Columbia Law School, Fair Use Symposium
Keynote Speaker: Paul Goldstein
Fair Use in Context
Fair use is notoriously tricky. Beebe counts 2.4 fair use articles for every court opinion over 1990-2005. There’s a fatal attraction to general theories of fair use. The law on the books grapples with the law in action (people’s copies made on the fly, etc.). In other countries, much of this falls under the head of fair dealing.
Why fixate on fair use and not idea/expression or originality? Fair use has the look of a constitutive doctrine, like takings in property or proximate cause in torts – a doctrine that reduces into a nutshell the foundational assumptions of the law itself. Fair use is a look into the gears of copyright.
The classic dilemma: theories are too broad to use for prediction, or too narrow to sustain fairness. The Classroom Guidelines are Dickensian in specificity, and yet they don’t help predict results for teachers operating outside them. Wendy Gordon’s classic article on fair use as market failure is as close as Goldstein thinks anyone has gotten to hitting the sweet spot between predictability and rigidity. Gordon’s third constraint – that awarding fair use wouldn’t hurt the owner’s incentives substantially – was necessary, but also problematic, as Gordon later recognized; it holds the possibility of unraveling fair use.
Without copyright, too little art will be produced; with copyright, too little art will be used. Gordon’s test asks courts to evaluate every partial market failure with an eye towards the incentive side. But perhaps instead of putting market failure at the center of the inquiry, we should put access interests at the center. (Though of course that doesn’t help predictability.)
Gordon later divided market failure into two categories: market malfunction and inherent market failure – the latter of which is where no useful markets can ever be formed. This category allows us to put nonmarket considerations in the balance. But it is still lacking in certainty and predictability.
Do we need a general theory of fair use? From most judges’ perspectives, the quest for general theory appears to be a (harmless) academic diversion. How can we expect real people to live in unreal houses? The statutory factors are abstract, unreal, and nonreflective of the circumstances under which authors create, publishers publish, and lawyers advise.
Fair use is pragmatic, but cases tend to cluster on patterns. Each cluster has its own equities and special considerations. For example: cases testing secondary liability for new technologies – photocopying, cable retransmission, home videotaping. What these cases have in common is (1) a new technology, (2) generally omitted from the Copyright Act, (3) which is in increasingly broad use by consumers, (4) thus increasing social value from the use, and (5) at least temporary high transaction costs. In Sony, the statutory factors weren’t all that important – the preamble was irrelevant to home taping practices; the amount of the work used was ignored because to apply it would mean that videotaping was never fair use; only the fourth factor mattered, with the Court finessing that factor’s fatal circularity by using burdens of proof. But the equities were dominant: the prevalence of VCRs by the time of the various opinions.
Parody offers a contrast, because the preamble matters, as well as the four factors. But it’s the categorical nature of parody that matters, not the factors themselves, given how the weighing and shaping of the factors differs in parody cases from their use in other cases. Neither the commercial/noncommercial division nor the public/private division have any weight here, but rather the user’s parodic purpose. As for the nature of the copyrighted work, the parody cases suggest that the published author deserves what s/he gets. The amount taken calibrates to the parody category – users should take what’s necessary to conjure up the original. And the market test asks whether this is a true parody or a derivative work. Is the author exercising a copyright owner’s legitimate right, or is this an attempted suppression – an abuse of copyright?
We should attempt to decide cases under relevant categories, rather than on the basis of factors imposed from outside. Categories can be identified/expanded: Reinhardt’s decision in Sega v. Accolade explaining why copying for reverse engineering is fair use. Sega was immediately recognized as correct, and Congress endorsed it later.
Beebe’s study can be read to support pattern-based adjudication. If courts don’t stampede the factors (read them to favor all one side or the other), that’s consistent with the idea that, depending on the case, only some of the factors matter. And if lower courts often ignore Supreme Court decisions and appellate authority, that may not be because they’re rebelling or incompetent but because ostensibly controlling precedent was from an inapplicable context. Fair use is not a novel, but a compilation of short stories loosely connected by a single question: what result should obtain when Congress has not spoken? Each story has its own equities and moralities.
Risks: categories may ossify. This danger is particularly salient in new technology cases, where transaction costs are routinely lowering. It’s important to recognize, as in Texaco, when licensing has become available. Another danger is that a slogan or catchphrase will be mistaken for a category – “transformative use” is a current example. Bill Graham Archives and Perfect 10 represent mindless soundbites triumphing over principled analysis. The mere transport of a work from one medium to another without abridgement or other modification is not a fair use category. Justice Souter and Justice Story would have found these infringing.
In new contexts, we will have to decide whether new categories are needed. Was Sega a “new technology” case? Not really, because it wasn’t about transactions costs. Also, the code in Sega was not published. It was an abuse of rights case. Courts may need to consult the equities and efficiencies of more than one category in deciding new cases; and over time, the cases will become a category in themselves, as Sega did.
Any considerations that will always apply? (1) Whether the accusing work comes from a Berne country. Fair use violates Berne’s requirement of certainty for copyright owners. Bill Graham Archives and Perfect 10 violate Berne, though of course the US can treat domestic authors as shabbily as it wants to. But is it right to give our authors protection below the international norm? American exceptionalism is not always a good thing.
(2) In giving advice, identify the category of use and read the relevant cases, then decide what the outcome should be. But deciding the appropriate category can be difficult.