Category: Copyright

Fair Use Isn’t “Dare Use”

LTG YT

Don’t fall for fair-use daredevil tactics. You might get hurt.

I know Fair Use Week is technically over, but when I saw this video produced by Public Knowledge, I couldn’t, y’know…let it go.

Remember how I’ve argued a few times that organizations have a habit of promoting fair use messages that can confuse people and potentially get well-meaning creators into legal trouble? Well, kids, with regard to the snarky video Public Knowledge released last week, all I can say is, don’t try this at home. Because their fair use argument is technically pretty weak, and I wouldn’t follow their lead unless you feel like poking a phalanx of lawyers with a stick.

So, what Public Knowledge did was have a guy named Charles Duan write anti-copyright lyrics on the theme “Let ‘em Go” set to the tune “Let It Go” from Disney’s movie Frozen. Vocalist Courtney Duffy, with all the earnestness she could muster, sings lyrics like “But companies with cash and greed, Choke the public domain these artists need.” Ouch.

Anyway, the video itself is a montage of clips from Disney animated films, home-movie footage of people dressed as Disney characters, and a variety of creative expressions both directly and indirectly trying to make a point about copyright. The message, as usual, is muddled. PK is provoking Disney because of the trope that the company is directly responsible for the last extension of copyright terms—not actually true—but the video is also trying to be a lesson in fair use, presuming to prove its point by brazenly making use of works belonging to one of the most famously protective companies in the world. (Oh, and a shot of Holden, the “dancing baby” in Lenz is thrown in for good measure.)

Never mind that any number of the depicted “uses” would not implicate copyright (or consequently fair use), but on the subject of copyright terms, the message is weakened by the fact that PK depicts a number of works, like clips from Frozen, whose copyrights would not have expired even if terms were dramatically shorter. Of course, the folks at PK never let pesky details get in the way of a well-entrenched conceit.

Personally, I don’t get everyone’s obsession with the Mouse, and it would be nearly impossible to count all of the creative works that have been produced concurrent with Mickey’s long tenure as an IP-protected icon, but whatever. No doubt there’s an artist somewhere, languishing in a lonely garrett, rendered mute because he cannot fulfill his Mickey Mouse vision.

The Song Is Not Fair Use

The big thing that jumped out at me about this video, though, is that PK’s use of the song in this case would likely not do very well under a fair use test if Disney were to sue the organization. The song may be covered by a blanket license for use on YouTube,* which would be an amusing irony, given the posture of “civil disobedience” PK presumes to be striking here. But if that were not the case, and if Disney wanted to take action, I think Public Knowledge would fail in a fair use defense for its use of “Let It Go” in this video.

As mentioned in an older post, a fair use of a song in the way PK used it here protects parody, meaning that the new use must in some way comment on the original work. Fair use as parody does not protect the use of a song with new lyrics written to express something that is entirely separate from the meaning or spirit of the original work. As noted in this post about the Westboro Baptists writing and recording anti-semitic lyrics to McCartney’s “Hey Jude,” such uses can have very negative effects and even infringe the speech rights of the authors. As we saw in regard to the settlement in GoldieBlox’s use of a Beastie Boys song, the fair use defense does not generally support a use like the one PK made for this video.

The song “Let It Go” is about a young woman breaking out of her frozen shell to become her true self, so I think PK would receive a pretty frosty, judicial response if they tried to argue that their anti-copyright lyrics meet the definition of parody. If Disney were to sue Public Knowledge, I believe the use of the song in this case would fail on the first, second, and third factors of the fair use test. Specifically, PK’s desire to comment upon The Disney Company via its use of “Let It Go” would likely invoke a citation of the 2009 case Salinger v Colting in which the defendant’s authorship of an unauthorized sequel to The Catcher in the Rye was not held to be a fair use on the basis that it was expressing a comment upon J.D. Salinger himself. From the opinion:

“While the addition of Salinger as a character in 60 Years is indeed novel, the Court is unconvinced by Defendants’ attempts to shoehorn Defendants’ commentary and criticism of Salinger into the parodic framework of Campbell,** which requires critique or commentary of the work.”

