Friday, April 17, 2015

Pam Samuelson on futures of fair use

University of Washington School of Law: Fair Use In The Digital Age: The Ongoing Influence of Campbell v. Acuff-Rose's "Transformative Use Test" (aka Campbell at 21)
Opening Keynote Address: Professor Pam Samuelson: Possible Futures of Fair Use
Campbell had a “transformative” impact on fair use law. Thanks to Judge Leval for contribution to literature and positive evaluation of fair use law.  Thanks to Zahr Said for organizing.
Campbell is doctrinally most significant copyright decision of 20th century; only close contenders are Feist and Sony, which are cited more often but for narrower points.  Court took case to disclaim Sony & Harper & Row presumptions of unfairness for commercial uses, and of harm if commercial—that is a lot of presumptions for a commercial use, and lots of fair uses have commercial dimensions. 
More nuanced interplay among fair use factors: think about the way they relate to one another, and how much each of them should weigh, instead of just counting.  Public interest can be considered; bad faith in sense of rejecting need for license is irrelevant: not unfair because D initially sought a license b/c that might just be attempt to avoid litigation. Recognition that market for licensing certain uses, e.g. parody, may not work well. And yes, transformative uses are more likely fair.
Three types of cases: altering expression for new work: Campbell, Suntrust, Cariou v. Prince
Productive use of first work in second work: Generally iterative copying to illustrate a point, set context: Bill Graham Archives, New Era.  Iterative but for different purpose: Kelly v. ArribaSoft. Stands in contrast to “nontransformative”—Tushnet worried that Campbell’s emphasis on transformation would put nontransformative, but expressive, works at risk.
Bill Graham Archives was equally transformative as a case: although the use was productive in Samuelson’s sense, the decision talked a lot about the reasonableness of the use in light of its purpose.  Gave a lot of comfort to those kinds of uses. Campbell asked whether the amount taken was reasonable in light of purpose, not necessary, and Bill Graham solidifies that. Case also involved failed licensing negotiations but still fair.
Cairou v. Prince: 25 of 30 uses held fair; remand for 5 others (cases settled); would reasonable observer consider works to be transformative (not what artist said he intended)—definitely a different message than Cariou was conveying.
HathiTrust: fulltext searchable database was transformative creation: different purpose though iterative copies. Enabling access to full text for print-disabled persons: nontransformative but still qualified as fair use.  Fair use can serve as a gap filler, not trumped by specifics of 108 & 121.  Speculation re harms—hypothetical licensing markets, security breach—were insufficient.
Range of possible futures: Status quo seems pretty good to me.  Another possibility: pendulum swings back some or a lot in the courts as to transformed expression or different purposes cases. Legislation to cut back on fair use or require equitable renumeration for distributional uses; WTO/ISDS challenge to fair use as treaty violation.  Fair use v. the three step test?  Most copyright limitations and exceptions are statutory and specific. Fair use is open ended and flexible, but fair use cases fall into policy relevant clusters.  Interference w/ normal exploitation?  If too much harm to the market, use won’t be fair, so fair use satisfies that requirement too. Unreasonably prejudice legitimate interests of rights holders? Fair uses don’t.  Should WTO panel consider one step at a time or weigh holistically?
Does Cariou or Kienitz undermine derivative works right? No. Both defendants conveyed a very different message through transformativeness of expression. Both are critical commentary cases; both were uses plaintiff wouldn’t have been willing to license; claims also have the flavor of moral rights objection.  Rulings would have been even stronger if they pointed this out.
Unfairness in Morris cases/no SJ for defendant in NJ Media v. Pirro for non-critical transformed-expression fair use cases.
Different purpose cases: 16 of 50 cases in past three years. 7 were easily fair use, even by Jane Ginsburg’s lights—e.g., guy who sued lawyer who distributed his CV to court and opposing parties as part of considering him as expert witness; use of blog for disciplinary proceedings; eBay resales of magazines featuring photo on front cover.  4 were plaintiff wins (e.g., photo of gay couple used in political ad in Colorado—personal privacy interest, which she thinks isn’t a © interest); White v. West (briefs in West database); AIP v. Schwegman & Winstead (lawyer copying of STEM articles for assessment of patentability); 2 Google book search cases.

Future: fair use as affirmative defense or not? Campbell was wrong about this case.  Fromer: market benefits can be considered. Different purpose cases = nontransformativeness but without the negative presumptions? First Amendment: why not talk about it? Hughes: maybe fair use can become broader as the work gets older.  Example: Colting’s sequel to Catcher in the Rye; maybe it makes it fair or makes it so no injunctive relief would be appropriated. Community-endorsed best practices guides given some weight, even if not negotiated with righs groups.  Recognition of “user rights” as in Canada.
Contracts overriding fair use rights: case law is pretty negative.  Anti-reverse engineering clauses in mass market licenses are troubling: unenforceable as conflicting w/copyright policy?  Judicial recognition of fair use circumvention, with 1201(c)(1) as the statutory hook; an implied right to make a tool to accomplish fair uses?
Remedial responses: damages instead of injunction: Campbell endorses, but courts haven’t followed the lead. Appropriate in appropriation art cases?  If a fair use case is close, it shouldn’t be willful even if ultimately infringing; statutory damages in plausible fair use cases range from minimum to maximum: chilling effects problem.
Fair use has evolved substantially, as Congress expected. Important reason: © got much more complicated and bigger, as Litman wrote. Fair use started out as a way to help second comers to create new works, but provided useful fraimwork for many types of uses. Now: tool through which to balance interests in times of rapid change. Best future: status quo and new horizons.
Hughes: agree with you on conclusion, just don’t like transformativeness. Expert witness cv: there’s no market; nature of work is factual.  Didn’t need to call it transformativeness. 
Samuelson: working with existing framework, where different purpose matters a lot. Different purpose doesn’t have to be called transformativeness to be fair.  Court basically says: this isn’t the kind of thing we’re talking about.  (Bond case where the work was not factual, or at least allegedly not.)
Q: question about remix cultures: DJ who does remix has great work but won’t make it to broad audience through traditional distribution methods (work on iTunes is largely stripped of interesting stuff).
Samuelson: if the year after Campbell remix culture had been everywhere, everyone would have freaked out.  Industry has become more supple about UGC, including music, than they would have been in previous decades. But commercially viable remix is still something that fair use can do a bit on, but can solve some problems. Compulsory licensing?

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