Ius et Iustitium is happy to present this guest post by Jake Neu. Mr. Neu is a partner at Bradley Arant Boult Cummings LLP. This is the second part of a two-part series, part I can be found here. Mr. Neu argues in favor of the civil law (or droit d’auteur) understanding of copyright. A reply to this series, countering that the droit d’auteur (and copyright generally) is ill-founded on natural law and Thomistic grounds, will follow.
Defining Fair Use
As introduced in my first post on copyright law, fair use is a peculiarly American legal doctrine that permits the public to copy copyrighted works without payment to the original author in various circumstances. Other Anglo-American jurisdictions have some notion of fair use or fair dealing, but these are typically more limited in scope, nothing like the fact-based flexible inquiry found in the United States. But as I also previewed in the initial post, the flexibility of the inquiry and its increasing scope has also been the source of two concerns. First, there are jurisprudential concerns about fair use exceptions swallowing the grant of copyright. Second, pragmatically, the application of fair use in any given case has become highly unpredictable. In this post, I argue that by introducing to the fair use analysis certain principles from the natural law and common good jurisprudence underlying the Continental conception of author’s right, we may retain the flexibility so advantageous to the American conception of fair use while also providing predictable contours and limiting principles to allay the twin concerns that fair use raises.
What is Fair Use in the US?
The foundation of Anglo-American copyright lies in addressing the problem of protecting book publishers who first brought a work to market from copiers who could quickly and cheaply reproduce the first editions that original publishers took significant cost and effort to prepare. But this was always in tension with the free dissemination of knowledge, and courts quickly recognized that certain acts of copying did not infringe a copyright. The 1841 case of Folsom v. Marsh would ultimately define fair use in the US. In Folsom, Justice Joseph Story (sitting in the Massachusetts circuit court) held that a certain abridgement of a 12-volume biography of George Washington was not a new work, but rather an infringement. In deciding the case, Justice Story announced a number of considerations that would be used to determine whether a later author’s copying “fairly cites” the original work:
[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy … In short, we must often … look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.
This paragraph became the basis of the American fair use doctrine, which holds that certain copying is not infringing if the copying is done judiciously and for reasons other than mere commercial exploitation of the original work. Later decisions relied on Folsom’s factual inquiries, and they were eventually codified in 1976 as the following four factors in 17 U.S.C. § 107:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Notably, the statute does not limit the factual inquiries of fair use to these four factors.
Today, the primary factors in the decision are the first, “the purpose and character of the use,” and the fourth, “the effect of the use upon the potential market or value of the copyrighted work.” The first factor expresses a preference for noncommercial uses, whereas commercial uses are more likely to be deemed infringing. For the fourth, use of a work is often deemed fair use if the later use is “transformative,” that is, that it presents the work in a new way or to a new market that would not be fairly deemed to be within the author’s scope. An example is an artistic collage, such as a piece of art that combines tens, hundreds, or thousands of individual images to form a new image. On the other hand, if the new work is a “substitute” for the old (as J. Story determined that Marsh’s abridgment was), then the work is likely to be deemed infringing.
In addition to these four factors, Section 107 also includes a list of exemplary types of uses that would generally be deemed fair use absent extenuating circumstances. These are “criticism, comment, news reporting, teaching …, scholarship, or research.” I will return to this list below, but the point here is that these exemplary fair uses may or may not square with the four factors described above.
Fair Use Undone
This cursory examination of the historical background and current codification of fair use should raise the eyebrows of even lay readers. Put simply, the statute is a mess. It relies on four broadly stated factors, but two of them are almost wholly neglected by the courts today. Beyond the general preference for relying on the first and fourth factors, there is no ranked preference or weighting among the four factors. Nor are the four factors exclusive; a court may choose to divine some unknown fifth or sixth factor in coming to a conclusion. And finally, there is a separate list of exemplary “fair uses” that are disconnected from the four factors.
