Tag Archives: copyright week

New Fair Use Cases for 2015: Rosen v. eBay and Fox v. DISH

It’s Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation!  Today’s topic is “Fair Use Rights: For copyright to achieve its purpose of encouraging creativity and innovation, it must preserve and promote ample breathing space for unexpected and innovative uses.”

In 2014, courts gave us some wonderful fair use cases, including several dealing with creation of searchable databases. In Authors Guild v. HathiTrust, for example, the Second Circuit strongly affirmed the right of fair use, finding in favor of HathiTrust’s creation of a full text search database and provision of accessible formats for the print disabled. In the long-awaited opinion White v. West Publishing, the Southern District of New York affirmed that ingesting briefs into a search database was a new use with a different character from the original briefs. Fox News v. TVEyes provided yet another case in which aggregating copyrighted works into a searchable database, this one dealing with video and audio works rather than text, was affirmed as fair use. For more fair use cases from last year, Dan Nabel, guest posting on Eric Goldman’s blog, has a great roundup of the top ten cases in 2014.

Just weeks into 2015, the Central District of California has already decided at least two new cases with fair use components (both cases involved several other copyright and contractual issues), finding largely in favor of fair use.

Rosen v. eBay — Photographing physical works for the purpose of re-selling the physical works

This case involves a lawsuit by Barry Rosen, a professional photographer, against eBay asserting, among other issues, that photographing physical magazines containing his images and posting them on eBay’s auction site violated his copyright. eBay argued that a photograph of the physical magazine was fair use.

The district court found that the photographs of the magazine “as used to represent physical magazines for resale, constitutes fair use.” It found that the use was transformative because while the original photographs were created for artistic purposes, the photographs of the magazines were used to provide information as to the condition and content of the magazines being sold. The court noted that, “the public also benefits greatly from being able to evaluate the magazines offered for sale legitimately under the first sale doctrine.” The court also found that photographing the magazine was necessary for its purpose and that the effect on the market was minimal.

Furthermore, the court rejected Rosen’s claim that fair use applies only to certain types of infringement and “the fair use doctrine applies to all forms of use of copyrighted works.” Holding otherwise, the court stated, “would drastically limit the ability of any person to resell any visual copyrighted work except to those in the physical presence of the work.”

Fox Broadcasting v. Dish Network — Time-shifting and place-shifting

Dish Network offered services that record television shows and skip over commercials, asserting that such technology was fair use, and was subsequently sued by various networks. The case involved a number of copyright and contractual issues; while the court found largely in favor of fair use for time-shifting and place-shifting technology, it also found that Dish Network may be liable for breach of contract.

The district court found that the “PrimeTime Anytime” service, which allowed users to record prime time television shows and skip over the commercials, constituted fair use under Universal Studios v. Sony (the “Betamax” case in which the Supreme Court ruled that videotaping a television broadcast was fair use). The district court summarized, “Sony established that it is fair use for users to make individual copies of television shows from broadcast television for purposes of noncommercial, nonprofit time-shifting.” The district court found that even though a market exists in which Fox licenses its programming to third parties to be distributed commercial-free, DISH’s PrimeTime Anytime service constituted fair use because the service did not compete with this market. The court noted that DISH subscribers had access to other services to record programming manually using other DVR technologies and that the recordings through the PrimeTime Anytime service was only available for eight days unless the subscriber affirmatively saved the recording in another folder. The district court then concluded that “The potential for market harm to the secondary market for Fox’s program caused by PTAT alone is simply too speculative to defeat a finding of fair use by a time-shifting technology which enhances consumers’ non-commercial private use of recorded programming.” While finding in favor of fair use of the PTAT technology, however, the court ruled against fair use for the copies DISH made as “quality assurance” copies finding that they were non-transformative.

After ruling in favor of DISH’s time-shifting technology, the court also noted that place-shifting is fair use: “Hopper Transfers is a technology that permits non-commercial time- and place-shifting of recordings already validly possessed by subscribers which is paradigmatic fair use under existing law. See Recording Indus. Ass’n of Am., 180 F.3d at 1079 (making copies ‘in order to render portable or ‘space shift’ those files that already reside on a user’s hard drive . . . is paradigmatic noncommercial use.” While this use is itself a fair use, however, DISH may have violated its contractual agreements with Fox.

These first fair use cases of 2015 involve vastly different circumstances, but highlight the importance of the fair use right. Fair use, working in tandem with the first sale doctrine, can provide information to the public about the quality of an item being sold. It can also provide valuable services with new technologies to consumers. As these cases demonstrate, fair use is relied upon every day and the doctrine helps balance copyright law. Of course, fair use extends far beyond the scope of these cases.

