Category Archives: Fair Use Week

Can Fair Uses Be Made of Copyrighted Works for Online Courses?

Posted February 23, 2017

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The following is a Fair Use Week guest post by Authors Alliance President Pamela Samuelson.

Faculty members who assign a few scholarly book chapters to their students for nonprofit educational purposes should be able to rely on fair use when posting them on course websites, according to the brief Authors Alliance filed in support of Georgia State University’s (GSU’s) fair use defense in the copyright lawsuit brought by Cambridge University Press (CUP).

GSU’s fair use defense was bolstered by various limits it put on the posting of copyrighted book chapters. Faculty members had to fill out fair use checklists, taking into consideration, among other things, whether the amount assigned was reasonable in light of the pedagogical purpose they had in assigning the materials. Only enrolled students could access the in-copyright materials, they could access them only through password-protected course reserves, and this access was only authorized during the term the students were enrolled in that class or seminar. For the most part, only one chapter per work was assigned. GSU faculty mostly used the online course websites for supplemental materials, having assigned readings from textbooks and other materials that students had to buy. The overwhelming majority of the chapters at issue were scholarly works written by academic authors on specialized topics used for small courses or seminars from works published a decade or more before. All of these factors supported the trial court’s fair use ruling.

The Authors Alliance brief explained that academic author incentives to write scholarly book chapters would, contrary to CUP’s claim, not be harmed and might well be enhanced by such uses of the chapters for GSU classes. Academic authors generally write scholarly book chapters to share the knowledge and insights they have attained with others and hope that publishing the chapters will enhance their reputations for contributions the authors made to their fields. In addition, publishers’ incentives to continue to publish scholarly books should not be harmed by the limited uses GSU faculty and students were making of the book chapters because publishers get the chapters for free and expect to derive revenues largely from sales of books.

The fair use calculus changes if course websites hosting such materials are open to the general public, if multiple chapters from the same book are utilized in online courses, if the chapters are from textbooks relevant to especially large enrollment classes, and if the online course is part of a for-profit enterprise.

This is not to say that such uses could not be fair, but faculty members would be well-advised to be more cautious in posting in-copyright materials, such as book chapters, on course websites under these circumstances.

Fortunately, the proliferation of scholarly articles and book chapters on pre-print servers in various fields, the adoption of open access policies by universities, leading foundations, and government granting agencies, and the greater willingness of publishers to agree to nonprofit educational uses or open access licenses means that there are many scholarly works available to be used for online courses these days. It is unfortunate for authors who assigned copyrights in book chapters or journal articles back in the days when pre-print servers and open access policies were not available that their works will be less widely read than they would wish, but it may be worth asking publishers to be willing to agree to at least limited nonprofit educational uses such as those being made by GSU faculty and students.

That being said, CUP has filed an appeal of the trial court’s findings of fact and conclusions of law that all but a few of the challenged GSU online course reserves uses were fair. Until the appellate court ruling comes down, one cannot be sure that GSU’s uses are fair. Still, the appellate court upheld much of what the trial court held about fair use the last time CUP ruled, and sent the case back for further proceedings under a somewhat revised framework that the appellate court spelled out. Because the trial court carefully followed that revised framework and made findings in line with the appellate court’s guidance, I am cautiously optimistic that the court of appeals will affirm.

For further reading on fair use, refer to the Fair Use FAQ on the Authors Alliance Resources page.

First Sale, Fair Use, and Digital Downloads:
Capitol Records v. ReDigi

Posted February 22, 2017

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In honor of Fair Use Week, we are delighted to feature this guest blog post from NYU Technology Law & Policy Clinic students Cassie Deskus and Kristen Iglesias discussing the role of fair use in the ReDigi case.

The Second Circuit will soon hear arguments in Capitol Records v. ReDigi, a case that will determine if and when consumers will be able to resell lawfully owned digital media. ReDigi provided an online marketplace for reselling music purchased from iTunes. ReDigi’s software allowed users to transfer music from their computer to ReDigi’s cloud servers, where it was offered for sale. Upon a subsequent sale, the software transferred the file to the buyer’s computer. The transfer process attempted to avoid copyright issues by employing strong verification safeguards and ensuring that there was only ever one full copy of the song in existence at any given time.

If ReDigi had been in the business of reselling physical CDs or books, resale would have been an uncontroversial application of first sale—a doctrine which permits the owner of any lawfully owned copy to dispose of that copy without restriction. The District Court, however, held that each song transfer was an unlawful reproduction, effectively preventing the owner of a digital work from reselling it. Unless the opinion is reversed, the only way consumers will ever be able to resell their digital music or books is to sell their entire digital device. In other words, to resell a $0.99 eBook you finished reading years ago, you’d have to sell your entire tablet and all of its contents!