This statutory confusion arises from confusion about the purpose of fair use itself. Commentators have found numerous values that fair use is supposed to protect, from “social utility” to protection of market expectations. The result is that, lacking a coherent basis for why fair use exists, the doctrine is somewhat adrift, acting as a roving analytic framework that drops in to deem this use fair and that use not. It has expanded to cover more uses while also being unpredictable in application. For example, lower courts have broadly applied the fair use doctrine pursuant to the Supreme Court’s suggestion in Campbell v. Acuff-Rose Music, Inc. “to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Courts also rely heavily on “transformativeness,” that is, the extent to which a new work has a new message, meaning, or purpose from the old work it uses under the fourth factor. But these are both heavily subjective standards, with major differences in application across the federal appellate courts.
A Common Good Theory of Fair Use
At the risk of adding to the welter of competing explanations, I propose another theory for the purpose of fair use: defining fair use as those uses for which the right to copy or use the work free of infringement support the general common good. Thankfully, adopting a “common good basis” for fair use does not require a drastic reworking of the current statutory text. Instead, it merely requires drawing all the implications from how the statute is structured.
As noted above, the statute first lists certain exemplary uses to define fair use, namely, “criticism, comment, news reporting, teaching …, scholarship, or research.” Once these are listed, the statute states that “in any particular case,” the four statutory factors must be considered. The underlying characteristic of each of these exemplary uses is the public purpose of the fair use. Criticism, comment, and teaching are directed to public reception and investigation of a work; news reporting concerns public dissemination of the work or information in it for the common good; teaching, scholarship, and research concern the development of new works or information for advancing the common good based on the prior existing work. While the statute is admittedly not exhaustive, other potential fair uses should similarly advance a public purpose or the common good.
Therefore, a reasonable interpretation of the statute is to view the common theme of the exemplary fair uses as defining the general scope of fair use as supporting or enhancing the common good. The four factors are then used to examine “any particular case” to determine if the use (whether or not within the exemplary uses) is fair. This creates a two-step test: (1) Is the use one of the exemplary “fair uses,” or analogous to them in providing a public or common benefit? (2) If so, does it meet the four factors as a reasonable fair use that does not disrupt the settled expectations of the copyright owner?
This is certainly not the prevailing view of the courts today, who widely hold that the list of exemplary cases “are to be considered illustrative rather than comprehensive.”[1] The primary mode of analysis simply goes straight to the four factors without analogizing the considered use to any of the exemplary uses listed in the statute. And it is clear that Congress did not draft the statute in a way or intend for it to be exclusive. My proposed interpretation of the text respects this structure. But while my proposed analytical framework does not make the list exclusive, it does place more weight on the list of exemplary uses. They are not merely “illustrative”—instead, we should understand the text as saying, in so many words, that a fair use is one where the public benefits from the use. How substantial that benefit is, and the nature and reasonableness of the use, are then considered through the four factors in a given case.
This common good theory of fair use also respects the natural law origins of copyright and the rights enjoyed by the author, which were discussed in Part I of this series. In short, the author does have an expectation to control the commercial use and publication of the work, an expectation that arises out of the author’s own creation of the work. But as with any property right, that expectation of private enjoyment and benefit must yield when the public benefit demands it. Moreover, that enjoyment and benefit is not so much determined by the “foreseeable market” of the work, which the question of transformativeness of use in the current fair use analysis relies upon so heavily. Rather, it is a question of integrity and fair dealing with the work, and only limiting the author’s expectations where public benefit takes precedence.
The Common Good Theory of Fair Use in Action
Having defined what appears to be a simple change, let’s turn to two major Supreme Court cases in the 1980s, which demonstrate both a common good application of fair use and its defeat by the contemporary market-based analysis.