For all their smugness, Public Knowledge is more likely protected either by license between Disney and YouTube or by PR (i.e. Disney may decide it isn’t worth the press fight); but the fair use defense here kinda blows. And that’s why I say these organizations are not doing the public any favors when they produce this kind of propaganda. They can get well-intentioned creators into trouble by evangelizing a general understanding of a legal doctrine that demands a more nuanced consideration. Maybe, Public Knowledge should heed an apropos line by comedian Ron White: “The next time you have a thought, let it go.”

*ADDENDUM:  Thanks to the comment from artandcreativesite, which reminds us that even with such a license to use a song, complete revision of the original lyrics still infringes the rights holder’s exclusive right to create derivative works.

**Campbell v Acuff-Rose, a landmark case in which 2 Live Crew’s use of Roy Orbison’s “Oh, Pretty Woman” was held to be  fair use as a parody.

ReDigi, Fair Use, and Libraries

Photo by author.

In my last post, I opined that the fair use interests of librarians and educators are not necessarily aligned with for-profit business ventures seeking to exploit creative works in ways that can harm authors.  For instance, in the case of Capitol Records v ReDigi, now on appeal at the Second Circuit,  Jonathan Band filed an amicus brief on behalf of the American Library Association, the Association of College and Research Libraries, the Association of Research Libraries, and the Internet Archive in favor of a reversal of the district court opinion, which held that ReDigi is infringing.

To the casual observer, ReDigi is a service that acts as a middle-man to broker the sale of “used” MP3 files.  The idea is that, when you decide you’ve listened to your iTunes-purchased copy of Meat Loaf’s “Bat Out of Hell”* for the last time and think somebody else might want it,  you can sell the MP3 files via ReDigi as “used” items for a portion of the original price, with a cut going to ReDigi.  From a legal standpoint, however, ReDigi is a somewhat complex, computer-to-computer model hoping to avail itself of a copyright limitation written for a purely physical world.

To the best of my knowledge, the ReDigi model has changed a couple of times, but the way the system works is that the MP3 files being offered for sale are removed from the seller’s devices and copied onto the ReDigi server from which the seller alone may still listen to the tracks until they are purchased by someone else.  Upon sale, the files are removed from the server and copied again onto a device belonging to the purchaser. Naturally, this sounds attractive to many consumers, and ReDigi seems to have made an effort to ensure, to the best of its ability, that only one owner at a time has the files.  But that doesn’t necessarily make the service legal, or even a good idea in the market.

The district court held that ReDigi infringes the plaintiff’s rights of reproduction and distribution. ReDigi’s defenses that it is non-infringing were based on the first sale doctrine and fair use; and it is with regard to the fair use defense that the libraries apparently see a common interest.

Band’s amicus brief argues that a finding of fair use in ReDigi would set a precedent that furthers the interest of libraries to develop new models for digital-age lending and other services. And this is where I personally see a necessary distinction between the interests of libraries—which sometimes receive specific carve-outs in copyright law—and avoiding the particular harms caused by a ReDigi model, which could very easily be an Amazon-scale service overnight.

Digital First Sale Creates an Artificially Deflated Market

The first sale doctrine (Section 109(a) of the copyright law) is the reason you are allowed to sell your individual copies of books, CDs, DVDs, etc. as used items without infringing the copyright interest of the authors.  Its predicate is a case from 1908, long before anyone could possibly imagine “owning” entertainment media in the form of data that is not exclusively bound by a physical object like paper or a disk.   ReDigi argued that the first sale doctrine makes its business non-infringing, but the court disagreed on statutory grounds—namely that the language “plainly applies to the lawful owner’s ‘particular’ phonorecord, a phonorecord that by definition cannot be uploaded and sold on ReDigi’s website.”

As a technical matter, ReDigi has to make a copy of the files from the “seller’s” computer to ReDigi’s server. That copy is already an infringement of the rights holders’ exclusive right of reproduction, and that copying is not protected by first sale doctrine.  But even if one wishes to argue that this is a mere technicality, there is still ample reason not to apply first sale doctrine in a purely digital market.

The District Court stated that if ReDigi seeks amendment  to the Copyright Act to satisfy its interpretation of first sale, that this is job of Congress and not the courts. On that subject, Congress has reviewed first sale doctrine as part of its comprehensive review of the Copyright Act. (In fact, I sat on a panel in 2014 hosted by the USPTO discussing this very issue.) And the Department of Commerce examined the subject of digital first sale and concluded that the principle did not apply to digital transmissions and that there is no evidence warranting any change to existing law.

