Home » Copyright/Intellectual Property » Of fences and defenses

Of fences and defenses

21 June 2013

From Kevin Smith, Scholarly Communications Officer at Duke University:

It is very common to hear people say, in a discussion of copyright, that fair use is “an affirmative defense.”  One of the amicus briefs filed in the Authors Guild’s appeal of the favorable fair use decision in their lawsuit against the HathiTrust, however, puts that common assertion into question and raises an argument worth considering.  The brief . . . argues at some length that fair use is not and was not intended as an affirmative defense but is better viewed as a positive limitation on the rights held by a copyright owner. They argue, in short, that fair use is not so much a defense as it is a fence — a boundary that courts have built to prevent the exclusive rights in copyright from expanding too far.

. . . .

It is easy to see why fair use seems like an affirmative defense; the general assumption is that a defendant in a copyright infringement lawsuit admits, when raising fair use, that they were responsible for the use being challenged, but that that use was authorized by the law under section 107 of the Copyright Act.

. . . .

The “public relations” problem with this position is that talk about affirmative defense is often used to frighten potential users of copyrighted works away from their proposed use by telling them that if the copyright holder objects, they will have to “prove” fair use, which is difficult and expensive.  The legal problem with maintaining that fair use is an affirmative defense is found in that word “prove” — the HathiTrust amici maintain that, because fair use is NOT an affirmative defense, the burden of proof shifts to the plaintiff, who should be required to prove that the use in question violates their rights.

. . . .

If fair use is an affirmative defense, the burden of proving those additional facts that would establish the defense falls on the defendant.  She has to show that her otherwise infringing use was authorized by the law.  But the HathiTrust amici argue that that is not how fair use works.  They suggest, based on language in the statute, that fair use is about establishing the plaintiff’s right in the first place, so that the burden falls on that plaintiff to show that they have any right to prevent the particular use.

This is the difference between admitting the plaintiffs’ assertions and then arguing that there was a justification for the otherwise infringing activity versus denying that plaintiffs’ basic claim that they hold the right to object to the use in the first place.  It is an argument that fair uses simply fall outside of the scope of the copyright holders authority in the first place, 0n the other side of a statutorily-defined “fence.”  Then it becomes that copyright holders’ obligation to convince the court that their rights DO reach as far as they say they do.

Link to the rest at Scholarly Communications @ Duke and thanks to Matthew for the tip.

Copyright/Intellectual Property

12 Comments to “Of fences and defenses”

  1. PG, have you by any chance read this?


    The title really is self explanatory. That authors are allowing themselves to be taken advantage of like this…

    Or maybe just too many believing the lies. *sigh*

    • I have seen that, J.R. Very illuminating.

      You’ll probably remember that the first ebook royalty rate was 50%. Then, as ebooks began to look like they would be more than a hobbyist item, the big publishers all changed their royalty rates to 25%. Just a coincidence, of course.

  2. Summary: Amicus filers develop an entirely new theory of Fair Use more congenial to their preferred result than the established legal framework and claim that it is much more consistent with the statute’s purposes and language than the aforementioned established legal framework.

    Summary of the Summary: Sun to rise in East sometime tomorrow morning.

    It is really amazing what clever people can come up with.

    Law, facts, table. Which one you’re pounding on shows the relative strength of your argument.

    • “Law, facts, table. Which one you’re pounding on shows the relative strength of your argument.”

      I always look forward to your posts and your clever sense of humor.

      • Thank you, but I hasten to add that that is my riff on the ancient legal maxim:

        “If the law is on your side, pound on the law. If the facts are on your side, pound on the facts. If neither the law nor the facts are on your side, pound on the table.”

    • Yes, but pounding the table will get better press, see DoJ v. Apple for the most recent example. Apple pounds the table and the tech and publishing press swoons. DoJ lays out the law and the facts and the press talks about how everyone in the courtroom except the judge was falling asleep. Spoiler Alert: Judge Cote is the only person who matters in this trial.

    • Mr Cabot, I was going to weigh in, but you wrapped up all my thoughts and arguments in a concise package. Well done.

      I heard the maxim as “When you have the law, argue the law. When you have the facts, argue the facts. When you have neither, shout.” 😉

  3. “fair use is not and was not intended as an affirmative defense but is better viewed as a positive limitation on the rights held by a copyright owner.”

    Eh, don’t buy it. It’s completely revisionist history….

    Yet, it’s probably a better way to look at things in the digital world and it would be awesome to see.

    Given that before the digital boom the average American interacted with copyright only tangentially (maybe they used a copy machine, or taped a show on a VHS player). Now, the average American interacts with copyright every day. DRM, complied code, photo sharing, social media. Why should the copyright holder get to dictate how that copyrighted material is used. They would have thought it absurd if a copyright was used to control which room a book could be read or social interactions between friends.

    I’d love to see a media company explain to a jury why they have the right to dictate if you can post that video of your baby’s first steps, if the Simpsons happen to be playing in the background. Or if I can watch a movie on one device but not another.

  4. “Why should the copyright holder get to dictate how that copyrighted material is used. “

    Because the use is selling it?

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