Tag Archives: fair use

The Implications of the ReDigi Decision for Libraries

*Guest blog post by Jonathan Band, Counsel to the Library Copyright Alliance, which consists of the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries*

Summary

The U.S. Court of Appeals for the Second Circuit has finally issued its long-awaited decision in Capitol Records v. ReDigi. The Second Circuit affirmed the district court’s finding that the ReDigi service, which allowed the resale of iTunes files, infringed copyright. The Second Circuit’s reasoning clearly closes the door on the concept of digital first sale in a commercial setting. It also raises questions concerning the viability of Controlled Digital Lending (“CDL”) by libraries. Accordingly, CDL initiatives must be carefully reevaluated in light of this decision.

  • The Second Circuit affirmed that the first sale right, codified at 17 U.S.C. 109(a), is a limitation on the distribution right, not the reproduction right, and thus does not provide a defense to the making of copies during the course of the sale of digital files.
  • The court rejected ReDigi’s argument that its technology transferred digital files without reproducing them.
  • The court rejected ReDigi’s argument that fair use permitted any copies it made.
  • The decision is problematic for CDL for two reasons:
  1. The decision is the most analogous precedent to the library sharing of digital files of copyrighted works; and
  2. The decision could be read as implicitly rejecting the cornerstone of CDL’s fair use argument: that the first sale right should have a positive influence on the analysis of the first fair use factor.
  • Libraries need to consider whether their CDL programs are likely to pass muster under a more traditional fair use analysis that does not rely on section 109 exercising a positive influence on the first factor.

Background

The now defunct ReDigi service allowed a consumer to sell iTunes music files to other consumers. Under ReDigi’s technology, the music file on the seller’s server was broken into small packets, which were transferred one at a time to ReDigi’s server. When a packet was transferred from the seller’s computer, it was deleted from her computer. The same process was repeated when the file was transferred from ReDigi’s server to the buyer’s computer.

Capitol Records and other record labels sued ReDigi for copyright infringement. In 2013, the district court rejected ReDigi’s first sale defense on the grounds that the first sale doctrine is an exception to the distribution right and not the reproduction right, and ReDigi’s technology infringed the reproduction right. Further, the district court rejected ReDigi’s fair use defense with little discussion, noting that ReDigi’s use was commercial, non-transformative, and harmful to the market for music files.

The Second Circuit held a marathon two-hour oral argument on August 22, 2017. On December 12, 2018, the Second Circuit affirmed the district court’s decision with an opinion written by Judge Leval, one of the country’s leading copyright jurists.

Judge Leval’s Opinion

Judge Leval agreed with the district court that the first sale doctrine provided ReDigi with no defense against Capitol’s claim that ReDigi infringed its reproduction right; the first sale doctrine was a limitation on the distribution right, not the reproduction right. Judge Leval then turned to ReDigi’s contention that it had not infringed Capitol’s reproduction right. ReDigi noted that in its system, each packet was deleted from the seller’s computer as soon as it was transferred to ReDigi’s server. Accord to ReDigi, at no time was there a copy of a file on both the seller’s computer and ReDigi’s server. ReDigi argued that this meant that it didn’t reproduce the file, but just transferred it. Judge Leval rejected this interpretation, finding that the “phonorecord”—a defined term in the Copyright Act–that ended up on ReDigi’s server was a different “material object” from the phonorecord that had existed on the seller’s computer. Additionally, Judge Leval observed that as a factual matter, ReDigi could not ensure that a user had not retained duplicates stored on devices other than the computer on which the user installed the ReDigi software.

Next, Judge Leval considered whether the creation of this new phonorecord was a fair use. His analysis of fair use was more thorough and thoughtful than the district court’s, although he reached the same conclusion. He focused on the first and fourth factors, the purpose and character of the use and the impact of the use on the market for the work. His first factor analysis centered on whether the use was transformative—whether the use “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message, that than merely superseding the original work.” He explained, “uses that criticize, comment on, provide information about, or provide new uses for the copyrighted work are those likely to be deemed transformative.”

Additionally, Judge Leval stated that a secondary use may be transformative if it expands the utility of the original. Examples of utility-expanding transformative fair uses include scanning books to create a full text searchable database (Authors Guild v. HathTrust); copying works into a database to detect plagiarism (A.V. ex. rel. Vanderhye v. iPardigms); and displaying low resolution thumbnail images to facilitate image search (Perfect 10 v. Amazon, Kelly v. Arriba Soft).

