Tag: fair use

Brief in Defense of CDL Indicts Internet Archive and CDL

Among the amici who filed briefs in Hachette v. Internet Archive is former law professor and library director Michelle Wu, who, as the brief states, “…is recognized by many as the originator of the legal theory underlying controlled digital lending (“CDL”) ….” With her brief, Wu seeks to defend CDL as a doctrine and asks the court to limit its considerations to the facts related solely to IA’s conduct and to reject what she calls the publishers’ overbroad “attack” on CDL itself. She states:

CDL takes many forms. Many libraries around the United States offer works through CDL subject to their own individual platforms and practices. The arguments offered by Plaintiffs in support of their motion for summary judgment are a broad-based attack on all of them, shoehorning the very concept of CDL into a dispute about the Internet Archive’s individual implementation of it.

Before addressing the arguments presented in the brief, it is noteworthy that if Ms. Wu would have CDL inoculated against the conduct of Internet Archive, she and her colleagues have had ample time to distance themselves and the legal theory from IA’s founder and avowed anti-copyright crusader Brewster Kahle. Because one year after IA engaged in the infringing conduct that triggered the publishers’ litigation (March 2020), Wu was a key member in a Public Knowledge-hosted panel with Kahle (March 2021), entitled Burying Information – Big Tech & Access to Information.

Promoted in the wake of the January 6th insurrection as a remedy to misinformation, the panel blamed copyright law for contributing to the perils of widespread ignorance and conspiracy theories threatening democracy. Specifically, Wu et al. touted CDL as a necessary alternative to ebook library licensing on the grounds that this licensing is somehow keeping knowledge away from the very people who need it. Further, nobody on the panel disputed Kahle’s allegations that the publishers’ suit against IA was an attack on CDL and libraries in general.

So, in addition to the fact that it seems hypocritical for Wu to now ask the court to distinguish the underlying theory of CDL from the conduct and agenda of IA, it is no surprise that the arguments she presents echo the same general complaints against copyright rights articulated in that panel discussion. For instance, Wu reprises the theme that libraries are sentinels against the tide of rampant mis- and disinformation in the digital age—and repeats the claim that CDL is integral to that mission. “CDL is an essential pillar of countering misinformation by making library materials accessible, relevant, and competitive,” the brief states.

Even if that premise were not magical thinking (because lack of access is not the cause of the dangerously misinformed), Wu paints with too broad a brush in defense of her theory that CDL is inherently legal. Aside from the fact that there is no evidence that all the access to all the books in the world will disburse the fact-immune hoards from laying siege to reason,[1] Wu’s faith in the contrary belies a general prejudice against copyright law in lieu of articulating a concise argument for the narrow opinion she claims to want from the court.

Moreover, Wu may be blind to the fatal flaw in her central argument when she says that “many libraries” use CDL in different ways to achieve a variety of purposes. The problem with her list of general examples (e.g., CDL for preservation, serving readers with disabilities, etc.) is twofold. First, many of the examples stated or implied are activities exempted for libraries by statute. Second, the possibility that certain activities of several libraries may be allowed by fair use undermines the broad sweep of Wu’s defense by emphasizing that fair use is a fact-intensive, case-by-case consideration.

Finally, and perhaps most importantly, a fair use defense does not turn on a particular method of copying or making a work available. The CDL theory asserts that it is legal for a library to essentially make its own ebooks from the printed books in its collection, as long as it never loans more electronic copies than it owns physical copies that were legally obtained. Wu’s brief impliedly acknowledges that Internet Archive did not adhere to the “controlled” part of CDL, but in seeking to rescue “real CDL,” the brief is tellingly overstuffed with allegations that, even if true, are not applicable to a question of fair use.

For instance, Wu refers to budgetary constraints of libraries and the supposedly onerous cost of ebook licensing by publishers. But even if this allegation were valid for most libraries—and it does not appear to be—it would say nothing about whether a library’s version of CDL would fall under the fair use exception. On the contrary, Wu’s complaint about existing ebook licensing effectively acknowledges that CDL is a means of bypassing that licensing model and implies that this is justified by cost.

This argument is barely distinguishable from familiar rationalizations for large-scale piracy, which any court should find unpersuasive in general and should find meaningless as a fair use question. The amount of a licensing fee demanded for any work is immaterial to the question of whether a user who avoids paying the license is making a fair use. Wu’s attention to the cost of ebook licensing seems meant to distract from the reality that, even with the controls in force as prescribed by the CDL theory, the model displaces the authors’ right to license ebooks on their terms to libraries. And this market substitute consideration should ultimately doom a fair use defense on all four factors.

