secure an arbitrary assortment of randomly scattered snippets, we conclude that the snippet function does not give searchers access to effectively competing substitutes. Snippet view, at best and after a large commitment of manpower, produces discontinuous, tiny fragments, amounting in the aggregate to no more than 16% of a book. This does not threaten the rights holders with any significant harm to the value of their copyrights or diminish their harvest of copyright revenue.
In summation, Leval J held: “Considering the four fair use factors in light of the goals of copyright, we conclude that Google’s making of a complete digital copy of Plaintiffs’ works for the purpose of providing the public with its search and snippet view functions (at least as snippet view is presently designed) is a fair use and does not infringe Plaintiffs’ copyrights in their books.”26
The judge then addressed some secondary issues in the case—like derivative rights in search and snippet view, the concerns of the plaintiffs about the risks of hacking of Google’s files, and Google’s distribution of digital copies to participant libraries.
In the wake of the ruling, Leval J delivered the Fourth Annual Peter Jaszi Distinguished Lecture on Intellectual Property (Butler, 2015; Leval, 2015). He reflected that fair use was “copyright’s supposedly elusive ‘Foxfire’,” suggesting that the doctrine was luminous and ever-changing (Leval, 2015). Leval J charted the history of copyright law and the doctrine of fair use—from its origins in the work of Justice Story, to the codification of the regime in 1976, to its transformation about the decision in Campbell v. Acuff-Rose.
The Supreme Court of the United States
In 2016, the Authors Guild appealed against the decision of Leval J on copyright law, fair use, and Google Books to the Supreme Court of the United States.27
The appellants complained that Leval J’s ruling “threatens to undermine protection of copyrighted works in the digital age to an extraordinary extent.” The appellants alleged: “Such a radical rewrite of copyright law should not be allowed to stand without this Court’s consideration.”
A number of briefs supported the Authors Guild’s call for an appeal to the Supreme Court of the United States. There was an amicus curiae brief by the American Society of Journalists and Authors, Inc., in support of the petitioners.28 The American Society of Journalists and Authors Inc. maintained that “The Second Circuit’s decision, if upheld, threatens to undo the balance set forth by Congress in the fair use section of the Copyright Act (the ‘Act’), 17 U.S.C. §107 (1992).” The Society objected: “The Act strikes a balance between copyright owners and users which the Second Circuit’s decision takes too far in the direction in favor of those who seek to use copyrighted materials without compensating creators.”
An amicus curiae brief supporting the petitioners was made on behalf of the prominent literary authors Malcolm Gladwell, J. M. Coetzee, Margaret Atwood, Ursula Le Guin, Stephen Sondheim, Peter Carey, Thomas Keneally, Tony Kushner, Diane McWhorter, Taylor Branch, Tracy Chevalier, Douglas Wright, Michael Frayn, Richard Flanagan, Tracy Kidder, Marsha Norman, and Yann Martel.29 The authors insisted that “Copyright protection was included in the Constitution to reward authors and provide incentives for them to continue writing.” The writers maintained: “The amici do not believe that the fair-use doctrine was ever intended—either by the judges who developed the doctrine at common law or the many Congresses that drafted and finally codified the fair-use doctrine—to permit a wealthy for-profit entity to digitize millions of works and to cut off authors’ licensing of their reproduction, distribution, and public display rights.” The authors “also believe that the manner in which this Court embraced ‘transformativeness’ has led courts to ignore their obligations, contrary to the direction of Congress and this Court, to consider and weigh all the fair-use factors, apply no bright lines, and consider the broad goals set out in the preface of section 107.”
The Copyright Alliance objected to the extension of the doctrine of transformative use to a wider array of context.30 The Copyright Alliance complained: “The Second Circuit’s troubling expansion of the law is further exacerbated by the fact that, in Google Books (and several other functional use cases), a finding that the defendant’s use is ‘transformative’ is essentially outcome determinative.” The Copyright Alliance argued: “It is far too easy for a defendant to claim that its secondary use serves a ‘new function’ or provides ‘useful information’ about a work or ‘expands its utility.’” The Copyright Alliance was concerned about the impact of the ruling upon copyright protection in respect of databases: “By logical extension, Google Books gives commercial companies carte blanche to reproduce entire corpuses of copyrighted works to create databases and profit off the backs of their original creators without paying a license fee, because end users may find them ‘useful’.” The Copyright Alliance maintained: “These issues cry out for Supreme Court review.”
The publishers Elsevier, Inc., and the Hachette Book Group also made a submission to the Supreme Court of the United States.31 The publishers argued that “the Second Circuit’s decision misconceives and misapplies the fair use doctrine so profoundly that the Court should grant the writ to consider on the merits the proper scope of fair use as applied to Google’s verbatim copying of over four million copyrighted books—almost certainly the largest concerted copyright infringement in United States history.” Elsevier Inc. and the Hachette Book Group maintained:
The harm to owners from the Second Circuit’s analysis stem largely from its expansive redefinition of “transformative use” to require not a new work, but only a new business idea. Because tech companies are always pursuing new ideas to use old content, the panel’s approach will inevitably result in fair use determinations, and divert revenues from creators to tech companies. The court of appeals also erred in attending not to the intentions of the defendant commercial copier, but instead to those of remote end-users, an approach that creates a broad loophole for infringing intermediaries in direct disregard of Congress’s express intentions.
The publishers alleged that the matter deserved legislative scrutiny, rather than judicial adjudication: “The move from work-specific fair use assessment to broad scale approval of a mass digitization project at some of the nation’s largest research libraries—on the theory that Google’s copying of four million books was fair regardless of the particular books involved—looks and feels more legislative than judicial, since it is not limited to particular works (or even particular kinds of works).”