To this familiar list of utility-expanding uses Judge Leval added the Supreme Court’s decision in Sony v. Universal, where the Court found that fair use permitted a consumer to record a television broadcast for viewing a more convenient time. Sony typically is treated as a paradigmatic example of a non-transformative fair use. Judge Leval, however, endorsed the Second Circuit’s interpretation earlier this year in Fox News v. TV Eyes that the consumers’ use in Sony was transformative: a use may be fair “if it utilizes technology to achieve the transformative purpose of improving the efficiency of delivering content without unreasonably encroaching on the commercial entitlements of the rights holder.”

Judge Leval found that ReDigi’s use was not transformative because “it provides neither criticism, commentary, nor information” about copyrighted works. Moreover, it did not “deliver the content in a more convenient and usable form to one who has acquired an entitlement to receive the content.” Instead, it just provided “a market for the resale of digital music files, which sales compete with sales of the same recorded music by the rights holder.” Further tilting the first factor against fair use was the commercial nature of ReDigi’s activity.

After cursory treatment of the second and third factors, the nature of the copyright work and the amount and substantiality of the portion used, Judge Leval examined the fourth factor, the effect of the use upon the potential market for or value of the copyrighted work, in more detail. Judge Leval noted that ReDigi made reproductions for “the purpose of resale in competition with the Plaintiffs’ market for the sale of their sound recordings.” ReDigi sold its copies “to the same consumers whose objective in purchasing was to acquire Plaintiffs’ music.” Judge Leval also distinguished the resale of physical copies from digital copies. “The digital files resold by ReDigi, although used, do not deteriorate the way printed books and physical records deteriorate.” The only difference between the copies sold by Capitol and the copies sold in ReDigi’s secondary market was that ReDigi’s copies were less expensive.

Judge Leval then weighed the four factors together. He found that “even if ReDigi is credited with some faint showing of a transformative purpose, that purpose is overwhelmed by the substantial harm ReDigi inflicts on the value of Plaintiffs’ copyrights through direct competition in the rights holders’ legitimate market, offering consumers a substitute for purchasing from the rights holders.”

At the end of the opinion, Judge Leval considered an argument raised in an amicus brief by copyright law professors that the first sale doctrine “must be read to vindicate purchasers’ ability to alienate digital copyright works…without regard to technological medium.” Judge Leval expressed reluctance to wade into this policy argument. “Courts are poorly equipped to assess the inevitably multifarious economic consequences that would result from such changes of law.” Furthermore, reading section 109(a) to accommodate digital resale “would exceed the proper exercise of the court’s authority.” Here, “Congress dictated the terms of the statutory entitlement.” Section 109(a) clearly “negates a claim of unauthorized distribution in violation of the author’s exclusive rights…but not a claim of unauthorized reproduction.” Accordingly, “if ReDigi and its champions have persuasive arguments in favor of the change of law they advocate, it is Congress they should persuade.

Implications for Libraries

The ReDigi decision requires reevaluation of CDL initiatives. The decision is the most analogous precedent to library sharing of digital files of copyrighted works. To be sure, a library would engage in CDL for noncommercial educational purposes, in contrast to ReDigi’s clearly commercial motivation. Moreover, a library could design its CDL program to make it as different from ReDigi’s as possible. For example, the library might engage in CDL only with respect to out of print scholarly monographs. Nonetheless, libraries cannot ignore the long shadow cast by the decision.

Furthermore, the decision calls into question the theoretical underpinnings of CDL. Specifically, CDL relies on the fair use right to replicate the first sale right in the digital environment. Judge Leval’s decision, however, could be read to suggest that the objectives of the first sale right cannot guide the fair use analysis.

The Library Copyright Alliance (“LCA”) filed an amicus brief in support of ReDigi, where we argued that the similarity between the use ReDigi sought to make and uses authorized by section 109(a) should have tilted the first fair use factor in favor of ReDigi. We noted that in Authors Guild v. HathiTrust, the Second Circuit used the rationale for a specific exception—17 U.S.C. § 121, which permits the making of accessible format copies for people who have print disabilities—to support a finding of a valid purpose under the first factor. Likewise, the Copyright Office has repeatedly based fair use conclusions on specific exceptions in the context of a rulemaking under section 1201 of the Digital Millennium Copyright Act, 17 U.S.C. § 1201. We urged the Second Circuit to recognize that the purpose behind the first sale right favored ReDigi in the first fair use factor analysis.