This consideration would be unaffected, even if ebook licenses were shown to be onerous because such a complaint, if valid, would properly sound in antitrust law or consumer protection or be argued before Congress seeking a new library-based exemption in the Copyright Act.[2] But because allegations of burdensome pricing models are not properly addressed by fair use, this suggests, again, that Wu and her colleagues defending CDL are admitting that the model is a market substitute and believe that it should be based on their own ideological reasoning

Several aspects of Internet Archive’s operation, including the activities at issue in this litigation, disqualify the entity from statutory exemptions accorded to libraries in Section 108 of the Copyright Act. Inasmuch as IA tries to stand in the shoes of real libraries, this is a PR message for social media but one without a foundation in law. And because IA is not a real library, a finding that its conduct is legal would only further embolden any commercial enterprise to engage in mass, unlicensed digitization and distribution of ebooks and other works.

By contrast, Wu’s insinuation of difficulties for legit libraries engaged in “many forms” of CDL are either unfounded or, perhaps, they inadvertently implicate some of those libraries in infringing conduct. Either way, facts pertaining to the operation of some number of unnamed libraries are not before the court in this case, and only a detailed accounting of those facts, library-by-library could have any legal bearing on those activities. As such, we must conclude that Wu and her colleagues simply want the courts to find that CDL is automatically fair use, and this would be doctrinally absurd. Because the courts are well aware that no conduct is automatically fair use. Not even for libraries.

[1] As noted in my post about that panel, the entire Western canon is more widely and freely available than at any time in history.

[2] In fact, the state ebook licensing laws for libraries have largely been premised on consumer protection and still failed, thus far, as unconstitutional state compulsory licenses.

Photo by: nito

Doc Filmmakers Brief in AWF v. Goldsmith is Misguided

In both Andy Warhol Foundation v. Lynn Goldsmith (SCOTUS) and Hachette et al v. Internet Archive (SDNY), the amicus briefs are piling up fast. Not that I have any intention of writing about every argument presented in either case, but rummaging through the briefs in Warhol, one filed by a group of documentary filmmakers on behalf of AWF caught my attention. I support documentary filmmakers as much as any other type of creator, but the arguments presented to find fair use for AWF are inappropriate and ill-advised.

As a general critique, the filmmakers’ brief is too dramatic (and frankly dishonest), claiming that if SCOTUS affirms the Second Circuit’s finding against fair use for Warhol, the decision “could devastate the documentary film genre.” This hyperbole reveals the central flaw in the brief which implies that doc filmmakers have enjoyed a degree of certainty in fair use prior to the current ruling in Warhol and, therefore, argues that upholding the ruling will further disrupt that certainty. This is untrue.

If the filmmakers would have the Court believe that documentarians have thus far relied on the fair use rationale as applied by the district court in this case, history does not support this claim. On the contrary, if the Court were to agree with AWF’s reasoning as presented, it would create a novel presumption of certainty by broadening fair use to encompass almost any use that adds “something” to the world. Such a holding may seem attractive to many users of protected works, but it is incorrect to argue that this reasoning is consistent with fair use doctrine to date, and it is folly for any class of creator to be so eager to weaken their own copyright rights.

Doc Films Do Not Depend on the Question Presented

The filmmakers’ brief relies heavily on an accurate but incomplete portrait of the doc filmmaker as a paradigm among fair users. It is true that a documentary may fulfill several, or all, of the exemplary fair use purposes enumerated in the preamble of Section 107 of the Copyright Act. A film might be simultaneously commentary, criticism, education, and news reporting, which is why documentaries enjoy what the brief describes as a “favored” status in a fair use consideration.

But there is no foundation to argue that this status will be disturbed if the Court rejects AWF’s fair use theory, and the filmmakers’ brief does not present a compelling argument to the contrary. It merely alleges that such an outcome would be harmful, even though documentary filmmakers are in roughly in the same posture vis-à-vis fair use as they have been since 1978, if not earlier.

The filmmakers argue that if their work is subjected to the Second Circuit’s “side-by-side” search for transformativeness, this would expose many documentaries to unprecedented liability for infringement. But this claim is inapt as a matter of law and inconsistent with traditional doc film production in practice. As a legal matter, AWF v. Goldsmith is fundamentally (and frustratingly) about the conflict between transformation as fair use and transformation as protected derivative work, but this doctrinal tension is rarely present in a typical documentarian’s use of protected material, including most, if not all, of the examples cited in the brief.

Because documentaries tend to fulfill one or more of the paradigmatic purposes of fair use, they benefit from a legal pedigree that predates the “transformativeness” doctrine and much of the confusion it has spawned. Most fair uses of protected material in documentary films are relatively easy to identify without addressing the theoretical distinction between a transformative fair use and a derivative work. Consequently, the filmmakers’ concern that they will encounter new liability on the basis that works are often used in films “without alteration” is misplaced and a poor reading of classical fair use doctrine.

