Keynote Address: The Honorable Pierre Leval
Earned a reversal rate of 67% in his significant fair use
cases; at the cutting edge of law in the role of the salami. Campbell:
good framework for authors, without manacles on science.
The law before Campbell:
with the exception of Story’s spare but well targeted caution in 1841 that fair
use must not supersede the objects of the original, courts had failed to
distinguish between infringement and fair use; decisions made largely from the
gut. The notion that commercial uses were presumptively unfair plagued fair use
analysis until blunted by Campbell. He is also dubious whether Sony’s fair use analysis was correct at
all—seems like an outlier.
Harper & Row
emitted numerous distracting aphorisms. Repeated Sony’s pernicious declaration of hostility to commercial uses;
asserted that quotation from unpublished works tends to negate fair use. If
correct where there was a scoop of imminent publication, couldn’t be correct
when it reveals facts the rightsholder tries to conceal—e.g., hypothetical
correspondence between Nixon and Ford promising a pardon in return for
agreement to resign.
There is need to test accuracy of factual works, allowing
quotation. But that doesn’t mean you can copy wholesale from an earlier
treatment of same subject just because it’s a factual topic—again contrary to Harper & Row. And finally, the Court
erred in saying “fair use presupposes good faith and fair dealing,” in
reference to the Nation’s scoop/unauthorized access.
Campbell brought
an end to this bad piloting and aimless drift.
Undertook at last to explain fair use in terms of the goals of
copyright: protection of author’s exclusive right to publish for profit while
allowing for the enrichment of public understanding to advance new objectives
or achieve new understandings so long as there isn’t too much interference with
the author’s market. Most important: Campbell
taught us not to look too hard for answers in the words of the statute, because
Congress clearly did not intend to tell us what fair use was but rather to
acknowledge the doctrine’s existence, leaving further development to the
courts. Judges often feel insecure w/copyright cases and the doctrine is quite
complex. Would have been better for Congress to say “fair use is not an
infringement.”
Campbell reinforced
Story’s insistence on superseding the object of the original, and rejected
anti-commercial law. Negated/cast doubt on continuing validity of Nation’s good faith requirement.
Cautioned courts in cases raising nonfrivolous fair use defenses to be hesitant
to enjoin.
Asking: whether the copying pursues a different objective,
and does it compete significantly with the original by offering itself as
substitute in a market the law reserves to the copyright owner? These are
intertwined questions. More divergence in objectives, less likely competition
in original’s exclusive markets.
Substitution needs to be more than trivial.
Campbell’s
touchstone is copyright’s touchstone. A © law without fair use would fail to
satisfy copyright’s objectives. Coming just before the dawn of the internet, Campbell was prescient or just lucky in
formulating a mode of analysis that could answer new questions arising in
droves in the digital age.
How is Campbell
doing? The view that complete unchanged copies can’t be fair use is
arbitrary/incompatible with objectives of copyright. Would be disastrously
limiting. Innumerable valuable functions are served by complete copies that don’t
harm copyright owner’s market. Only way
to explain how bad L. Ron Hubbard was is to quote big chunks of his letters.
Internet: innumerable copies of the entirety; numerous
well-reasoned decisions allow complete copies if the copying expands knowledge
about the copied items—e.g., Kelly v.
Arribasoft, where low resolution protects against substitutions iParadigms:
detecting plagiarism. HathiTrust: tool for identifying and
locating books that use a particular word/subject.
Another objection is that under Campbell, transformativeness may override the fourth factor. Courts
need to determine whether the secondary work competes with a derivative work of
the original. These aren’t criticisms of
Campbell but of misinterpretations
thereof. Public benefit is important, but not at the expense of the fourth
factor. Campbell said so and remanded for factfinding on that point. Lower courts may be speaking incautiously, or
in the absence of a plausible argument based on derivative rights, when they
discuss only the market for the original.
Vagueness and unpredictability: Predictability is a good
thing, but bright line rules are likely to produce bad results in complicated
situations. Ultimate loser is the
public, the primary intended beneficiary of copyright. Injury occurs regardless of whether fair use
is construed too broadly, deterring creation, or too narrowly. Any bright line
test he’s seen suggestion would either place unreasonable restraints on
creativity or diminish the rights of copyright owners. Hard to imagine a better
test with more acceptable results.
Also doesn’t agree with unpredictability claim. Courts of
appeals cases seem to have produced reasonable/predictable results.
Posner argues that instead we should look to
complement/replacement relationship.
Complement: hammer & nails. Is the D’s work a complement? Posner says book reviews are complements to
books. If reviews depended on permission of publisher, public would distrust
reviews. Thus, both sides benefit from the right to quote without permission,
and consent to quote can be inferred from overall benefit of quotation rights
to publishers. Respectfully, nope. This
may work fine for the book review example, but not other heartland examples. (RT: I think it doesn’t work for book reviews—it
assumes that book review readers know the law and take it into account in their
credibility determinations, and that this is why publishers generally refrain
from trying to license book reviews. That is implausible.) Consider when secondary author is
investigative reporter who quotes from unpublished works to reveal crimes,
bigotry, corruption, etc. There would
not be general permission. So too with
parody. Few authors are eager for
ridicule. Complementary formula would
kill off many forms of fair use.
A futher problem: the word complementary perfectly describes
classic derivative works. Novel to film or cartoon character to plush toy or
translation of poem into another language.
Overlap with derivative works right: it doesn’t follow from
ambiguous language that transformativeness is inappropriate to signify the crux
of the factor one inquiry. Hasn’t heard
a better word for that question: Is there a productive change? The word derivative
suffers from the same ambiguity. “Transformative”
was never intended as a full definition of fair use.
Congress wasn’t defining derivative works, but legislating
in an older mode, using courts as partners by using a list of examples conveying
the types of transformations Congress had in mind as derivative works, leaving
courts to formulate a standard that would accomplish Congress’s goal. Campbell didn’t say much on this: only
those markets that creators would in general develop. That’s a limitation, not a scope: makes sense
as a limitation preventing authors from enlarging the scope of their rights by
making offers to license parody. But Campbell
didn’t explore the territory covered by derivative right.
Focus on nature and purpose of copyright can provide a
helpful approach. © protects author’s manner of expression. Examples in
statutory list are works that seek to re-communicate expression of original
converted into different form or medium. The more the aim of the secondary
copying is to communicate the original author’s manner of expression in changed
form without commentary on it or providing information about it, the stronger
the argument for classification as a derivative work. The more the new work
undertakes to communicate attitudes or information about the work, the more it
goes to fair. If you love it for the same reason—it re-presents original
creation in a new form—then it’s derivative.
Few pronouncements more harmful to fair use than that fair
use presupposes good faith and fair dealing.
Good faith requirement would undermine ©’s primary goal of enriching
public knowledge, and have bad consequences for all. © is a commercial right
given to stimulate creativity to benefit society at large. Any right to suppress facts, ideas, fair use
would be harmful. User’s good or bad
faith has no bearing on the copyright law’s goal. Shouldn’t matter if secondary
author obtained copy by armed robbery: there are other remedies for that. Good faith would also impose huge
inefficiencies/uncertainties on everyone concerned. Fair use should generally
be resolvable on the pleadings or at most on sj. If moralistic evaluation of conduct is
important, courts will frequently be unable to decide a case pretrial. SCt
should finish the job and expressly disavow the Nation’s terrible statement.
Copyright and freedom of the press are uncomfortable
bedfellows. © might have trouble being constitutional without express
authorization; if too broad, still intolerable clash w/free press. Fair use is
1A’s agent within the framework of copyright, converting conflict into synergy.
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