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The Pendulum May Be Swinging Away from Fair Use

4 November 2017

From IP Buzz:

“Fair use…is not a jacket to be worn over an otherwise infringing outfit” explained Judge Rakoff in the latest decision that seems to indicate that courts are tempering the fair use defense to copyright infringement.

On September 8, 2017, Judge Rakoff issued his written opinion in Penguin Random House LLC et al. v. Frederick Colting et al., 1:17-cv-00386 (S.D.N.Y. Sep. 7, 2017), finding that defendant’s condensed and edited children’s versions of various classic novels, known as “KinderGuides,” did not fall under the fair use defense to copyright infringement.

Defendant argued that the guides were transformative and akin to “CliffNotes” for children, including “condensed [and] simplified” versions of the underlying works as well as original content in the form of “Main Characters,” “Key Words,” “Quiz Questions,” and “Analysis” pages. Opinion at 2. Judge Rakoff, however, disagreed with this characterization, noting that the guides used the vast majority of each underlying work, including its “themes, characters, plots, sequencing, pace, and settings,” without providing any significant analysis or additional context. Id. at 16.

The court found that defendant’s addition of brief “Analysis” and “Quiz Questions” sections to the work did not cure the infringement, stating that the guides “do not recount plaintiffs’ novels in the service of literary analysis, they provide literary analysis in the service of trying to make the guides qualify for the fair use exception[.]” Id. at 24.

. . . .

Given the non-dispositive and subjective nature of each fair use factor, the application of this doctrine can vary meaningfully over time and between courts. From 2013 to 2015, it seemed the pendulum had swung decidedly toward increased findings of fair use in a number of varying situations. Two key examples led many to comment that fair use was becoming so broad as to usurp copyright.

For example, in The Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015), the Second Circuit held that Google’s publication of scanned segments of copyrighted works in its Google Books search results was a fair use of underlying copyrighted materials because, even though no commentary or changes in general were added to the copyrighted text itself, the purpose of the use was highly transformative in that Google used the materials to provide information about the book, not the book itself, to the searcher. The court also found that the segments of text shown were limited and that it was unlikely that Google’s use would interfere with the market for the protected works.

. . . .

In contrast with the above, over the past year or so courts – including in the Second Circuit – have begun to move away from this broad application of the fair use doctrine, adhering instead to a stricter view of what is transformative, placing more emphasis on the commercial nature of the infringing work, narrowing how much of a work can be “fairly used,” and focusing on what uses will leave the original work’s primary and secondary markets intact.

Link to the rest at IP Buzz

PG says Fair Use is a strange and wondrous place where (sometimes) judges who have not dealt with copyright matters either on the bench or in their pre-bench legal activities are required to become experts on an arcane niche of copyright law. The lawyers in such cases are usually experts in copyright law and are highly knowledgeable about the conflicting court decisions that govern fair use.

Speaking generally:

  1. The purpose of copyright law, as set forth in the United States Constitution is “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
  2. US Copyright laws, written pursuant to the constitutional copyright clause above, give the owner of copyright (usually, but not always, the author) the exclusive right to do and to authorize others to do the following:
    • To reproduce the work in copies or phonorecords;
    • To prepare derivative works based upon the work;
    • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
    • To publicly perform the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
    • To publicly display the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work.
    • To digitally transmit sound recordings by means of digital audio transmission.
  3. Fair Use is an exception to the author’s exclusive rights to reproduce, etc., his/her creative works. A person or entity operating under the Fair Use exception may utilize portions of the author’s work without infringing the author’s copyright.
  4. Fair use includes, but is not limited to (in the words of the statute) “such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”
  5. If you’re confused by that statutory language, Congress has helpfully provided a way of determining whether something is or is not covered by the fair use exception:
    1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    2. the nature of the copyrighted work;
    3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    4. the effect of the use upon the potential market for or value of the copyrighted work.
  6. In making a decision whether a particular creative work (book, photo, painting, etc., etc.) violates the copyright of a creator of another creative work, the federal judge is required to consider each of these four factors, considering what the alleged violator did that falls under each factor, giving it some sort of weight, then considering each of the factors and their weights, determine which side of the fair use fence the new creative work falls into.
  7. If you were to worry that some judges lose their balance, your worries would be justified.
  8. Compared to the blooming garden of court decisions relating to the rights of drug dealers and the obligations of people who arrest them, copyright in general and fair use in particular are nearly barren deserts.
  9. Hence, whether an imaginary legal pendulum is swing towards or away from fair use is often analyzed from a handful of court decisions, most of which are closely tied to a specific set of facts