For instance, the filmmakers argue somewhat breathlessly that, “Relying on Warhol, at least one trial court has already held that brief uses of a photojournalist’s footage in documentary programming were not transformative as a matter of law because they were not altered and were thus “even less transformative than the use at issue in Andy Warhol.” (Emphasis added). But in fact, the opinion cited (Fioranelli v. CBS) reprises a litany of Second Circuit holdings dating back to 1997 and summarizes the court’s general view thus:

A common thread running through [Second Circuit visual art] cases is that, where a secondary work does not obviously comment on or relate back to the original or use the original for a purpose other than that for which it was created, the bare assertion of a “higher or different artistic use,” is insufficient to render a work transformative.

So, the holding in Fioranelli is not a direct result of Warhol, and the requirement to “comment on…” the original work is longstanding doctrine when considering factor one in a fair use analysis. Moreover, that lawsuit was triggered by multiple uses by sublicensees made in breach of the photojournalist’s original agreement with the network. This detail further weakens the filmmakers’ argument in Warhol because the defendant’s initial obligation to license in that case demonstrates that documentary films usually rely on a combination of licensed and fairly used materials. A finding for Goldsmith will not place an unprecedented burden on filmmakers to consider fair use for each work used in a project, and the filmmakers’ brief is instructive when it undermines its own argument, stating:

… many copyrighted excerpts in documentaries are clearly recognizable, and the new work often does not comment on or directly relate back to them. Rather, the borrowed works are generally presented in combination with other archival sources, original content, and commentary via narration or interviews. This is done to provide viewers with historical, cultural or social context, for the purpose—different from the originals’—of enhancing viewers’ comprehension of the films’ subject matter.

That description encompasses a spectrum of plausible fair uses under the same doctrine that rejects AWF’s theory. It may be that presenting a work “in combination” with other elements “to provide viewers with cultural or social context” meets the classical purpose of the fair use exception, particularly in a nonfiction work like a doc film. And maintaining this paradigm does not rely upon the question presented in this case, let alone a finding for Warhol.

Fair Use Remains a Case-by-Case Consideration

Fair use analyses are standard practice before the release of a documentary film. As the brief notes, producers typically obtain errors and omissions insurance, which may require a fair use assessment of the final film by an attorney. This analysis will not be made more difficult or uncertain by rejecting AWF’s fair use defense, and to the extent the filmmakers hope the Court may foster broader certainty by expanding fair use, I would caution them to be careful what they wish for. Under AWF’s theory, it would be substantially easier to infringe the copyright rights of the documentarian, too.

Documentary filmmakers are essential creators, but they do not require greater latitude in fair use considerations than the creators whose works they might use. If anything, the broad “favored” status enjoyed by documentary filmmakers obliges them to make a good-faith effort to understand which uses are reasonably fair use and which are not. There is ample guidance for the most common uses of works in nonfiction films, and where guidance is uncertain, licensing is available. In those instances where licensing may be unattainable, as alluded to in the brief, fair use is, as ever, a possible exemption but never a certainty.

Photo by: Gorodenkoff

Ephemera and Other Fair Use Defenses

I understand pursuing a fair use defense in a copyright case when the user of a work does something new and creative and believes there is a plausible argument to be made. I also understand why copyright skeptics file amicus briefs seeking opinions that would change the fair use doctrine. But what I find astonishing is the professional, who makes an archetypal use of a work, for which permission was obviously required, and then believes they can prevail on fair use through costly litigation. Because this keeps happening.

In the Spring of 2019, fine art and landscape photographer Elliott McGucken captured a transitory natural phenomenon—the sudden appearance of a lake in the middle of Death Valley, CA, known to be one of the hottest and driest places on Earth.[1] Heavy rains that March formed the 10-mile-wide ephemeral lake, of which McGucken made a series of beautiful and rare photographs, and several publications used his images by permission to accompany articles about the unusual event.[2] But when UK-based, digital publisher Pub Ocean failed to obtain permission for a similar use, McGucken sued for copyright infringement.

Using a photograph for illustrative purposes in an article or book is a paradigmatic use that requires license from the copyright owner. Newspapers, periodicals et al. have had to obtain permission for this purpose for as long as photographs have been protected by copyright law. Yet, despite this longstanding practice, even large commercial entities, perhaps lost in digital-age habits, too often use images without permission. Then, rather than settling with the photographer upon notification of the alleged infringement, these parties compound the error by litigating fair use defenses that will evaporate as surely as a lake in Death Valley.

Granted, in McGucken v. PubOcean Ltd, the fair use defense did prevail on summary judgment in the California District Court, and we have seen lower courts deliver such opinions in a handful of cases of this nature. But I cannot think of one similar instance in recent years that has not been overturned on appeal, including this case. It’s not that the fair use defenses are close calls, but rather, it seems, that certain district courts are hasty in reviewing their own circuit precedents. And in circumstances like this one, defendants are unlikely to find opinions favoring fair use any circuit.