This should be concerning to all creators of digital works. Without lawful resale, the “secondary markets” we enjoy in the physical sphere–libraries, used bookstores, garage sales, and even donations–cease to exist in the digital sphere. Not only will authors be unable to reach the same listeners and readers via digital publication that they might through analog publication, but those same listeners and readers won’t be able to easily share the digital works that they love.

That’s why the NYU Technology Law & Policy Clinic filed an amicus brief on behalf of over 20 copyright scholars, including several Authors Alliance members, arguing that any alleged unlawful reproductions are covered by either first sale or fair use.

As many Authors Alliance members know, the first factor of fair use is “the purpose and character of the use.” We argued that exercising a copy owner’s first sale rights, which have been recognized by courts and Congress for over one hundred years, is about as fair a purpose as can be. The public benefits resulting from digital secondary markets also favor this interpretation. The fact that ReDigi was a commercial enterprise does not change this outcome—indeed, many commercial uses of digital copyrighted works have been held to be fair use. ReDigi’s platform parallels secondary markets that have always existed in the physical realm; such markets are a testament to copyright law’s tolerance for, and accommodation of, robust resale rights. We hope that the Second Circuit reverses the lower court and preserves digital first sale, especially given the strong fair use arguments favoring ReDigi. If you’d like to read the rest of our argument, the entire brief is available here.

Fair Use Week: Our Best Practices Guide is Underway!

Posted February 21, 2017

ARL-FairUseWeek-Logo-BlueThis Fair Use/Fair Dealing Week, we’re highlighting a new project that’s of special interest to any non-fiction author who has ever been baffled by fair use. Following on the success of our educational guides for rights reversion and open access, we are hard at work on our latest project: a new guide to fair use best practices for non-fiction authors. Inspired by the work of Peter Jaszi and Patricia Aufderheide at the Center for Media and Social Impact at American University, the third volume in our growing library of educational resources will focus on best practices for nonfiction authors—from biographers to science writers, historians to literary critics, memoirists to academics, and beyond—who depend on the use of copyrighted materials in their work.

Authors Alliance is partnering with the Samuelson Law, Technology, and Public Policy Clinic at UC Berkeley Law to draft the guide, which will feature extensive input from non-fiction authors, copyright experts, and partner organizations. The goal of this fair use guide is to empower authors to exercise their right to use source materials to further their research and writing goals by helping them to make confident fair use decisions. The guide will help nonfiction authors who want to do things like:

  • Include song lyrics in an academic paper discussing musical trends;
  • Use several lines from a novel to analyze the author’s use of metaphors in a work of literary criticism;
  • Use a chart in a scientific paper to demonstrate a process;
  • Incorporate a photograph in a biography to provide historical context;
  • And much more!

We plan to release the guide this year, and look forward to keeping our members, allies, and partner organizations up to date on the project. If you have a question, concern, or real-life example of a fair use issue that you would like to see addressed in the guide, let us know! We can always be reached at info@authorsalliance.org.

International Fair Use Developments: Is Fair Use Going Global?

Posted February 25, 2016

by Raoul Grifoni-Waterman, Copyright Policy Research Assistant at Authors Alliance, LL.M. Candidate at U.C. Berkeley Law, and Leiden University LL.M.

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Every country leaves some room in its copyright laws to protect free expression and allow for the everyday uses of copyrighted works that creators and consumers need. But not everyone takes the same approach.

Out of 47 countries with fair use or fair dealing exceptions to copyright infringement, as surveyed in The Fair Use/Fair Dealing Handbook, only eight had a flexible fair use limitation on copyright infringement. The other type of surveyed exception is fair dealing, where an action must generally be directed toward a predetermined list of purposes in order to be deemed fair.

While the broader fair use exception—which Authors Alliance celebrates—is plainly the global outlier, there are indications that it is gaining traction.

The European Union, for example, provides an exhaustive list of copyright infringement exceptions in its 2001 Copyright Directive. However, while European Union member states may be constrained in implementing a general fair use exception in their national laws, there are calls for moving closer to its flexible approach. The United Kingdom, for example, was persuaded to examine fair use after hearing about its role in the U.S. technology economy. The resulting review found much commendable about fair use, and—conservatively—recommended the implementation of a new, more limited exception, to try and capture some of fair use’s openness to unexpected technological developments.