The Copyright Clearance Center and fellow amici were concerned about the interpretation of market use in the fair use determination.32 The Center complained that “that this unduly narrow conception of market harm threatens to impair incentives to creative expression and warrants correction at this critical juncture in the development of digital commerce in general and of commercial databases of copyrighted material in particular.”
There was also a brief by various associations—including the Text and Academic Authors Association, the Western Writers of America, Inc., the National Association of Science Writers, Inc., and the Dramatists Guild—in support of the petitioners.33
There was also a submission from the International Authors Forum (IAF), International Publishers Association (IPA), and International Association of Scientific, Technical and Medical Publishers (STM) in support of Petitioners.34
Google Inc.defended the position of Leval J, observing: “As Judge Leval’s opinion demonstrates persuasively, Google Books is entirely consistent with the purposes of copyright law and in fact advances the interests of authors.”35 The search engine noted:
Contrary to petitioners’ caricature of the decision below, Judge Leval carefully and separately weighed each factor in the fair use analysis and assessed Google Books “in light of the purposes of copyright,” as articulated by this Court’s decisions, Pet. App. 17a (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994)). Petitioners’ attempt to manufacture a circuit split with respect to the first fair-use factor is without merit; no court of appeals has required “creative” expression (Pet. 19) distinct from the dramatically new kind of information provided to users of Google Books. To the contrary, the decision below follows the approach of other circuits that found similar uses to be fair use.
As such, the Silicon Valley was of the view that there was no need for the Supreme Court of the United States to disturb the decision of Leval J.
In response, Professor Samuelson (2016) has argued that the Authors Alliance has taken a broader view of the defense of fair use than the Authors Guild. She observed: “If the Supreme Court decides to review the Google decision, the Authors Alliance will file a brief to explain why Google’s different purpose use is much fairer to authors than the Guild has so far been willing to admit.”
The decision of Leval J was favorably received in a number of quarters. Krista Cox of the Association of Research Libraries emphasized that “the Second Circuit’s decision in the Google Books case is a strong affirmation of fair use and demonstrates the importance of the fair use doctrine in responding to new technological developments” (Cox, 2015). She emphasized: “The search and snippet function of Google Books allows for important research, including through text-and-data mining to allow researchers to conduct research that would not be possible without the large searchable database created by Google.” Cox was also pleased about the implications of the decision for libraries: “Additionally, Google’s digitization of certain works from library collections demonstrates an important partnership, which has allowed libraries to make fair uses of these copies, including to provide access for those who are visually impaired.”
Mike Masnick of TechDirt noted that there was no dissent from the ruling of Leval J: “This was a unanimous decision by all three judges on the panel, giving yet another complete victory to Google saying that its book scanning project is fair use—and, as an appeals court ruling, is useful in creating precedent in the all important 2nd Circuit” (Masnick, 2015a).
Corynne McSherry of the Electronic Frontier Foundation said it was a “good day for fair use.” She wondered whether the members of the Authors Guild should “consider whether it's time to finally cut their losses” (McSherry, 2015a).
Raza Panjwani, a lawyer at Public Knowledge, maintained: “The circuit court’s decision is a victory for the public” (Stella, 2015). He commented: “Researchers can now spend seconds, not lifetimes, searching through libraries across the world to identify relevant books.” Panjwani observed that the decision upheld the higher purposes of copyright law of promoting the progress of science and the useful arts: “If copyright law is truly intended ‘to promote the progress of science and the useful arts,’ then this is precisely the kind of access-enhancing use it should permit.” He also observed: “The opinion also puts to rest two pervasive misconceptions about copyright law: that digitizing or copying an entire work is always a violation of the law regardless of purpose, and that the mere existence of a licensing market eliminates the possibility of a fair use.” The lawyer lamented: “The tragedy is that ten years and countless dollars have been spent on lawsuits, instead of on expanding or establishing new programs like Google Books.” He was hopeful that the ruling would lead to a renewed effort to engage in digitization at libraries, archives, galleries, and cultural institutions: “With this decision, we will hopefully see a renewal of efforts to digitize and open up access to culture and knowledge.”
Meyer (2015) observed that the case involved a “muscular” reading of the defense of fair use.
There remain larger issues in respect of reforming copyright law for libraries, archives, galleries, museums, and other cultural institutions. In his book, BiblioTech: Why Libraries Matter More Than Ever in the Age of Google, John Palfrey reflects that “the law of copyright has become a hindrance when it comes to building strong libraries in a digital era” (Palfrey, 2015). He observes that “librarians have been at the forefront of efforts to update the law to support their good works into the future.” Palfrey concludes, “Without changes to current law and policy, librarians will have a terribly hard time accomplishing their public-spirited mission in support of people living in a democracy.”
In April 2016, the Supreme Court of the United States declined to hear the appeal by the Authors’ Guild.36 Lyle Denniston noted for ScotusBlog: “The Supreme Court’s denial of review of the copyright implications of the project was, as usual with such denials, unexplained” (Denniston, 2016). Apparently, Justice Kagan took part in the consideration of the matter.
In response, the Authors Guild’s president, the novelist Roxana Robinson, bitterly said in the statement: “The denial of review is further proof that we’re witnessing a vast redistribution of wealth from the creative sector to the tech sector, not only with books, but across the spectrum of the arts” (Liptak & Alter, 2016). Given the history of the Google Books litigation, the judiciary seems to be of the firm view that Google Books does not indeed involve a “vast redistribution of wealth from the creative sector to the tech sector.” For its part, Google observed: “We are grateful that the court has agreed to uphold the decision of the Second Circuit which concluded that Google Books is transformative and consistent with copyright law” (Liptak & Alter, 2016).
Given the spectrum of views about copyright law, fair use, and digitization, no doubt the issue will be played out not only in the courts, but also in the United States Congress.