I advocate against digital first sale for the simple reason that digital files cannot be “used” according to any rational definition of that term.  Since 1908, the distinction between the used, secondary market for these goods and the primary market has been clear, with the former posing no threat to the latter.  Even in cases in which used items appreciate in value (e.g. rare books), I would argue this will only ever apply to physical goods and not to raw data that may be endlessly copied from device to device. (A signed, first edition Yeats is worth a couple grand; an eBook containing the same written material is free.)

Because a “used” digital file is as pristine as a “new” digital file, a service operating at scale like a ReDigi (or an Amazon) would simply create a new primary (or alternative) market that artificially degrades pricing for digital-only works.  Regardless of the fact that some consumers feel that any price above zero is a “rip off,” the reality is that we pay comparatively low prices for the media we store today, and even lower prices for media we access through subscription or ad-funded models.  If anything, Congress should reaffirm that first sale applies solely to physically-bound, legally acquired, copies of works.

ReDigi’s Fair Use Argument and the Libraries’ Interests

Apparently unconcerned with the potential harms of a ReDigi model in the consumer market, the above-named library organization would like the appeals court to find that ReDigi’s service is a fair use under the first prong of the fair use test:  1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit purposes.

Initially, ReDigi sought to defend its position as a cloud service—that users have a fair use right to store their files in the cloud; and Capitol did not dispute this part of the argument.  But the fact that this storage was “incident to sale” of the works meant that ReDigi’s service falls “outside the ambit of fair use.”  The district court agreed.  Moreover, the court held that ReDigi’s use was not “transformative” because its service does not add anything to the works and that the commercial nature of the use tilted away from a finding of fair use.  The other three prongs of the fair use test do not favor ReDigi, particularly the fourth, given that their use can clearly cause market harm to the rights holders.

In his brief, Jonathan Band takes a curious position that the lower court failed to understand how ReDigi is protected by first sale doctrine and that a reversal of this reasoning would support a finding of fair use.  He writes …

“The district court overlooked the obvious fact that the use ReDigi sought to enable was analogous to one permitted by a central feature of the Copyright Act: the first sale right, codified at 17 U.S.C. § 109(a). The district court found that ReDigi’s uses did not fall within the scope of section 109(a) because the first sale doctrine is a limitation on the distribution right, not the reproduction right, and ReDigi’s service involves reproduction. However, the similarity between ReDigi’s service and conduct permitted under section 109(a) should have weighed in ReDigi’s favor under the first fair use factor.”

Going back to what first sale allows—namely that you are free to sell that “Bat Out of Hell” CD at a yard sale—fair use doesn’t enter the picture at all. Your right to sell your particular copy of a book or album is not a use of a copyrighted work that in any way implicates a fair use defense.  So, even if these petitioners could persuade the court that it is sufficient that ReDigi is “analogous” to the application of the first sale principle, it is hard to imagine how this favors a finding of fair use, which is supposedly the real interest among these librarians.

My read is that the argument Band presents seems over-broad—a hope that a finding of fair use in ReDigi will open a wider door for libraries to develop new means to fulfill their missions in a digital world.  In this sense, Band appeals to the Google Books case, in which Google Books prevailed on fair use analysis to the benefit of library interests. But without writing another thousand words, suffice to say that Google Books is nothing like ReDigi.  Google Books does not engage in commercial transactions, it does not make whole works available, and it provides services that are either “transformative” (e.g. full-text search) or fair use prima-facie (making works available to the print-disabled).

A finding of fair use in ReDigi may generically support the interests of libraries (or it may not), but it seems a high price to pay to allow a harmful, for-profit company to vitiate fundamental copyright protections. As implied, this paves the way for a massive organization like Amazon to decimate what remains of the primary market for sales of creative works.  I believe these matters should be viewed separately, with libraries and universities pursuing their own interests in context to copyright law rather than riding the coattails of predatory and opportunistic business ventures.

*Nothing personal, Meat Loaf. First album that came to mind.

