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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