As an extremely crucial right touching upon so many facets of every day life, fair use deserves to be highlighted multiple times and we hope you will join us in celebrating this important doctrine during the upcoming Fair Use Week!  More information on Fair Use Week 2015, which will be held February 23-27, is available here.

Flaws of the 1201 Rulemaking Process

It’s Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation!  Today’s topic is “You Bought It, You Own It: Copyright policy should foster the freedom to truly own your stuff: to tinker with it, repair it, reuse it, recycle it, read or watch or launch it on any device, lend it, and then give it away (or re-sell it) when you’re done.”

You bought it, you own it.  This principle applies in the analog world, but in the digital world it is less clear.  In the digital world, technological protection measures (TPM) or “digital locks” may prevent a user from tinkering with a copyrighted work or product he has purchased, even if it is for a completely lawful purpose due to rules in the Copyright Act prohibiting circumvention of these locks.

ARL, as part of the Library Copyright Alliance, is currently involved in the Section 1201 rulemaking process, a procedure where the Copyright Office will determine what classes of works will receive an exemption from the anti-circumvention rules governing TPMs. The process takes place every three years—this is the sixth rulemaking—and individuals or groups can petition to have the previous exemptions renewed or expanded, or can apply for new exemptions.

The rulemaking process is time and resource consuming. Indeed, the 2009 rules were delayed and not announced until July of 2010. The entire process can take a year or more and because the exemptions are renewed de novo without any benefit of a presumption in favor of renewal, it is a burdensome procedure. These exemptions are not made permanent even after multiple renewals, but instead the entire process is repeated again and again.

It is important to note that the exemptions that are requested are for all for non-infringing uses. These are uses that would be permitted, without the time and expense of a rulemaking process, for copyrighted works in analog form which are not accompanied by TPMs. These uses might be for the same purposes as specific limitations and exceptions, such as the making of accessible format works for persons who are print disabled, or for fair use purposes. Despite the fact that these purposes are permitted where TPMs do not exist, in order to achieve these same purposes in the digital world, exemptions must be requested every three years.

This is a fundamental flaw in the language and interpretation of 1201. As LCA’s comments for the record at the House Judiciary Subcommittee hearing on the issue of technological protection measures points out:

The fact that every three years the blind need to expend scarce resources to petition the Librarian of Congress to renew their exemption—or that libraries and educators have to seek renewal of the film clip exemption every three years—demonstrates the fundamental flaw in section 1201. That flaw is that section 1201 could be interpreted to prohibit the circumvention of a technological protection measure even for the purpose of engaging in a lawful use of a work. Congress should adopt the approach proposed by the Unlocking Technology Act of 2013 and its predecessors, attaching liability to circumvention only if it enables infringement.

LCA’s petitions for the 2015 rulemaking process highlight some absurdities. One of its petitions focuses on making literary works distributed electronically accessible for persons with print disabilities. Although this exemption has been continually renewed since 2003, the exemption must again be petitioned for and new evidence must be submitted. The second LCA petition requests an exemption for motion picture excerpts, including expanding the current exemption for all storage media, including Blu-Ray discs. The 2012 exemption applied only to a specific type of technological protection measure, known as Content Scrambling System, which is used with DVDs; because Blu-Ray discs used a different form of a TPM, this 2012 exemption did not apply.

In addition to the fact that the process is extremely repetitive, resource consuming and unnecessary, the rules have grown increasingly complex and long. In the 2003 rulemaking, the Librarian of Congress exempted four classes of works; these rules were laid out in 200 words. By contrast, the 2012 rules included eight classes of works—though five of these classes all relate to motion pictures, particularly excerpts or screen captures—and these exemptions amounted to nearly 1200 words. Consider, for example, the specific exemption for literary works distributed electronically. The word count more than doubled from its 2003 language to its 2012 language, becoming more complicated and including a cross-reference to Section 121 of the Copyright Act.

2003 exemption:

Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook’s read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.

2012 exemption:

(1) Literary works, distributed electronically, that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies in the following instances:

(i) When a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels; or

(ii) When such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121.

The result of the increasingly complicated and specific language across all the exemptions (in fact, the language for the benefit of the print disabled above is relatively simple in comparison to other 2012 exemptions) is that these exemptions become virtually unusable for many users.

The process should be re-thought to ensure that 1) resources are not unnecessarily wasted through a repetitive, time-consuming process and 2) the beneficiaries of these exemptions can clearly understand the rules and make use of the exemptions.

Copyright Week!

Today is the start of Copyright Week,  a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

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Stay tuned the rest of this week for posts on technological protection measures, fair use, transparency in policymaking, and the importance of the public domain!