Saturday, November 04, 2006

Of the case for fair use: digital distribution of course materials -- Introduction

I've been working on, struggling with, a paper on the fair use argument for electronic reserves and digital distribution of reading materials (and other materials) in course management systems like Blackboard. I want to experiment with collaborative authoring in a scholarly context, so I'm going to work with the text here, inviting comments and suggestions. I've already solicited comments privately, as is the norm in academe, but I'm still concerned about the argument, the reasoning, the factual predicates, and most of all, the conclusion I reach. So if it's not working, what better opportunity to try a new approach. Further, like other authors today, I am excited about the possibilities in collaborative authoring, and networked texts. I want to see how it works. What better way?

Here's the opening from the paper. I'll add other segments over the next couple of weeks as I see how this goes.

Many perceive fair use as less “useful” today than it was in the past. Publishers deem reliance on it as too risky. All it stands for is a right to litigate the question of whether the use is fair. To be safe, one must ask for permission even if the use might well be fair. Ultimately, the “permission culture” actually diminishes the value of fair use, though no change has taken place in the wording of the statute.

Some creators are resisting this trend, urging within their industries a return to reasonable reliance on fair use.[1] And educators and librarians who encourage access to and creative use of the works of others in general understand the importance of fair use and want to maintain its scope. Of course they can and do defend fair use in many fora, but in the courts, fair use seems to be losing ground in certain contexts. What’s happening to fair use, and what can be done to turn things around?

First, it is necessary to distinguish different functions for fair use, because all fair uses are not uniformly in trouble. Creative fair uses, those that use another author’s expression in a critique, a parody, artistic expression or news reporting and similar uses that build upon existing works in new ways, can be threatened by the general trend towards expanded owners’ rights,[2] but these types of uses still receive solid support from the courts today.[3] As the references cited in footnote two indicate, many scholars vigorously defend this transformational aspect of fair use. And as cited in footnote one, at least one entire industry is advancing the notion that permission for every creative use actually works against the creation of new works. Fair use for creative, transformational uses is not faring so badly then.

On the other hand, uses that reproduce an author’s work in order to make an exact copy, perhaps to conveniently use that copy at a later time or in another format or to give the copy to others (I will refer to these copies as “iterative uses”) are under relentless attack. Few seem eager to defend these uses in court anymore after a series of high-profile courtroom defeats.[4] This article focuses on these iterative uses, not on creative, transformational uses. In particular, it focuses on the digital distribution of educational materials to students through course management systems and library electronic reserves (“Electronic Distribution”). Only at its end does the article consider whether threats to iterative fair uses may affect creative expression that relies on core fair use. The reader is urged to keep the distinction between iterative uses and core creative, transformational uses in mind throughout the article.

[1] Cite to Fair Use Principles for Documentary Filmmaking and Duke University’s Bound by Law.

[2] See Illegal Art,; Siva Vaidhyanathan, Copyrights and Copywrongs, The Rise of Intellectual Property and How It Threatens Creativity, New York University Press 2001; Lawrence Lessig, Free Culture, How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, The Penguin Press 2004; Jessica Litman, Digital Copyright, Prometheus Books 2001; James Boyle, Software, Shamans and Spleens, Law and the Construction of the Information Society, Harvard University Press 1996; Eldred v. Ashcroft, 537 U.S. 186 (2003) affirming Congress’s power to lengthen copyright terms by 20 years retrospectively.

[3] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); Sun Trust Bank v. Houghton Mifflin Co., 252 F. 3d 1165 (11th Cir. 2001); Lee v. Art Co., 125 F. 3d 580 CA 7 (Ill.) (1997); Kelly v. Arriba Soft; Field v. Google; Bill Graham Archives. These cases show that parody, derivative works, copying to create a searchable image index on the Web, caching copies to aid Web search, and using small versions of larger poster images to illustrate a timeline can be fair use.

[4] Basic Books, Inc. v. Kinko's Graphics Corporation, 758 F. Supp. 1522 (S.D. N.Y. 1991) (commercial coursepacks); American Geophysical Union v. Texaco, Inc., 60 F.3d (2d Cir. 1995) (Texaco’s research copies); Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996) (en banc) (commercial coursepacks).


Anonymous said...

I'm not sure if you're aware of the irony of citing BlackBoard as a platform for collaborative fair use of copyrighted materials: BlackBoard is the basis for several incredibly broad patents that are being used to stifle innovation in the e-learning field. If you're trying to fight for collaboration and openness, you should avoid supporting a company that has such a terrible track record of fighting against those same things.

Anonymous said...

17 U.S.C. 107(1) (first fair use factor is "the purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit educational purposes"); Eric D. Brandfonbrener, Fair Use and University Photocopying... 19 U. Mich. J.L. Reform 669, 684 (1986) ("Although unwilling to grant educators a blanket exemption, Congress perceived the chilling effect that uncertainty would have upon the educational use of photocopies. Thus, a major purpose of the Act was to provide educators and scholars with 'greater certainty and protection' in the area of photocopying. To this end, Congress provided special treatment for educators and scholars in the Act's damages provisions. Congress also modified the Act's fair use provision expressly in response to the needs of educators and scholars. To provide them with greater certainty, copying copyrighted works for the purpose of 'teaching (including multiple copies for classroom use), scholarship, or research' was added to section 107 as an example of a fair use. Section 107's balancing test was also amended to favor educational users. Congress modified the first factor -- the purpose and character of the use -- to include a determination of use as either commercial or non-profit educational."); Castle Rock Entm't, Inc. v. Carol Publ'g Group, 150 F.3d 132, 141 (2d Cir. 1998) ("The ultimate test of fair use . . . is whether the copyright law's goal of promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it."); id. at 146 n.11. ("[C]opyright owners may not preempt exploitation of transformative markets . . . ."); Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991) ("The primary objective of copyright is not to reward
the labor of authors, but "to promote the Progress of Science and useful Arts."); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 585 n.18 (1994) ("being denied permission to use [or pay license fees for] a work does not weigh against a finding of fair use"); Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 1174
(1994) ("If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities are generally conducted for profit in this country."); Mazer v. Stein, 347 U.S. 201, 219 (1959) ("The copyright law
. . . makes reward to the owner a secondary consideration."); Berlin v. E.C. Publications, Inc., 329 F.2d 541, 544 (2d Cir. 1964) ("[C]ourts in passing upon particular claims of infringement must occasionally subordinate the copyright holder's interest in a maximum financial return to the greater public interest in the development of art, science and industry."), cert. denied, 379 U.S. 822 (1964); Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 930 n.17 (2d Cir. 1994) ("were a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth fair use factor would always favor the copyright holder."); Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1124 (1990) ("By definition every fair use involves some loss of royalty revenue because the secondary user has
not paid royalties"); 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05[A][4] (2005) ("it is a given in every fair use case that plaintiff suffers a loss of a potential market if that potential is defined as the theoretical market for licensing the very use at bar"); Nimmer on Copyright 13.05[A], at 13-102.57 (1993) ("Copyright protection is narrower, and the corresponding application of fair use defense greater, in the case of factual works than in the case of works of fiction or fantasy.");