Fair Use Week Guest Post: Lydia Loren on Fair Use as More Than Just a “Defense” to Infringement

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Lydia Pallas Loren is a founding member of Authors Alliance and a law professor at Lewis & Clark Law School in Portland, Oregon. Her recent article Fair Use: An Affirmative Defense? appears in the University of Washington Law Review.

Larry Lessig once famously declared, “[F]air use in America simply means the right to hire a lawyer….” That view of fair use seems to accept that fair use is a defense to a claim of infringement and seems to suggest that the burden of proving a use is fair lies with that user. The Supreme Court in its 1994 fair use decision in Campbell v. Acuff-Rose Music, Inc. once spoke of fair use as an affirmative defense. But is that really the right way to view this critically important limit on copyrights?

In civil litigation in the United States, it matters who bears the burden of proof: the copyright claimant or the possible fair user? Calling fair use an affirmative defense places the burden squarely on the defendant. But that is not how the doctrine of fair use was originally conceived. In the case that is most often credited as the fountainhead of the fair use doctrine, Folsom v. Marsh, Justice Story did not cast his inquiry as one based on a “defense”; rather, the factor-based evaluation that we now call fair use was the central inquiry into whether the defendant’s use invaded the copyright owner’s rights. Justice Story described the evaluation of the quantity of copying as “the real hinge of the whole controversy, and involves the entire merits of the suit.” He did not view the inquiry into the magnitude of the copying, the reasons for it, or the harm to the plaintiff’s market as anything other than the central question of infringement.

Fair Use Week Guest Post: Rebecca Tushnet on Fair Use and the DMCA’s “Anticircumvention” provisions

Posted February 24, 2016

Rebecca Tushnet is a founding member of Authors Alliance and a Professor of Law at the Georgetown University Law Center.

My work on section 1201 of the Digital Millennium Copyright Act (DMCA), which prohibits use of “circumvention” technology such as DVD rippers or, potentially, even screen capture software in order to make video clips for use in new works, has convinced me that it’s one of the most counterproductive provisions in copyright law. Counterintuitively, Section 1201 makes the process of acquiring video illegal even if the result is unquestionably a fair use.

On behalf of the Organization for Transformative Works, I have participated three times in the triennial exemption process that provides temporary exceptions for certain users. The community I work with, vidding, is full of artists who make works commenting on and transforming existing works, adding new meaning and insights—from reworking a film from the perspective of the “villain” to retelling the story as if a woman, instead of a man, were the hero. Section 1201 threatens these traditional artistic remix practices in new media.

The idea that it could be unlawful to perform the steps necessary to take a lawful act is mystifying to most people, including remixers.[1] Indeed, as researcher Lucas Hilderbrand observed, “when people learn about the extent of the DMCA restrictions, they respond with shock and outrage, which tends to turn either to pessimism or to willful disregard for the law.”[2] Under §1201, remixers risked having their fair uses suppressed simply because they did what seemed like the fairest thing for the copyright owner and paid for a copy from which they could clip, rather than downloading an unauthorized copy without copy protection.[3] Indeed, the few remixers who did know about the DMCA were pushed into illegitimate markets.

Authors Alliance Celebrates Fair Use and Fair Dealing Week!

Posted February 22, 2016

This week is Fair Use and Fair Dealing Week, a time to celebrate, reflect on, and explain these important rights. Authors Alliance is pleased to participate, together with the week’s organizers at the Association of Research Libraries and dozens of other participating organizations.

While fair use rights are also valued by educators, consumers, and technologists, they play a particularly important role for authors. Fair use provides the essential creative freedom to comment on, criticize, build on, and transform others’ works, and helps to ensure that copyright serves rather than hinders free expression.

But, as our own Pamela Samuelson illustrated last year, fair use continues to benefit authors after their works are created, helping preservation efforts by archives and libraries, and enabling new discovery tools that help them reach readers.

While most creators intuitively understand many fair use principles, being familiar with the law is important to fully and properly exercising its rights. Now is the perfect time to brush up, using the information posted at the Fair Use and Fair Dealing Week HQ, or at our own Fair Use FAQ.

And in celebration of these essential rights, we’ll be posting new items exploring different fair use, its importance, and its future throughout the week. Stay tuned!

Fair Use Best Practices and Creative Communities

Posted February 27, 2015

Guest post by Founding Member Michael Madison

For a week about fair use, let me make fair use about authorship, and the shared goals of copyright, and in a very specific way.

