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

Electronic Distribution and Fair Use

I taught copyright law at my university’s information science school for several years and found that nearly everything I wanted to use to teach my classes was either available online for free or licensed by my library for my students’ use. But if materials I wanted to use were not readily available, could I have placed copies on electronic reserve through my library or posted them within my password-protected course Web site without the copyright owner’s permission? In particular, could I have assigned the same articles and book chapters over successive semesters without obtaining permission and paying fees? This is the central question of this paper: is this practice fair use? In the U.S., only nine people know the answer, but until they make their pronouncement, we do our best to answer the question ourselves by trying to predict what a court (perhaps even the Supreme Court) would say. We use the same tools a court would use to make its judgment: the fair use statute and the fair use guidelines. So, the central question becomes: Would a court likely agree that this practice is fair use?

If I were to consult the various fair use guidelines that likely bear on this subject, I would find that repeated use is not characterized as fair because it violates the concept of spontaneity. The idea expressed in spontaneous fair use is that if I do not have time to get permission, the use is fair.[1] Conversely, if I do have time to get permission, the use is not fair. The collaboration between Blackboard and the Copyright Clearance Center (CCC) to facilitate instant permissions for the entire CCC catalog throws the spontaneous “first-time use” element of the guidelines into question. Are there no fair uses of any materials that CCC licenses now? Is that how it works?

While these are interesting questions, whatever the guidelines ultimately suggest about the scope of fair use, they are not the law; I am entitled to rely on the fair use statute.[2] I believe I can articulate a rational description of my use under the four fair use factors that would support the conclusion that the use is fair. In other words, I can describe the actions I want to take in such a way that the balance among the four factors will tip in favor of fair use. I am just not very confident that in today’s climate I could get a court to agree with me. Courts have rejected arguments like those I would make. In fact, my arguments tend to show up, if at all, in the dissents. Publishers have racked up an impressive string of victories in their effort to trim fair use’s sails in this second, iterative category of copying.[3]

I might try to shore up my argument by pointing out the traditional acceptance of educational uses or predict dire consequences for education if the courts further strengthen copyright protection by limiting the scope of fair uses in this context. But, there is nothing sacred about tradition, and predictions of gloom and doom do not actually prove anything, so they are not likely to persuade, especially in support of fair use rights. The winning and losing arguments in recent court cases, as well as legislation, show a pattern, however: our legislators and judges generally seem to embrace a vision of copyright that inexorably increases protection and shrinks limitations over time based on a premise that copyright owners are entitled to reap every benefit that might possibly result from use of their rights and therefore that more protection is always better.[4] Obtaining the opposite result would probably require a different premise, one that recognized that the relationship between the level of protection and the achievement of copyright’s goals is not linear, but the “more protection is better” premise seems to be the only one that succeeds today when iterative uses are evaluated.

The threat to fair use is thus symptomatic of a much larger trend in copyright law. The term of protection is growing longer; the scope of other exceptions such as first sale is growing smaller;[5] copyright owners are turning to technological protections buttressed by anti-circumvention law[6] and contracts to further strengthen their rights. There are many explanations for the upward trend in the scope of copyright protection. Paul Goldstein suggests that it is nothing more than an age-old struggle between those who believe the creator of a work is entitled to ownership of it as a natural right and those who believe the rights of the creator are only those fixed by statute.[7] Mark Lemley illustrates how the analogy to physical property has fostered a belief that users should pay for any benefit they obtain.[8] Others point to the need to strengthen rights because of the increasing difficulty of enforcing them in a digital environment.[9] Jessica Litman chronicles the capture of Congress by the copyright industries and argues that the form the statutes are taking is a logical result of Congress’s having turned over the legislative process to the strongest in the industry.[10] Others point to the publishing and entertainment industries’ efforts to preserve antiquated business models and revenue streams in the face of the uncertainty of the digital future.[11] Regardless of why the upward trend is happening, it is clear that it is happening.

As a result, defending limitations, or putting the brakes on the upward trend, will require some kind of strategic change. Courts must be persuaded to assume different things if they are to come to different conclusions about iterative uses.

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[1] Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals, Published in House Report 94-1476; Electronic Reserves Guidelines developed during the Conference on Fair Use, though without consensus support. Neither of these guidelines describes the actual law of fair use; they are tools of convenience only. Nevertheless, both incorporate a “spontaneity” element suggesting that uses that are repeated need permission after the first time.

[2] 17 U.S.C. 107.

[3] See citations above to Kinko's, Texaco, and Michigan Document Services. The reader is again reminded to recall that this line of thought applies to iterative copies, as these are earlier defined in this paper, not to creative fair uses. This distinction is very important throughout the paper.

[4] Mark Lemley. Property, Intellectual Property and Free Riding. 83 Tex. L. Rev. 1031.

[5] Jessica Litman, Digital Copyright [need exact page references where she discusses the mods to first sale over 20^th century].

[6] 17 U.S.C. 1201, et. seq.

[7] Goldstein, P. (2003). Copyright's highway: from Gutenberg to the celestial jukebox. New York: Hill and Wang. The natural rights framework for conceptualizing copyright does not always seem to take into account that in the U.S., most commercially valuable copyrights are owned by companies, not authors.

[8] Lemley, Free Riding at 1031 – 1032.

[9] Mark A. Lemley & R. Anthony Reese, Reducing Digital Copyright Infringement Without Restricting Innovation, U.C. Berkeley Public Law Research Paper No. 525662; U. of Texas Law, Public Law Research Paper No. 63; U. of Texas Law and Econ. Research Paper No. 025, Stanford Law Review, Vol. 56, June 2004.

[10] Jessica Litman, Digital Copyright, Prometheus Books 2001.

[11] Lawrence Lessig, The Future of Ideas, Random House 2001; Lawrence Lessig, Free Culture, How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, The Penguin Press 2004.