The United States Congress
In 2013, Maria Pallante—then the Register of Copyrights of the United States and Director of the United States Office—foreshadowed the development of “The Next Great Copyright Act” (Pallante, 2013). She observed that there were a host of issues that needed reconsideration—including the scope of exclusive rights, exceptions and limitations, enforcement tools, licensing schemes, and registration. As one of the key issues of copyright law reform, Pallante highlighted the area of copyright exceptions:
Constructing the next great copyright act will require many discussions about the place given to exceptions and limitations. These include: updating baseline standards for libraries and archives, crafting a digital age Chafee Amendment (for print disabilities), addressing the ecosystem of higher education institutions and markets, and possibly considering clarity in personal use activities. While fair use can also be helpful to users of copyrighted works in appropriately tailored circumstances, it requires an intensive application of the facts at hand and is therefore ill-suited as a vehicle for bright line rules or more systematic activities of users. Nonetheless, exceptions and the fair use provisions should be viewed as complements within the law.
(Pallante, 2013, p. 322)
Summing up, Pallante (p. 344) stressed: “In a framework as dynamic as copyright, it is not unreasonable and is probably prudent for Members of Congress to legislate carefully in response to technological innovation rather than in real time.” She stated: “Congress needs to see the evolution of technology and related businesses with some objectivity and to consider, as appropriate, the rulings and the frustrations of the courts before it can move forward.” Pallante observed: “When it is ready to move, however, Congress should do so with both great deference to the principles of the past and great vision for the future.”
In response to this call, on April 24, 2013, Chairman Bob Goodlatte of the United States House of Representatives Judiciary Committee called for a comprehensive series of hearings upon United States copyright law. He commented:
There is little doubt that our copyright system faces new challenges today. The Internet has enabled copyright owners to make available their works to consumers around the world, but has also enabled others to do so without any compensation for copyright owners. Efforts to digitize our history so that all have access to it face questions about copyright ownership by those who are hard, if not impossible, to locate. There are concerns about statutory license and damage mechanisms. Federal judges are forced to make decisions using laws that are difficult to apply today. Even the Copyright Office itself faces challenges in meeting the growing needs of its customers – the American public. So it is my belief that a wide review of our nation’s copyright laws and related enforcement mechanisms is timely.
(United States House of Representatives, Judiciary Committee, 2013)
The Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet has held a series of hearings on copyright law. In 2013, there were hearings on such topics as copyright principles, copyright law and innovation, the rise of voluntary agreements, and content delivery methods in the Digital Age. In 2014, there were a host of hearings on copyright law in the United States Congress. There was a discussion of the scope of copyright protection, the defense of fair use, copyright remedies, takedown notices, fair use, compulsory licensing, cultural preservation, moral rights, resale royalty, and disability rights. In 2015, the United States Congress explored the role of the United States Copyright Office and the Register’s Perspective on Copyright Review.
In January 2014, the United States Congress held a hearing about copyright law and the scope of the defense of fair use (Rimmer, 2014; United States House of Representatives, Judiciary Committee, 2014). The House of Representatives Judiciary Committee—through its Subcommittee on the Courts, Intellectual Property, and the Internet—heard a number of pieces of evidence and testimony. Mike Masnick provided an astute summary of the issues raised in the hearing on Techdirt (Masnick, 2014c). Brandon Butler (2014) said that the hearing put “transformativeness on trial.” There was significant evidence provided by Professor Peter Jaszi, Naomi Novik, and others. The hearing was followed up by further hearings and discussions by the United States Congress about the regulation of copyright law (Masnick, 2015b).
Reclaiming Fair Use
Professor Peter Jaszi is a leading public scholar and intellectual on matters of copyright law. He was instrumental in co-editing landmark collections of copyright law and authorship, such as The Construction of Authorship (Woodmansee & Jaszi, 1994) and Making and Unmaking Intellectual Property (Biagioli, Jaszi, & Woodmansee, 2011). Jaszi was quick to argue against the introduction of a copyright term extension in the United States. In works like Reclaiming Fair Use (Aufderheide & Jaszi, 2011), he has written extensively about the operation of the copyright defense of fair use.
In his written evidence to the Congress, Jaszi emphasized four themes about the defense of fair use (Jaszi, 2014). First, he observed that a “citizen’s ability to make some socially and economically positive uses of copyrighted material without permission is a right, and now widely recognized as such—including acknowledgments by both the Congress and the Supreme Court, which has stressed the connection between fair use and the freedom of expression secured by the First Amendment.”
Second, Jaszi commented that “fair use is working.” He emphasized: “Everyone who makes culture or participates in the innovation economy relies on fair use routinely—whether they recognize it or not.” He commented: “What’s notable about the current situation is that more and more business and practice communities are actively acknowledging the ways in which their contributions to our collective cultural and economic life depend on the ability to exercise the right of fair use in appropriate circumstances.”
Jaszi has been involved with Patricia Aufderheide and a range of collaborators in a series of projects developing codes of best practices for various artistic communities (Center for Media and Social Impact. Such work on fair use has looked at a diverse array of fields—including journalism (Jaszi & Aufderheide, 2013); online video (Jaszi & Aufderheide, 2008); media studies publishing (Society for Cinema and Media Studies; teaching for film and media educators (Society for Cinema and Media Studies, 2008); fair use of images for teaching, research, and study (Visual Resources Association, 2016); scholarly research in communication (International Communication Association, 2010); orphan works (Aufderheide, Hansen, Jacob, Jaszi, & Urban, 2014); poetry (Aufderheide, Coles, Jaszi, & Urban, 2011); and dance-related work (Jaszi, 2009). In this context, social codes of best practice may help provide greater clarity in respect of the contextual operation of copyright law.