First, some background: I first wrote at length about the purposes and law of fair use in a long paper published in 2004, A Pattern-Oriented Approach to Fair Use. I surveyed fair use cases and offered four related conclusions: To begin with, fair use decisions were (and are) more predictable and consistent than is commonly thought, and fair use decisions can be clustered around the idea that fair use should align with a “pattern” of creative practice. More broadly, as I wrote in a later paper (Some Optimism About Fair Use and Copyright Law):

creativity and knowledge production is an emergent property of patterned social behavior; … those patterns exist concurrently with but distinct from market-based production of knowledge goods by individuals and firms; [and] those patterned behaviors can be identified as institutions, and exempting those institutions from the discipline of copyright’s scheme of exclusive rights is likely to increase the social welfare produced by the copyright system as a whole and is likely to not diminish the social welfare produced by the market side of copyright

In short, what’s good for fair use is good for authors, and vice versa.

More important, however, that paper was timed – coincidentally – to align with the emerging “Best Practices in Fair Use” project at the Center for Social Media (now Center for Media and Social Impact) at American University, and the efforts of that project’s leaders, Pat Aufderheide and Peter Jaszi.

The key insight motivating the Best Practices project was a close cousin of my pattern-oriented argument: That the power of fair use lies not merely with individuals but, importantly, with communities – creative communities. Authorial communities.

Since 2006, CMSI has partnered with a number of not-for-profit organizations to produce “statements” of best practices for members of specific creative communities that are grounded simultaneously in deep knowledge of each community’s sense of its own fair creative practice as well as in generally accepted principles of copyright law. The full roster and text of the statements are available at the CMSI website, at http://www.cmsimpact.org/fair-use (disclosure: for several of the statements, I served on a Board of Legal Advisors that reviewed them prior to publication).

The Statements, like fair use itself, are imperfect in any number of ways. But the perfect need not be the enemy of the good. And it’s very good indeed to have a means for recognizing that creative communities’ practices inform the shape of fair use law, and allowing those communities to take active and considered part in articulating how fair use should work for them. They are an important reminder that while copyright’s exclusive rights are important to authors as creators of individual works, fair use is equally important to authors as members of communities.

Why is Fair Use Good for Authors?

Posted February 25, 2015

Authors Alliance Co-Founder Pamela Samuelson

Authors and artists rely on copyright’s doctrine of fair use far more than they may realize. February 23-28 is Fair Use Week this year, so it’s a good time to think about when and why fair uses benefit authors. (Fair uses of copyrighted works are not infringements; here’s a link to the Authors Alliance FAQ about fair use.) Authors and artists are likely to make and benefit from fair uses in every phase of the creative process and long thereafter.

The preparatory phase of creative work often involves making and being surrounded by fair use copies of materials that contain the information or inspiring words or images that the author/artist needs as raw materials. Sometimes authors search through large numbers of documents or other works to find the exact words or images that they need to prove or illustrate a point they want to make or to set context for the story they plan to tell. Often, the perfect source can only be found by scouring through reams of material, selecting from this a relatively small number of candidates for the use, and then as they create the work they have in mind, figuring out which is the right quote or image to use and where exactly to place it. Fair use copying is an integral part of this phase of the creative process.

Fair Use and the Ecstasy of Influence

Posted February 23, 2015

Authors Alliance Co-Founder Molly Van Houweling

In honor of fair use week, we’re taking a look back The Ecstasy of Influence, by award-winning author Jonathan Lethem. (Read more about Lethem’s work in this recent review.)

Lethem, who serves on the Authors Alliance Advisory Board, does not mention fair use in his 2007 essay (which is also one of a collection in his book of the same name). Instead, The Ecstasy of Influence embodies fair use with both its text and technique.

The text is a reflection on the role of inspiration and appropriation in all acts of artistic creation. Its purpose (as Lethem later described in an essay entitled The Afterlife of Ecstasy), was to reveal “the eternal intertextuality of cultural participation—of reading, writing, making things from other things.” In so doing, Lethem implicitly defends fair use, which the U.S. Supreme Court has described in Campbell v. Acuff Rose as a “guarantee of breathing space within the confines of copyright” that often privileges the transformation of copyrighted works into new works that do not supersede the originals but rather add “something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

The Ecstasy of Influence demonstrates this type of transformation through its technique of respectful re-mix. The 8000-word essay reads as a coherent expression of a singular authorial voice. But Lethem reveals at the end why the subtitle is “A Plagiarism.” He presents a key, in which he “names the source of every line I stole, warped, and cobbled together as I ‘wrote’ (except, alas, those sources I forgot along the way)” and clarifies that “[n]early every sentence I culled I also revised, at least slightly — for necessities of space, in order to produce a more consistent tone, or simply because I felt like it.”