In 1984, the Supreme Court held in Sony Corp. v. Universal City Studios, Inc. that Sony was not liable for contributory infringement arising from purchasers of “VTR’s” (what we now call VCR’s) who recorded TV shows to watch at a later time, because the consumer’s copying was deemed fair use and not infringing. The television studios had argued that the unauthorized copying was not fair use, and they perhaps had a point—the consumer was indeed using the Sony VCR to copy the entire program. But the Supreme Court applied the four factors and found that the copying had little if any effect on the revenues enjoyed by the television stations. Towards the end of its analysis, it tossed in that the copying “yields societal benefits” because it “expands public access to freely broadcast television programs.” This meant that the copyright holder needed “to demonstrate some likelihood of harm before he may condemn a private act of time-shifting.” This was more of an attempt to buttress the opinion rather than a key part of the analysis, and the opinion is largely driven by market expectations. Nevertheless, the Court in 1984 at least gave some cursory value to the public benefit in its opinion.
The following year, the Court would not be so circumspect about public benefit. The Court held in Harper & Row v Nation Enterprises that The Nation’s early publication and discussion of a leaked portion of President Ford’s memoirs was not fair use. The Nation wrote a 2250-word article, of which only about 300 words were verbatim copies from the memoir. But these words concerned the most controversial decision of Ford’s presidency, the pardoning of Richard Nixon. The majority held that the pre-publication “scoop” by The Nation took the heart of the work and would have significantly dampened enthusiasm among the general public for purchasing the whole book. It also preempted an “exclusive” pre-publication that Time had separately contracted for with the publisher, causing Time to refuse to pay for the exclusive.
However, the majority glossed over the fact that the scoop was a newsworthy matter regarding a historical event and should have constituted news reporting—an express category in the fair use statute. Justice Brennan’s dissent raised precisely this issue, noting that Congress had already deemed news reporting to be a preeminent example of fair use. In Brennan’s view, this meant that the Court should lean towards finding fair use unless the four factors clearly demonstrated the use was not fair. He then proceeded to consider the four factors and the harm to the publisher. Brennan noted that book reviews commonly discuss books soon to be published, and the commercial nature of the publication is simply attendant to news reporting. Finding that The Nation’s article was a clear example of news reporting and the four factors did not render the use unfair in a particular case, Brennan dissented, joined by Justices White and Marshall.
Justice Brennan’s dissent in Harper & Row is a masterful opinion for applying Section 107 in a manner that considers the public benefit of the copying in question. Yet it was nonetheless a defeated minority opinion. For Brennan in Harper & Row, the societal benefit is the first and overriding consideration. In contrast the year before, the Supreme Court in Sony used the societal benefit issue more as confirmation that the use being considered was fair after considering the four factors—rather than as the threshold question. In Harper & Row, the majority actually used the commercial value of Time’s exclusive prepublication rights to argue against a finding of fair use. That is, it turned the market mechanism into an enemy of the public benefit by commodifying something that, in Justice Brennan’s opinion, the public should have had freer access to.
Taking the market theory to its logical conclusion, fair use would disappear in cases where market forces could commodify the right (e.g., by a prepublication “exclusive”), but be expanded in cases where the use transforms the commercial exploitation into a new, unexpected market. Looking beyond Harper & Row, we see this is exactly what has happened. Neither of the Supreme Court’s later fair use opinions in Cambpell v. Acuff-Rose Music, Inc. and Metro-Goldwyn-Layer Studios Inc. v. Grokster Ltd. seriously considered societal benefits or the relatedness of the uses at issue to the exemplary fair uses in the statute. Instead, the primary focus was on the transformative nature of the use and its effect on the market.
Ultimately, if we want to re-center the common good in our fair use jurisprudence, Justice Brennan’s Harper & Row analysis should point the way. As discussed above, this does not require passing a new statute or abandoning precedent. Rather, like the matter of beneficial utility in patent law, it is simply a matter of finding in our own legal tradition a public benefit and common good aspect inherent in intellectual property law, a tradition that predates the market-oriented, law and economics approach that dominates current intellectual property jurisprudence.
Jake Neu
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Campinha-Bacote v. Evansville Vanderburgh Sch. Corp., No. 314CV00056SEBWGH, 2015 WL 12559889, at *3 (S.D. Ind. Nov. 5, 2015) (citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-78 (1994)). ↑