Third, Jaszi stressed that the defense of fair use is patterned, reliable, and predictable. He scoffed at the complaints of critics that the defense was vague, uncertain, and unpredictable: “The current state of the law is proving those critics wrong” (Jaszi, 2014).
Finally, Jaszi maintained that there was no pressing need to revise or reform the defense of fair use in the United States. He observed that “the last decade has seen a proliferation of decisions applying this flexible, purpose-based doctrine to uses in the digital domain, from the development of interoperable software products and Internet search technology, to the practice of remix culture, though mass digitization in the promotion of access to knowledge” (Jaszi, 2014). Jaszi (2014) stressed: “In effect, in only a few short decades, the courts have developed a robust ‘unified field theory’ of fair use which is fully capable of meeting the digital challenge and should be allowed to do so.”
In conclusion, Jaszi (2014) held that “the fair use doctrine adds materially to our cultural choices, our learning opportunities, and our access to innovation.” He commented: “We can only wonder (with some bemusement) why some of our most important foreign competitors, like the European Union, haven’t figured out that fair use is, to a great extent, the ‘secret sauce’ of U.S. cultural competitiveness.”
Countries like Australia are at a competitive disadvantage, because their defense of fair dealing is much more limited and restricted than the United States doctrine of fair use (Australian law Reform Commission, 2014).
In his testimony, Jaszi (2014) deftly responded to questions from members of the United States Congress. Congressman Thomas Marino asked whether fair use encouraged piracy. This conflation of fair use and piracy is misleading and meretricious. The copyright industries have increasingly sought to slander fair use, by demonizing the defense, and scapegoating the doctrine for industry concerns about copyright infringement. Jaszi commented that Internet piracy is not fair use because it would not meet the four factors under fair use and does not constitute transformative use.
Higgins and Stoltz (2014) noted: “One area that got significant attention was the topic of mass digitization, which has been repeatedly determined by courts to be a fair and transformative use.” They emphasized that “Mass digitization is absolutely the sort of thing fair use is supposed to enable,” and observed, “Fair use is a flexible doctrine, not a rigid list of exceptions, so that it can accommodate changes in practices or technology.”
Jaszi (2014) defended the legitimacy of fair use precedents relating to Google Books and HathiTrust. He maintained that such decisions were success stories, rather than problems. Jaszi made the strong point that the decisions promoted the fundamental principles of copyright law—the progress of science and the useful arts, access to knowledge and education. The HathiTrust decision is particularly socially useful because it addresses the pernicious problem of disability discrimination.
Moreover, Jaszi also discussed the fair use ruling involving the financial information company Bloomberg. In the case of Swatch v. Bloomberg,37 the Court of Appeals for the Second Circuit held that Bloomberg’s recording and distribution of an earnings call by Swatch was protected by the defense of fair use. The court commented:
In the context of news reporting and analogous activities, moreover, the need to convey information to the public accurately may in some instances make it desirable and consonant with copyright law for a defendant to faithfully reproduce an original work rather than transform it. In such cases, courts often find transformation by emphasizing the altered purpose or context of the work, as evidenced by surrounding commentary or criticism.
Masnick (2014b) commented upon the ruling that, “All in all, a nice clear win for fair use even when the full work is used for commercial reasons.”
Masnick (2014a) makes the strong point that “fair use is the public's right” and not only provides protection for “free speech” but enables “great and powerful innovation as well.” The emergence of new technologies like3D printing and cloud computing will pose new challenges for copyright law, the flexibility of the defense of fair use, and the doctrine of transformative use.
Remix Culture, Fan Fiction, and Transformative Works
At theJudiciary Subcommittee hearing, Naomi Novik provided an eloquent submission and presentation to the United States Congress on copyright law, fair use, and remix culture (Novik, 2014).
One of the founding members of the Organization of Transformative Works,38 Novik is an American writer who is best known for her Temeraire series, an alternative fantasy history of the Napoleonic Wars featuring dragons.39
Novik’s submission was timely, given the recent copyright litigation over remix culture.There has been much copyright litigation over literary mash-ups such as The Wind Done Gone and 60 Years Later,40 appropriation art by Shepard Fairey and Richard Prince (Adler, 2016),41 digital sampling and musical quotations, and television advertisements like GoldieBlox’s parody of the Beastie Boys, as well as Monster Energy’s video, using the group’s music.42
Novik (2014) discussed the role of the defense of fair use with respect to remix culture, fan fiction, and mash-ups. She noted: “I am not a lawyer, but as one of the creators and artists whose work is deeply affected by copyright law, I hope to explain how vital fair use is to preserving our freedom and enabling us to create new and more innovative work.” She maintained: “I urge Congress to not only preserve but strengthen fair use, to encourage still more innovation and creative work by more new artists.” She asked, “in particular that Congress consider improving protections for fair users, especially individual artists, who are threatened with lawsuits or DMCA takedowns.”
Nostalgically, Novik recalled her early experiences experimenting with fan fiction in an online remix community:
In 1994, while I was still in college, I first came across the online remix community. Over the next decade, before I wrote one word of my first novel, I wrote fan fiction, built online computer games, wrote open source archiving software, and created remix videos. I met hundreds of other artists creating their own work, and found an enthusiastic audience who gave feedback and advice and help. I had no money for licenses or lawyers. Neither did my fellow artists. No one would have sold us one anyway. We weren't trying to make money off our work. We were gathering around a campfire to sing and tell stories with our friends. The campfire was just a bigger one, and instead of telling new stories about Robin Hood, we told new stories about Captain Picard, because that was who we saw on television every week. Fair use gave us the right to do that.
Novik emphasized: “Our work was transformative in every sense of the word.” She stressed: “We weren’t simply retelling the old stories—we were creating new stories, and ones that weren’t being told.” Novik commented: “We transformed the original work, and we transformed ourselves by doing so.” She discussed how the creative community facilitated creativity: “We learned to think of ourselves as writers, artists, programmers, as creators.” She observed: “We took our craft seriously and so did our audience, and that audience was invaluable” (Novik, 2014).