At this point, PG is certain the subject of fair use is much clearer in the minds of all the visitors to The Passive Voice.

Some activities clearly fall on one side of the fence or the other.

Copying 50% of someone else’s book and pasting it into your book will not be fair use. Quoting a sentence from someone else’s book and putting it in your book, particularly with attribution, will be fair use.

Copyright/Intellectual Property

36 Comments to “The Pendulum May Be Swinging Away from Fair Use”

  1. A big part of the problem is that copyright used to be for a few years, now it’s ‘forever’ for all practical purposes.

    All this mess so a mouse would never be free for anyone to draw, not that the company in question didn’t mind using other people’s out-of-copyright works – they just never wanted theirs to be used in the same manner.

    • I suspect many authors are just as interested in copyright as the mouse. Without the mouse, those authors would still have the same motivations and interests.

      Copyright benefits lots of people.

      Likewise, many people are motivated by the desire to make money from what someone else created.

      Follow the money. It’s a very accurate divining rod.

      • Few authors are as interested in perpetual copyright as the Mouse.

        • I just want to be able to make money from my work while I and my wife are alive.

          • You already had that when copyright was limited to life plus 50 years. The principal beneficiaries of further extensions of term are corporate authors, or corporate holders of rights for the term of the copyright.

            • Especially when the copyright can be extended even further. There’s just no need for a copyright to still be in place 100 years after the creator died, just so some corporation can control it.

              I’d be happy with copyright terms being 50 years from creation. Not from author’s death. From creation of the work. And non-renewable. That seems like plenty to me.

  2. lifetime of artist/author/creator plus 70 years for their grandchildren and great grands to merit from. One cant sell an artist like a drugstore familiy owned, or an orchard family owned. So the author’s works in books and other items are ‘the family estate,’ for what it’s worth. Seems ok to me.

    Art is another story, you could copy a picasso, and students who are trying to learn to paint certainly do, putting the cute phrase onto their copies, ‘after picasso’. I’ve watched what happened with Munck’s ‘the scream’ in terms of others adding their fillips and interprets to it. I cant say it in any way improved the original, in fact, often the meaning of the original was lost to many.

    there are billions of ideas in the world not yet brought forward, I think there is plenty of plenty to go around without using/squatting over anything made prominent by others. Just my .02

    • “One can’t sell an artist like a drugstore familiy owned, or an orchard family owned. So the author’s works in books and other items are ‘the family estate,’ for what it’s worth.”

      Uh, no.

      The Conan Doyle copyrights are not owned by the family. The Doc Savage rights belong to Conde Naste, not the family of its creator, because CN got them from the widow.

      Fun fact: When Parliament was debating extending copyright law hundreds of years ago, Macaulay pointed out how this argument was false. Even back when copyright lasted only 28 years, there were already cases of a dead creator’s family no longer benefiting from the copyright because it had been acquired by a publisher.

      That creator was Milton:
      https://en.wikisource.org/wiki/Copyright_Law_(Macaulay)

      • I was thinking Nate, not of publishers holding copyright, I was referring to some of the more notable authors now having walked on, whose copyrights are held by the family. Just one instance I’d offer, such as the Jung family in Switzerland, UK, France and USA…

        I believe they are now up to the great grandchildren managing the 100+ copyrights across 35+ languages, including English. The family famously repressed publication of certain of their father’s/ grandfather’s/ great grandfather’s works. For instance the red book, claimed by some to be Jung’s greatest work about his own life accompanied by his paintings, claimed by others to be proof he suffered a breakdown, was only released I think about 5 years ago. Jung died in 1961.