Of the 27-page opinion delivered last week by the Ninth Circuit Court of Appeals, six of those pages cite a litany of precedent denying Pub Ocean any footing on factor one of the fair use analysis (purpose of the use, including commerciality). And here, as in other instances, losing on factor one is fatal to the rest of the fair use defense. In fact, commercial users of photographs (and their counsel for that matter) could read this opinion as a primer about typical uses of works that are not “transformative” under prong one.

As if wandering in a desert with a divining rod, Pub Ocean tried to exploit the seemingly vague semantics of the “transformativeness” doctrine, hoping to escape a sound reading of case law. It tried to argue, as others have done before, that merely placing McGucken’s photographs in the context of a news article, surrounded by text and captions, imbues the photographs with “new meaning and purpose” sufficient to find “transformativeness.” But the court writes …

Practically speaking, it is hard to imagine what would not be a fair use, or what could not be readily turned into a fair use, under Pub Ocean’s theory. Any copyrighted work, when placed in a compilation that expands its context, would be a fair use. Any song would become a fair use when part of a playlist. Any book a fair use if published in a collection of an author’s complete works. It would make little sense to treat this kind of “recontextualizing” or “repackaging” of one work into another as transformative.

More specifically, the court reaffirms what it means to make fair use of a work for the purpose of
“news reporting,” often a subject of confusion because it is one of the statutory examples cited as a purpose that may favor fair use. But here, the court clarifies, “We have recognized that ‘where the content of the [copyrighted] work is the story. . ., news reporters would have a better claim of transformation.’… ‘[C]ourts should be chary of deciding what is and what is not news,’ that label alone does not get Pub Ocean very far.” (Citations omitted).

Users of works are often puzzled by this distinction, but the courts are generally clear-eyed on the principle that the work used must be the subject of the commentary, criticism, or news reporting in order to favor a finding of fair use.[3] By contrast, when a work is used to illustrate, enhance, decorate, etc., especially by a commercial user, then use of the work requires permission of the copyright owner because it is unlikely to fall under the fair use exception.

Further, the court in McGucken adds a footnote stating that even if Pub Ocean had raised the argument that some portion of its article comments upon the photographs, this minimal commentary, in context to the rest of the article, would be unlikely to “help Pub Ocean establish fair use.” Again, this is instructive. Far too many users of visual works believe that adding a bit of text on top of an image (e.g., in a meme) or a caption below it automatically makes the use a fair use, and this belief persists despite guidance from many legal experts that fair use can be tricky and is always a case-by-case consideration.

But there is nothing complicated in McGucken. A commercial publisher used a photograph in the most common manner for which publications have long had to license photographs. The defendant has no foundation for establishing a purpose that would favor a finding of fair use, and absent such a purpose, the other factors fail almost by default. For instance, the court clearly states, under the factor four consideration (potential market harm to the original work), that McGucken’s interest in licensing his photographs would be substantially harmed if Pub Ocean’s use were allowed and became rampant among other users.

I skipped over factors two and three on purpose because a) factor two (the nature of the work) almost always goes to the plaintiff owner of a photograph and is rarely determinative of fair use outcomes; and b) I wanted to highlight the factor three consideration (amount of the work used) because it appears the defendant made another typical blunder. “Pub Ocean argues that this factor favors fair use because the article used twenty-eight photos from other sources, making McGucken’s photos only a small part of the article as a whole,” the opinion summarizes.

That is wrong as a matter of law. The third fair use factor does not consider the weight or role of the used work relative to the scope of the work in which it is used. Here, the court rejects Pub Ocean’s claim stating, “this approach runs contrary to the text of the statute, which plainly calls for a comparison of ‘the portion used’ to ‘the copyrighted work as a whole’ and not the infringing work.” Further, the court reaffirms the interaction between factors one and three, stating, “Pub Ocean failed to point to a transformative purpose that would justify reproducing any of McGucken’s photos—much less the entirety of twelve of them.”

As I say, I don’t get why certain commercial entities so flagrantly infringe photographers’ copyright rights but am even more baffled when they spend tens of thousands of dollars on a doomed fair use adventure. I imagine Mr. McGucken would have settled for a fraction of Pub Ocean’s legal fees to resolve the matter, but it seems as if something in the air whispers “fair use,” and even defendants who should know better chase that vision only to discover that it isn’t even an ephemeral lake but is just a mirage.

[1] This post was drafted while unprecedented rains were flooding Death Valley National Park, trapping tourists and staff.

[2] SF Gate, the Daily Mail, the National Parks Conservation Association, PetaPixel, Smithsonian Magazine, AccuWeather, Atlas Obscura, and Live Science.

[3] Educational use is a bit different, and different conditions apply—namely that works used must be in a traditional classroom setting.

Photo source by: Makaule