Novik reflected that the history of art, literature, and drama has been one of borrowing:
Vincent van Gogh deliberately copied Japanese woodcuts so that he could find his own style. Shakespeare borrowed heavily from earlier sources. No one could deny that he transformed them. But imagine if the laws of his time had barred him from doing so. We wouldn’t have Hamlet, we wouldn’t have King Lear, we wouldn’t have Romeo and Juliet. And if Leonard Bernstein hadn’t borrowed from Romeo and Juliet, we wouldn’t have West Side Story. Now if we prevent the next generation from borrowing from West Side Story, we cap the flow of creativity, we dam the river of innovation.
Novik indicated that “Original work, work that stands alone, doesn’t just pop up out of nowhere.” She stressed that “It is at the end of a natural spectrum of transformation,” and she emphasized that “Fair use protects this spectrum, this incubator if you will.” She noted: “It's a space where artists can play with ideas and develop our skills, and share our work within a community and learn” (Novik, 2014).
Novik was skeptical about copyright owners’ arguments for the utility of copyright licensing as a solution instead of fair use. She noted: “Licensing is not a realistic option for most artists and communities who rely on fair use.” Novik observed: “On the purely practical level, the vast majority of remix artists doing non-commercial work simply don't have any of the resources to get a license—not money, not time, not access.” She stressed: “And speaking as a copyright holder, licensing is not a realistic option for most of us on the other side of the problem either.” Novik commented: “I very much don't want the difficulty and legal risk and expense involved in coming up with a license and issuing one to everyone who would like to write their own story about becoming a dragon captain in the Temeraire universe.” She emphasized: “And more importantly, licensing still doesn’t work even if the practical considerations are removed, because licensing invariably stifles transformative work” (Novik, 2014).
Novik was concerned about the impact of copyright lawsuits on remix artists. She pleaded:
I would ask Congress to make it easier for developing artists, who are often at a significant disadvantage currently, to exercise their fair use right. I have never received a cease and desist letter. But some of my fellow remix artists have, despite the fact that their work was completely noncommercial and highly transformative. It drove several of them completely out of the community and caused them to stop sharing their work, or it stopped them creating it at all. Virtually every remix video artist I know (including myself) has had their videos taken down from multiple platforms by automated systems that look for even minute fragments of copyrighted work. In order to restore them, if that's even possible, they have had to file counter complaints in the face of terrifying automated warnings telling them that they could be fined enormous amounts of money, and making them feel like criminals.
She lamented the destruction of remix culture: “I have gone hunting for stories and art and videos that were so good they stuck in my mind even years later, only to find out that they had been yanked down and were effectively destroyed” (Novik, 2014). In this context, there is a need for Fair Use Projects to ensure that creative artists have legal support, so that they can exercise their fair use rights (Rimmer, 2010).
In conclusion, Novik emphasized the importance of the defense of fair use to remix culture, amateur production, and fan fiction:
Our country is the world leader in innovation because here we ask those what if questions, and we are free to imagine what the answers look like. We're encouraged to look around us at the things that exist and imagine how we could make them better, how we could take them to the next level, how we could transform them. That is the spirit behind fair use. Fair use invites us to tinker and transform, and it frees us to explore ideas and share them with one another. It gives new artists and creators more tools to play with early in their careers and facilitates the evolution of genres and new forms. Any narrowing of fair use is inimical to this spirit.
Novik’s eloquent submission was an important reminder that the defense of fair use plays a critical role in encouraging artistic expression, creative freedom, and cultural sharing.
Professor Rebecca Tushnet—who has been closely involved with the Organization of Transformative Works—has called for greater judicial humility in cultural interpretation of fair use matters:
The current version of transformativeness tends to involve a fair amount of courts knowing it when they see it. But as Catharine MacKinnon says, they may not know what I know when I see what I see. Only deliberate attention to the multiple ways in which audiences react both to plaintiffs’ works and to defendants’ work can allow fair use to promote a truly robust creative environment in which multiple interpretations flourish.
Her argument is that there needs to be greater judicial sensitivity toward the intertextual nature and polyphonic voices of cultural texts.
Kurt Wimmer, the General Counsel of the Newspaper Association of America, also made a submission to the panel on the scope of the defense of fair use under copyright law (Wimmer, 2014). He emphasized: “The newspaper industry believes that the current formulation of fair use in the Copyright Act need not and should not be changed by Congress as part of any effort to update the Act.” In his view, “Court decisions interpreting fair use have not always been perfect, but overall we have faith that the long arc of the common law will, over time, result in workable fair use decisions for all members of the digital ecosystem and for the public we serve.”
Wimmer maintained that copyright law played an important role in supporting professional journalism:
Effective copyright protection is essential to funding the professional newsgathering and reporting that permits the newspaper industry to continue to serve the American public. When other digital players build their platforms and generate significant profits using newspaper content that they do not pay to produce or support, it undermines the ability of journalists to undertake high-quality reporting and contribute to a well-informed citizenry.
He contended: “Legal solutions, such as copyright infringement actions, may be required in certain cases where companies are appropriating and monetizing copyrighted or otherwise proprietary content, thus free-riding on newspapers’ journalistic efforts without supporting those efforts with appropriate funding.”
Nonetheless, Wimmer recognized the importance of the defense of fair use. He observed: “The common law approach also ensures fair use’s continued viability as a safety valve to relieve the tensions inherent in both protecting the copyrights of some and the First Amendment rights of others.” He emphasized that fair use played an important role in protecting freedom of speech: “Absent fair use, there exists a potential conflict between copyrights—which grant to authors an exclusive right to the reproduction, distribution, public performance, public display, and preparation of derivative works of their creations—and First Amendment rights—which grant to each individual a right to expression free from government interference.” He commented: “The judicial system is the appropriate forum for resolving, developing and balancing these important principles, particularly given the continuously increasing and novel means for expression” (Wimmer, 2014).