        The dynamics of families [and I suppose corporations] that hold copyrights are interesting. It appears that the great grands in some family matrixes, have not as much desire to ‘protect’ the rep of their forebear –as did the children and grandchildren of that person. It would appear in the instance of jung, the families eventually move more toward what keeps the work alive, rather than protecting at all costs, gran pere

        It would be interesting to know what U of Calif has done with the first book of Carlos Casteñada’s, which bore the U of C copyright, as has been usual [I think it was pub’d somewhere in the 70s perhaps and became over the years a money mule for u of c] at uni presses [For ten years Ive taught professors their copyright advantages in indie publishing. Many of the uni presses, through which we are also published, hate me for telling their ‘talent’ they have far more choices than u press which takes copyright in perpetuity. ]

        Thanks for the story on Milton. That’s interesting. Also British law is so often different than usa laws about many things both domestic, regarding families, works, etc. Our family ranges across both borders and its often amazing to me what is required differently by law, say in family law for instance…

        THanks Nate

    • Art is another story

      It most certainly is not. Literature is one of the arts.

      It’s the same story.

      • actually not in hard goods Nathan. Selling paintings that often accrue in value, is different than selling a book.
        Very different including papers of legal provenance, and much more for paintings, sculpture through ethical galleries.

        I used art as in painting, sculpture and other objects, not art as in ‘the liberal arts’ or as in the generic idea of art.

        • Then the analogy is flawed.

          Copyright on literature is the right to make copies. Copyright for paintings or sculptures likewise entail the same right.

          I can buy a print of a Thomas Kinkade or a Van Gogh easily. But it’s copyright law that controls who has the right to make (or decide not to make) such copies.

          The original object itself (much like an original manuscript) is completely incidental. It may or may not be valuable, but mere possession grants no copyright at all.

          • Nathan, Im going to leave it here, for your comments are not what Im thinking …

            Running a successful fine art gallery of high end works, including parlaying legal terms on copyright and provenance, and we are successful publishers who negotiate many different kinds of rights, the terms of managing of rights legally and practically cover the same set of extensive rights, you are correct.

            However paintings and sculptures are a different cat than books in practical terms, starting in terms of very high prices and terms of use for a repro right for say giclées of fine paintings by a corp or private party, huge amounts for those who want a one-time repro right in ads portraying their brand… repro rights almost never include the making of additional paintings that are ‘same’ as original. Except for the
            Chinese factory painters who steal lol, and sell their ‘repros’ as “authentic copies” of say Lucien Freud’s works or Bansky, or Basquiat. [ I know of van Gogh, but dont know of the person you mentioned named Thomas Kinkade]

            Re scuplture, reproducing same of the #1to X of 100 or less,
            one-time edition that most fine sculptors use to number their works,
            there is no right usually given for repro, for the collectors of that person’s work would see a ‘new edition’ as diminishing their interests. No, books, lol are never going to ride in those ways.

            Two completely different processes of who, what, how long, where, and why, and how… paintings, prints, sculpture and more are often far more guarded than simple copyright interests in books that can be repro’d in the millions, on cr stock that yellows in a fortnight, that is a toss
            away in many genres even re original ms, unless one
            is very well known. I think the original ms that made up the facsimile edition of the wasteland, if sold, prob went for a huge amount of money

  3. When I was editing a corporate technical publication, the legal department reviewed everything we published. They had complete veto power. The IP lawyer assigned to our publication told me that as far as he was concerned, fair use did not exist. He wanted written permission on every quote, no matter how short. He wanted permission for paraphrases and comments on anything we did not originate from within the company.

    His reason: a Fortune 500 corporation has deep pockets, which he believed made us a target for lawsuits, and fair use interpretation is unpredictable, especially when a “David and Goliath” scenario could be drawn. The cost of defending the corporation was high enough that he felt he would be forced to settle on almost any infringement claim. Therefore, he insisted on preemptive permissions for everything.

