Well, it’s Fair Use Week again. Sixth annual. I suppose one must say something. Though what I really want to say is Why? What exactly happened in 2013 to provoke the idea that we needed this celebration? The fair use doctrine had been part of the federal copyright law for forty years, and its common law precedents began percolating in the mid to late eighteenth century. So, why did this somewhat arcane aspect of copyright doctrine, which very few people have reason to think about, suddenly demand of a week’s worth of attention?
I get why Banned Books Week is a thing. It reiterates the need for vigilance against censorship while celebrating authors whose contributions are so transformative or provocative that somebody somewhere wants to silence them. Notably, it is the free market that so effectively rejects this kind of censorship, and the author’s mechanism of access to that free market is copyright. “The Framers intended copyright to be the engine of free expression,” wrote Justice O’Connor in 1985 in Harper & Row Publishers Inc. v. Nation Enterprises. And indeed it is.
While no one should disagree that the fair use doctrine is necessary to the fulfillment of copyright’s purpose to promote progress and be that engine of free expression, I just cannot fathom the connotation of insurgency expressed in the observance of Fair Use Week—as though the principle were under assault. Of course, eager celebrants might say that fair use is under assault based on a common tactic in politics, which is to first advocate pushing the limits of a principle and then claim that any resistance to, or criticism of, said pushing is tantamount to threatening the principle itself.
You see, concurrent with the sudden urgency to celebrate fair use, there has also been a considerable effort to broaden the nature of the doctrine far beyond its supporting role as a cog (albeit a large cog) in the engine of expression. Publicly, this has taken the form of blog posts and social media commentary that invoke fair use, whether it is actually applicable or not. In the courts, organizations like the Electronic Frontier Foundation, the Computer and Communications Industry Association, and the American Library Association write amicus briefs supporting tech ventures whose fair use defenses overreach so broadly that they would nullify core copyright protections if allowed to stand as precedent.
Fortunately, as some of the more high-profile cases have moved through the process, the courts have lately reaffirmed fair use, tucking it into its proper context—as a conditional defense for certain types of uses and not a vaguely-defined blank check based on emotion and general disdain for copyright. Probably the two most important recent decisions in this regard were in Fox v. TV Eyes and Capitol Records v. ReDigi at the Second Circuit Court of Appeals. In both of these cases, the court re-illustrated essential contours of fair use in a tech-driven market that too-often seeks to conflate generalized “innovation” with the first fair use factor that weighs “transformativeness.”
As explained in detail in older posts, “transformativeness” (an analytical doctrine written by Judge Pierre Leval in 1990) is not terribly confusing in its original purpose to consider a new creative expression that makes some use of a precedent creative expression. Where the doctrine threatens to get out of the barn, however, is in its secondary application as applied in Google Books … “a secondary use may be transformative if it provides information about the original, ‘or expands its utility.’”
That “expands utility” language has provided opportunity for business ventures to come very close to arguing that simply offering a new service is sufficient to warrant fair use of protected works. This rationale has even fostered minor attempts by some parties to claim that merely posting a work on social media is “transformative,” which, if this were true, would annihilate the authors’ right to make a work available (or not), thereby distorting fair use from a limited, legal exception to a talismanic incantation.
Second Circuit Restores Reason to Fair Use
In both TVEyes and ReDigi, the Second Circuit provided essential contours for the “transformativeness” doctrine. In the former, the Court held that the TV monitoring service, regardless of its innovative value to B2B subscribers, infringed copyright by making full programming available to customers. In comparing the utility of TVEyes to that of Google Books, this same court, which decided the latter, stated …
This appeal shares feature with our decision in Authors Guild v. Google,Inc. That case held that Google’s creation of a text-searchable database of millions of books (including books under copyright) was a fair use because Google’s service was “transformative” and because integral features protected the rights of copyright holders. However, we cautioned that case ‘test[ded] the boundaries of fair use.’ We conclude that defendant TVEyes has exceed those bounds.
That the same court found daylight between the fair use defenses of Google Books and TVEyes is of considerable value to rightholders in a market replete with ventures seeking new ways to exploit copyrighted works without license. Authors of works have a hard enough time navigating a landscape of legal (Spotify) and semi-legal (YouTube) platforms that have decimated the monetary value of their creative products without also having fair use expanded into a generalized, amorphous license to steal.
Perhaps future legal experts will find that the most important decision came in the ReDigi case, denying the fair use defense of this business, which sought to create and exploit a market for “used” digital music files. One reason this decision my be seen as a landmark is that Judge Leval himself wrote the opinion and added further nuance to his own “transformative” doctrine, which has been the cause of considerable confusion in other cases. Leval writes …
Here, ReDigi hosts a remunerative marketplace that enables resale by purchasers of digital music files, which is a commercial purpose. Especially in view of the total absence (or at least very low degree) of transformative purpose, the commercial motivation here argues against ReDigi with respect to Factor One.
In other words just because ReDigi’s business model would indeed be novel, that doesn’t make it “transformative” in regard to fair use. The business model offered a substitute for the primary market for creative works, which would threaten the (already low) market value of those works. (And as mentioned before, the dominance of music streaming implies ReDigi’s obsolescence rather than its novelty.)
These two decisions in one of the most active copyright circuits provide essential guidance for the kind of fair use defenses that are typical of the digital market. Hence the appearance of Fair Use Week six years ago is suspiciously contemporary with efforts to expand that secondary application of “transformativeness” in the service of big tech ventures, rather than the production of new forms of expression.
In this regard, I cannot agree with the way in which Peter Jaszi framed his testimony before Congress in 2014, in which he said …
“Fair use, one might say, is like a muscle – it will grow in strength if it is exercised, and atrophy if it is not. But, by the same token, fair use is hardly unusual or exotic today. Everyone who makes culture or participates in the innovation economy relies on fair use routinely – whether they recognize it or not.”
This conflating the original purpose of fair use (i.e. to foster new expression) with the so-called “innovation economy” is emblematic of the persistent confusion in the market today—a chronic inability to distinguish between the creators and the platforms on which they operate—the difference between the YouTuber and YouTube, if you will.
Internet companies have consistently sought to exploit confusion about fair use. Just as they conflate our free speech rights with their profit interest in letting all content “flow freely,” they promote that same talismanic notion of fair use in their own pecuniary interest. And that’s probably why Fair Use Week started six years ago. Meanwhile, with the jury still out as to whether the “innovation economy” is really an economy at all, at least the Courts of Appeals have restored some order to the application of fair use for the time being.