Wimmer’s presentation highlighted the tensions between copyright law and fair use, old media and new media, and the control and dissemination of copyright works.
In 2016, the New York Times settled a legal dispute with a publisher over the use of photographs in a book that argued that the paper glamorized war (Roberts, 2016). The newspaper’s claim of copyright infringement seemed shaky. The matter seemed to have involved a clear-cut case of fair use of copyright works.
Singer-songwriter David Lowery also made a presentation to the United States Congress (Lowery, 2014). He lamented: “Advocates for further expansion of fair use often appeal to the noncommercial nature of many remixes and lyrics annotations sites as a reason to place these activities under the fair use umbrella.” In his view, “This argument fails to consider that commercial intermediaries distribute these works and profit from their widespread dissemination.” Lowery much preferred an approach based upon permission, control, and licensing.
Professor June Besek from Columbia University also provided testimony to the United States Congress (Besek, 2014). She was also particularly alarmed by the rulings in favor of Google Books:
In Authors Guild v. Google, the court never considered the consequences “if the use should become widespread.” Perhaps the court implicitly assumed that no one but a Google could (or might want to) create such a comprehensive and expensive database. But it could well be that smaller, more narrowly tailored databases (e.g., financial economics or travel guides) would be of value to specific entities or individuals for a variety of purposes. The cost of book-scanning is far less now than it was when Google began its digitization project, so the prospect of a “democratization” of mass digitization is hardly far-fetched, and may already be well in prospect. Or, another internet service provider may seek a database to enhance its searches and bring in more advertising revenue, just as Google has done. The court simply never addressed the possible adverse effects on plaintiffs of a multiplicity of such databases.
(Besek, 2014, p. 9)
She feared that the doctrine of fair use had expanded too far: “The ascendency of transformative use, and in particular, ‘functional transformation,’ gives rise to concern that the fair use pendulum has now swung too far away from its roots and purpose, now enabling new business models rather than new works of authorship, and potentially placing the U.S. in violation of international restrictions on the scope of copyright exceptions and limitations” (Besek, 2014, p. 7). The academic urged for the intervention of the United States Congress into the public policy debate over the scope of the doctrine of fair use.
Edward Black from the Computer and Communications Industry Association lamented that technology developers were not well represented in the debate over copyright law and the defense of fair use in the United States Congress (Black, 2014). He maintained that the defense of fair use was particularly important in facilitating a range of emerging technologies:
The same fair use principle that saved home video has also served MP3 players, DVRs, smartphones and a considerable portion of modern Internet functionality, like cloud computing, that we depend upon today. In recent years, we've seen courts invoke fair use to validate a variety of transformative, socially valuable services, including online search engines, including image and book search; commercial-skipping and time-shifting with DVRs; and a service that compares students’ papers against a database for plagiarism (who, understandably, might not want to authorize use of their papers to prevent cheating).
Black concluded: “Not only does fair use serve extensive societal interests, it has been a commercial boon to the U.S. economy—something policymakers should be interested in protecting.” His position has been reinforced by the final result of the Google Books litigation.
The Congressional hearing has not necessarily resulted in any legislative responses as yet. There seems to be a rolling, dialogical process of consultations taking place in Congress. Waiting for the Next Great Copyright Act may resemble Samuel Beckett’s masterpiece, Waiting for Godot. Much will depend whether the new President, Donald Trump, will be able to work with the Republican-dominated Congress on copyright law reform.
The Supreme Court of the United States’ refusal grant to leave to the Authors Guild to challenge the Google Books litigation brings to a close an important period of copyright history (Liptak & Alter, 2016). The eloquent decision of Leval J will be an important precedent for copyright law, fair use, and emerging technologies. The ruling will ensure that the defense of fair use will promote consumer rights, innovation, and competition. Doctorow (2015) called the ruling a “titanic victory for fair use.” He recognized that there were important complexities to the dispute:
Google Books is hardly an unalloyed good. Moving books into the realm of electronic search subjects readers to an unprecedented level of surveillance over their reading-habits, and having the corpus of all literature in the hands of one company is terrible news for our cultural future (having it all in the hands of five giant publishers or one giant bookseller isn't much better, mind). But the Authors Guild had pursued a foolish adventure that, in the settlement proposal, would have made Google the permanent gatekeeper to literature, and in the lawsuit, could have killed the idea of search engines altogether.
The ruling was a relief not only for Google Inc., but also cultural institutions, such as libraries, galleries, museums, and archives. Nancy Sims, a University of Minnesota copyright librarian, wrote: “This is a pretty great outcome for libraries and the public” (Lever, 2016). David Kravets was hopeful that the decision would inspire further digitization projects: “In the long run, the ruling could inspire other large-scale digitization projects” (Kravets, 2016). No doubt there will be future copyright conflicts over new technologies and platforms. As Danny Lewis noted in the Smithsonian Magazine: “While this case may be closed, it won't be the last time that advocates for fair use and artists seeking compensation butt heads” (Lewis, 2016). Corynne McSherry, legal director of the Electronic Frontier Foundation, concluded that the Supreme Court of the United States decision would “leave intact a fair use doctrine that is robust and flexible enough to counterbalance the copyright creep that would stifle new innovation and creativity” (McSherry, 2016).