Celebrate fair use, but don’t misunderstand it.

fair use

Not that copyright stories should hope to compete with the drama coming out of Washington these days, but it’s more than likely that copyright policy and news will now be viewed through that multi-faceted, jittery lens; and the political climate certainly provides new context for creating freshly distorted views on various topics.

For instance, today begins the 4th Annual Fair Use Week, a celebration of the fair use doctrine in copyright law; and I will not be surprised if various organizations and individuals seize upon what I’ll call our current reality crisis in order to remind us of the many ways—reportage, education, parody, commentary, scholarship—that the fair use principle enables creators to speak truth to power.

In recent weeks, the nation’s university and public librarians have stood shoulder-to-shoulder to form a bulwark against the plague of fake news and gross distortions by elected officials, and I certainly share a solidarity with that effort. But while it is true that many important creative and informative expressions are indeed supported by the fair use principle, it is also necessary that my librarian friends in particular (yeah, I have librarian friends) recognize that some of their allies in this celebration sometimes promote fair use messages and agendas that get a little alternative-factsy themselves. Add to this any number of casual references in blogs, articles, or editorials that describe uses of works as “fair” when they don’t implicate the doctrine at all, and it’s worth remembering that fair use bell-ringing also celebrates a fair amount of confusion about copyright law.

There is value, of course, in highlighting examples of expressions that have relied on fair use; it is one aspect of celebrating free speech. But in the digital age, invoking the principle has taken on a distinctly anti-copyright connotation, which is functionally absurd and often misleading in ways that can actually get independent creators into unnecessary legal trouble. (See posts here, here, and here.) Fair use does not exist without copyrighted works to use in the first place, and the fact that countless fair uses produce new works which may then be separately copyrighted ought to provide a framework for understanding fair use as a component of copyright law, baked into the federal statute since 1976.

At the same time, no serious copyright advocate is opposed to the fair use doctrine since it is in the interest of all authors, big and small, to have the opportunity to make fair uses at various times in their creative endeavors. In particular, it’s counterintuitive that fair use is often portrayed as anathema to the interests of the large rights holders—the big studios, publishers, and labels—when it is these mass producers who tend to rely heavily on both fair use and the idea/expression distinction in copyright in order to produce and distribute in great volume without chronic litigation.

I get why librarians and universities celebrate fair use and that they have their own tussles with copyright law. These views deserve consideration given the sincere, public-serving intent of most librarians and educators. But those discussions are not always allied with the interests of venture capitalists betting on various tech companies whose models require the exploitation of creative and informative works without the cost of licensing.

The Fair Use Narrative in Current Caselaw

Behind the PR messages aimed at the general public is a more subtle and complex story playing out in various cases, revealing a consistent effort to strain the intent of the fair use doctrine until some precedent-setting case can weaken, or even nullify copyright protection altogether. In fact, the narrative of the copyright “debate” today is partly driven by predatory and wealthy tech enterprises, seeking to exploit every weakness in a legal framework that never anticipated the scale, volume, or diversity of infringement that would become possible in the digital market.

Often these enterprises have no public-serving component whatsoever, as they seek—with the aid of “digital rights” groups like the EFF—novel interpretations of the fair use test that strain the expression-based intent of the principle. For instance, the site fairuseweek.org, with its many academic signatories—including my alma mater—features an infographic highlighting a business called TVEyes as one example of the doctrine at work. I sincerely doubt, though, that many of those academics and librarians have any idea what TVEyes actually does or if they know the status of the Fox v TVEyes case.

TVEyes is an expensive, subscription-only, B2B, news-monitoring service that operates by making copyrighted works available without licensing, and if its particular fair use claims are upheld, the precedent could be used to nullify authors’ rights, allowing nearly any technology company to freely exploit works for almost any purpose. That’s not what fair use was meant to enable. As a side note, oral arguments are scheduled for March 7 at the Second Circuit Court of Appeals; so at the very least, in the interest of accuracy, it might be better to delay citing TVEyes as an “example of fair use” until the case is settled.

By all means, we should celebrate fair use with the understanding that the principle was relatively complicated before the digital age and is far more complicated today. This complexity is both generalized in the PR messages influencing perceptions among general users and independent creators; and this complexity is highly specialized in much of the current caselaw as the courts seek to consider fair use in the context of large-scale technological uses, rather than in the more traditional author-to-author uses for which the principle was codified into law.