    Collecting those permissions was a pain, but, in the end, I had to admit it made sense, and, whether it made sense or not, there is no arguing with legal. As an independent author, my pockets are far from deep, but I still regard our IP lawyer’s advice as prudent.

    The good part is that asking for permission when not strictly necessary often flatters other authors and makes friends of a kind no one can have too many of.

    • “The good part is that asking for permission when not strictly necessary often flatters other authors and makes friends of a kind no one can have too many of.”

      So true Democritus. We did an anthology of poetry to help support persons struggling with serious health challenges. Gaining permissions to quote lines which might have flown under fair use, [and whole poems which definitely needed permission from authors,] was like separating the peppercorns from a huge pile of dirt. We followed the legal line to the letter. And made many friends in the process with truly decent, humor filled, and serious people.

      There is always one… is a saying in our family. And in collecting permissions from poets, there was at least one who demanded huge amount of money and was as we say ‘very exciting’ to deal with, meaning made us all hum tormento corridos under our breath. Meaning really hard to deal with as they attack when they say hello, lol. But it all worked out. The hardest part was being persistent as getting creatives to respond to mundane requests is sometimes like trying to lure cats to the river.

      THanks for that sidebar Democritus about making friends. It is truly true.

      “The good part is that asking for permission when not strictly necessary often flatters other authors and makes friends of a kind no one can have too many of.”

  4. Terrence wrote:
    “I suspect many authors are just as interested in copyright as the mouse. Without the mouse, those authors would still have the same motivations and interests.”

    Yes, but they would not have the resources to bribe Congress into extending the copyright term.

    Disney does.

    • In that case, Thank God for the mouse. May he live long and prosper, because the people who want to make money from what someone else has created do have the money.

      • LOL

        It took me while but I finally grasp your sense of humor.

      • You mean like those wicked profiteers at Project Gutenberg?

        • We could shorten the copyright span to X years. Then at X years, Amazon simply keeps the 70% for themselves, and doesn’t let anyone else post the book. The corporate guys seem to have an advantage.

          • “Amazon simply keeps the 70% for themselves, and doesn’t let anyone else post the book.”

            I love your shitposting. it is such obvious nonsense that the humor is inescapable.

            • In these days of mega-corporations, what’s the other side of the story then? I think it could happen. I think an asteroid or meteor could hit the Earth and destroy it too, and although it’s far-fetched that it’ll happen tomorrow, we kind of have to face the fact that these things might actually happen. They’re not impossibilities. So why give up individual rights for the benefit of those who don’t need to benefit? Individuals can sell copyright if they want and that’s their right, but to have it stripped from them? I’m just not a fan of that option. Not at all.

              • “So why give up individual rights for the benefit of those who don’t need to benefit?”

                Society doesn’t _need_ to benefit? Really? That’s your argument?

                See, the discussion of copyright is so twisted now that many are simply reflexively arguing to maintain the status quo. They have forgotten that copyright does not exist for the benefit of creators. Copyright exists to benefit society, “to promote the Progress of Science and useful Arts”.

                Y’all are so focused on companies that you’ve missed the point that society benefits when copyright expires. We all get to use a work once the monopoly expires. And that includes you. If you have ever used a trope or incorporated an existing fairy tale into a work, then you have gained from some creator “having it stripped from them”.

                • There’s only so much you can give to society without getting something back. There’s a point where it’s not worth it. A person can often live a much better life doing any number of things besides spend a bunch of time distilling ideas into written form. If copyright is stripped too soon, who’ll want to bother? I wouldn’t. It’s too big a gamble. Big gambles need big payoffs to make them attractive. Short copyright terms make the gamble much less attractive. It just takes too long for most people to see benefits from their copyrights for it to make sense for copyrights to be short. Knowing my kids might be better off than me because of what I’m doing now even if maybe I won’t see much of that benefit? Yeah, that does make a difference. Cut off copyright terms so that it’s 20-40 years and that motivation is gone. This is where I’m coming from, and it’s not an unthinking, reactive position.