In the United States, there has been much debate about the scope of the fair use doctrine under copyright law—both in the courts, and in the United States Congress. At Harvard Library, librarian Kyle Courtney commented: “Fair use is critical and important to innovation, scholarship and research in the United States” (Courtney, 2015). Kenneth Crews emphasized that “the new technological ventures, like other creative pursuits, require fair use and other copyright limitations for experimentation and success” (Crews, 2015). Corynne McSherry, legal director of the Electronic Frontier Foundation, (2015b) has highlighted the significance and the importance of the defense of fair use: “Fair use provides breathing space in copyright law, making sure that control of the right to copy and distribute doesn’t become control of the right to create and innovate.” Masnick (2015c) has emphasized that fair use is a right—and not an exception or a mere defense. Molly Van Houweling of the Authors Alliance has written about the ecstasy of influence—the role of inspiration and appropriation in all acts of artistic creation. Fair use has been celebrated as a many-splendored legal creation (Van Houweling, 2015).
Fair Use Week has celebrated the evolution and development of the defense of fair use under copyright law in the United States. As Krista Cox noted, “As a flexible doctrine, fair use can adapt to evolving technologies and new situations that may arise, and its long history demonstrates its importance in promoting access to information, future innovation, and creativity” (Cox, 2014). While the defense of fair use has flourished in the United States, the adoption of the defense of fair use in other jurisdictions has often been stymied. Jaszi (2014) reflected: “We can only wonder (with some bemusement) why some of our most important foreign competitors, like the European Union, haven’t figured out that fair use is, to a great extent, the ‘secret sauce’ of U.S. cultural competitiveness.” Jurisdictions like Australia have been at a dismal disadvantage, because they only have a defense of fair dealing, and they lack the freedoms and flexibilities of the defense of fair use (Australian Law Reform Commission, 2014).
For Fair Use Week in 2016, Crews discussed the place of fair use in the world. He observed that the regime was increasingly attractive to other jurisdictions:
The benefits of fair use have become increasingly vivid in an era of new technologies, diverse copyrighted works, unpredictable uses, and sometimes unstoppable pressure to experiment and explore. As a result, this distinctly American doctrine has been invited into the law of a growing list of countries. It has proven desirable, practical, and even necessary to get good things done.
In reality, fair use has a close foreign cousin, the doctrine of ‘fair dealing,’ ’long part of copyright law in the United Kingdom and in many former British colonies. Fair dealing has the virtues of flexibility, but it is often statutorily confined to specific applications such as research and education, so fair dealing would not likely sanction appropriation art or reverse engineering of software. Moreover, while the factors in the fair dealing statutes may be similar to the fair use factors, courts have not given them the robust interpretations we find under fair use. The more fluid application and scope—the ‘open norms’ of fair use—continue their allure.
He commented that fair use was also a useful norm in light of international trade and commerce: “The international nature of commerce and communication means that courts in one country often need to apply foreign law to decide cases, where events occur in multiple countries.” Crews observed that “on a daily basis, fair use supports education, fosters business ingenuity, and opens technological enterprise” (Crews, 2016).
The Pacific Rim agreement—the Trans-Pacific Partnership43—would have had a significant impact upon intellectual property rules and obligations across the Pacific Rim. There were concerns about the defense of fair use and copyright exceptions being confined by the operation of mega-regional trade agreements. Article 18.65 dealt with copyright limitations and exceptions. Article 18.65 (1) of the Trans-Pacific Partnership provided: “With respect to this Section, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.” Article 18.65 (2) stipulated: “This Article does not reduce or extend the scope of applicability of the limitations and exceptions permitted by the TRIPS Agreement, the Berne Convention, the WCT or the WPPT.” Article 18.66 discussed rather vaguely “Balance in Copyright and Related Rights Systems”:
Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 18.65 (Limitations and Exceptions), including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled.
Surprisingly, the Internet Alliance has supported the passage of the Trans-Pacific Partnership (Internet Association, 2016). In spite of the Google Books litigation, Google has provided an endorsement of the Pacific Rim trade agreement (Walker, 2016). Kent Walker of Google said: “We hope that the TPP can be a positive force and an important counterweight to restrictive Internet policies around the world.” There has been much disquiet, though, about Google’s support for the mega-regional agreement (Masnick, 2016). The Electronic Frontier Foundation has been concerned about the impact of the Trans-Pacific Partnership upon the nature and scope of copyright exceptions (Sutton, 2016). It remains problematic that many members of the Pacific Rim trade agreement do not enjoy a broad, flexible defense of fair use like the United States. The surprise victory of Donald Trump as President of the United States seems to have resulted in the collapse of the Trans-Pacific Partnership.
Nonetheless, it can be expected that there will be fierce debate over the nature and scope of copyright exceptions in future trade agreements in the Pacific Rim.
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(1.) Folsom v. Marsh 9 F.Cas. 342 at 344 (1841).
(2.) Folsom v. Marsh 9 F.Cas. 342 at 345 (1841).
(3.) Whittemorev. Cutter 29 F. Cas. 1120 (1813); Sawinv. Guild 21 Fed. Cas 554 (1813); Peppenhausen v. Falke 19 F. Cas 1048 (C.C.S.D.N.Y. 1861); Madey v. Duke University 307 F. 3d 1351 (2002); Rimmer (2005).
(4.) Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994).
(7.) Authors Guild v. Google, Inc., 770 F. Supp. 2d 666 (S.D.N.Y. 2011).
(8.) Authors Guild v. Google, Inc., 282 F.R.D. 384 (S.D.N.Y. 2012).
(9.) Authors Guild v. Google, Inc., 721 F.3d 132, 134 (2d Cir. 2013).
(11.) Authors Guild, Inc. v. Google Inc., 954 F.Supp.2d 282 (S.D.N.Y.2013).
(12.) The Authors Guild, Inc. v. HathiTrust755 F.3d 87 (2d Cir.2014).
(13.) The Authors Guild v. Google Inc. 804 F. 3d 202 (2015) United States Court of Appeals, Second Circuit.
(14.) The Authors Guild v. Google Inc. 804 F. 3d 202 at 212 (2015) United States Court of Appeals for the Second Circuit.
(15.) The Authors Guild v. Google Inc. 804 F. 3d 202 at 213 (2015) United States Court of Appeals for the Second Circuit.
(16.) The Authors Guild v. Google Inc. 804 F. 3d 202 at 214 (2015) United States Court of Appeals for the Second Circuit.
(17.) The Authors Guild v. Google Inc. 804 F. 3d 202 at 215 (2015) United States Court of Appeals for the Second Circuit.
(18.) The Authors Guild v. Google Inc. 804 F. 3d 202 at 216–217 (2015) United States Court of Appeals for the Second Circuit.
(19.) The Authors Guild v. Google Inc. 804 F. 3d 202 at 218 (2015) United States Court of Appeals for the Second Circuit.
(20.) The Authors Guild v. Google Inc. 804 F. 3d 202 at 219 (2015) United States Court of Appeals for the Second Circuit.
(21.) The Authors Guild v. Google Inc. 804 F. 3d 202 at 220 (2015) United States Court of Appeals for the Second Circuit.
(22.) The Authors Guild v. Google Inc. 804 F. 3d 202 at 221 (2015) United States Court of Appeals for the Second Circuit.
(23.) The Authors Guild v. Google Inc. 804 F. 3d 202 at 221–222 (2015) United States Court of Appeals for the Second Circuit.
(24.) The Authors Guild v. Google Inc. 804 F. 3d 202 at 223 (2015) United States Court of Appeals for the Second Circuit.
(25.) The Authors Guild v. Google Inc. 804 F. 3d 202 at 224 (2015) United States Court of Appeals for the Second Circuit.
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(29.) Brief of Amicus Curiae of Literary Authors in Support of Petitioners in The Authors Guild v. Google, Inc. (2016). Available at https://www.authorsguild.org/wp-content/uploads/2016/02/authors_32413-pdf-Strong.pdf.
(30.) Brief of Amicus Curiae The Copyright Alliance in Support of Petitioners in The Authors Guild v. Google, Inc. (2016). Available at https://www.authorsguild.org/wp-content/uploads/2016/02/copyright-alliance_160106-for-filing.pdf.
(31.) Brief for Elsevier Inc. and Hachette Book Group, Inc. in Support of Petitioners in The Authors Guild v. Google Inc. (2016). Available at https://www.authorsguild.org/wp-content/uploads/2016/02/15-849-tsac-Elsevier-Inc-et-al.pdf.
(32.) Brief Amici Curiae of Copyright Clearance Center, Inc., the International Federation of Reproduction Rights Organisations, and Marybeth Peters in Support of Petitioners in The Authors Guild v. Google Inc. (2016). Available at https://www.authorsguild.org/wp-content/uploads/2016/02/Copyright-Clearance_15-849-tsac-The-Authors-Guild-et-al-v-Google-Inc.pdf.
(33.) Brief Amici Curiae of Copyright Clearance Center, Inc., the International Federation of Reproduction Rights Organisations, and Marybeth Peters in Support of Petitioners in The Authors Guild v. Google Inc. (2016). Available at https://www.authorsguild.org/wp-content/uploads/2016/02/Copyright-Clearance_15-849-tsac-The-Authors-Guild-et-al-v-Google-Inc.pdf.
(34.) Brief of Amici Curiae International Authors Forum (IAF), International Publishers Association (IPA), and International Association of Scientific, Technical and Medical Publishers (STM) in Support of Petitioners in The Authors Guild v. Google, Inc. (2016). Available at https://www.authorsguild.org/wp-content/uploads/2016/02/15-849-Amicus-Brief-of-International-Authors-Forum-IAF-et-al..pdf.
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(37.) Swatch v. Bloomberg 742 F. 3d 17 (2014).
(39.) Naomi Novik, Temeraire, Del Rey and Voyager, 2006; Naomi Novik, Throne of Jade, Del Rey and Voyager 2006; Naomi Novik, Black Power War, Del Rey and Voyager, 2006; Naomi Novik, Empire of Ivory Del Rey and Voyager, 2007; Naomi Novik, Victory of Eagles Del Rey and Voyager, 2008; Naomi Novik, Tongues of Serpents, Del Rey and Voyager, 2010; Naomi Novik, Crucible of Gold, Del Rey and Voyager, 2012; Naomi Novik, Blood of Tyrants, Del Rey and Voyager, 2013; and Naomi Novik, League of Dragons, Del Rey and Voyager, 2016.
(40.) Suntrust Bank, as Trustee of the Stephen Mitchell trusts f.b.o. Eugene Muse Mitchell and Joseph Reynolds Mitchell v. Houghton Mifflin Company 268 F. 3d 1257 (2001); and Salinger v. Colting607 F.3d 68 (2010).
(41.) Shepard Fairey v. Associated Press No-09-01123 (SDNY 2010); Cariou v. Prince 714 F. 3d 694 (2d Cir. 2013).
(42.) Jon Blistein, “Beastie Boys Settle Lawsuit over “Girls” Toy Commercial,” Rolling Stone, 18 March 2014. Available at http://www.rollingstone.com/music/news/beastie-boys-settle-lawsuit-over-girls-toy-commercial-20140318; and Jason Newman, “Beastie Boys Win $1.7 Million in Monster Energy Copyright Lawsuit,” Rolling Stone, 5 June 2014. Available at http://www.rollingstone.com/music/news/beastie-boys-win-1-7-million-in-monster-energy-copyright-lawsuit-20140605.
(43.) The Trans-Pacific Partnership. Available at https://ustr.gov/trade-agreements/free-trade-agreements/trans-pacific-partnership/tpp-full-text.