                • If you have ever used a trope or incorporated an existing fairy tale into a work, then you have gained from some creator “having it stripped from them”.

                  Follow the money. It leads to an author trying to make money from what someone else created, and telling us he’s doing it for the common good.

                • Follow the money. It leads to an author trying to make money from what someone else created, and telling us he’s doing it for the common good.

                  including Shakespeare (that rat bastard):
                  https://blogs.library.duke.edu/scholcomm/2011/02/18/shakespeare-and-copyright/

                • more reflexive defense of the status quo *sigh*

                  Cut off copyright terms so that it’s 20-40 years and that motivation is gone.

                  The whole “no one will create without copyright” argument is utter bollocks. Shakespeare didn’t have any copyright and yet he wrote dozens of plays, and the same goes for many thousands of creators across several millennia before copyright, and the many millions of wits who say funny stuff online just because it’s fun.

                  Also, for most of Mark Twain’s life the copyright term in the US was 28 years. Somehow that didn’t discourage him from writing a few dozen novels. So no, I don’t find your argument plausible.

                • Copyright isn’t necessary for some level of creation to exist. Somebody will indeed create. It is an incentive to move beyond that level.

                  Someone will create without copyright, but how many?

                  Show of hands. If there was no copyright, and Amazon, Kobo, Microsoft, or AliBaba could just sell the book and keep all the revenue, who would keep writing stuff and making it widely available?

        • Those swindlers!

  5. Congress has helpfully provided a way of determining whether something is or is not covered by the fair use exception

    Congress? I thought that was Judge Story in Folsom v. Marsh, 9. F.Cas. 342, but Congress later did codify his decision.

    I don’t recall. The Fed Circuit handles all patent appeals. Do they handle all copyright appeals, too?

  6. Its odd but I kind of wish I could live to see my copyrights expire. I feel that books and stories are kept alive and culturally relevant by being reimagined and retold by each passing generation. For example Sherlock Holmes is loved by millions who may never read the original books because creators over the years have had the ability to retell his story freely.

    Where as The Dragon Riders of Pern (just off the top of my head) or other books that resonated with me over the years are out of reach for most writers and artists. There is fan fiction/art of course but its reach is limited and sometimes the artists involved get squashed.

    I would love to see what people would do with my stories. To know they were being kept alive.

    • For what it’s worth, copyright is structured in contract law. You control the terms of your copyright. If you want to license the use, modification, and distribution of your work to something like one of the many Creative Commons licenses after a fixed number of years, you are well within your rights to do so.

  7. For me, it’s all a matter of balance. Two hypothetical extremes are a world where copyright is held by heirs and assignees in perpetuity and a world in which every kind of plagiarism and copying is permitted, even lauded. Which would be better?

    For me, neither sounds enticing. If an author has no special right to his work, the profits go to the publishers and promoters, not the creators. In that world, some people would continue to write, I probably would, but with no hope of giving up their day job unless they were willing to devote more effort to business than creation. If copyright never expires, I expect authors would have a hard time because the culture of reading would become a narrow pay-to-play venture with all the wrong participants.

    Is the status quo perfect? Naw. But is it so bad, that it is worth the effort to change? Maybe for somebody who likes that sort of thing. I can’t get worked up about it.

    • If copyright never expires, I expect authors would have a hard time because the culture of reading would become a narrow pay-to-play venture with all the wrong participants.

      Reading is a pay-to-play game right now, but it’s not at all narrow. We pay money to Amazon or B&N, and then we read. Intellectual property rights were necessary to secure the investment in publishing and distribution that spread books around the world.

      Many more people than authors are necessary to maintain the widespread selection and availability we have today. Authors are necessary, but not sufficient. Without a return on investment secured by IP rights, those people will go do something else.

    • “I can’t get worked up about it.”

      Agree Democritus… and it interests me when people have actual experience and speak from that. Thanks for that.

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