Unfortunately, Judge Leval did not address this argument. The lack of reference to this argument is somewhat surprising given that it was based on the Second Circuit’s reasoning in the HathiTrust decision, and that the Association of American Publishers filed an amicus brief specifically responding to LCA’s brief. Moreover, fair use was the obvious means of addressing the policy concerns raised by the copyright law professors in their amicus brief. Fair use could achieve the objectives of the first sale doctrine in the digital environment without Congress amending the statute.

In one passage, Judge Leval arguably disagreed with this argument. When responding to the law professors’ suggestion that section 109(a) be interpreted to apply in the digital context, Judge Leval stated “the copyright statute is a patchwork, sometimes varying from clause to clause, as between provisions for which Congress has taken control, dictating both policy and the details of its execution, and provisions in which Congress approximatively summarized common law developments, implicitly leaving further such developments to the courts. The paradigm of the latter category is § 107 on fair use.” This could be interpreted to imply that specific exceptions should not influence the first factor analysis—that specific exceptions and fair use should each stick to their own lanes.

On the other hand, by not rejecting it, Judge Leval arguably allowed the argument to live to fight another day. Additionally, Judge Leval’s copyright patchwork argument really doesn’t make much sense. The first sale right is a judge-made doctrine which was codified in section 109(a), just as the fair use right is a judge-made doctrine which was codified in section 107. Thus, it is completely appropriate for a court to consider the principles underlying the first sale right when applying the fair use right.

The status of the argument is particularly significant for libraries interested in engaging in CDL. CDL relies heavily on the notion that fair use enables libraries to replicate the first sale right in a digital context. In their White Paper on Controlled Digital Lending of Library Books, David Hansen and Kyle Courtney state,

The core concept with CDL is that it closely mimics the economic transaction that Congress has already provided for through the first sale doctrine under Section 109. The purpose of the use with CDL is to fulfill the statutory objectives and balance of rights already identified by Congress in Section 109, effectuating that balance considering a new technological use not contemplated at the time Section 109 was enacted. The crux of the proposition is that the purpose and intent of Section 109 should positively influence the “purpose and character” assessment in the fair use analysis.

This, of course, is the same theory LCA articulated in its amicus brief. LCA still believes this theory is correct, and will continue believing in its correctness unless and until the Supreme Court explicitly rejects it. However, Judge Leval’s failure to even acknowledge the theory when he had the opportunity to do so should cause libraries to reevaluate their CDL initiatives. In particular, they need to consider whether their CDL programs are likely to pass muster under a more traditional fair use analysis that does not rely on section 109 exercising a positive influence on the first factor.

Eleventh Circuit Reverses and Remands Georgia State E-Reserves Case (Again)

The long saga of the Georgia State University (GSU) e-reserves case continues as the Court of Appeals for the Eleventh Circuit reversed the district court’s ruling which had found that the vast majority of GSU’s use of works in its e-reserves constituted a fair use. This is the second time the Eleventh Circuit has reviewed the case, and the second time it has reversed.

In 2008, publishers sued GSU for copyright infringement, arguing that the use of unlicensed excerpts of copyrighted works in the e-reserves constituted infringement. GSU defended itself, relying on the right of fair use. In the first bench trial, the district court ruled in favor of fair use for 43 of the 48 cases of alleged infringement. The Eleventh Circuit reversed and remanded the case in 2014, directing the lower court to re-examine its weight to market substitution and re-evaluate the four fair use factors holistically, rather than taking an arithmetic approach (i.e., if three fair use factors favor the use, but one disfavors it, fair use should always apply). On remand, the district court re-evaluated the four factors and found that 44 of the 48 cases constituted fair use. In her analysis, Judge Evans assigned each factor a weight: “The Court estimates the initial, approximate respective weights of the four factors as follows: 25% for factor one, 5% for factor two, 30% for factor three, and 40% for factor four.” The publishers again appealed to the Eleventh Circuit, which heard the case in 2017. (Here’s a link to ARL’s amicus brief in the second appeal.)

On October 19, 2018, the Eleventh Circuit released its 25 page opinion—more than a year after hearing oral arguments in the case—finding that the district court again erred in its evaluation of fair use. The Eleventh Circuit suggests that the district court was only mandated to re-evaluate its analysis on the second and third factors, but had instead also re-evaluated its analysis on factor four (in which the district court found in the first trial that in 31 cases, the fourth fair use factor weighed against fair use).

Additionally, the Eleventh Circuit points out that “The district court again applied a mathematical formula in its overall analysis of fair use,” which it had been instructed against. Although the district court couched the given weights as “initial” and “approximate,” the Eleventh Circuit found that the district court only adjusted these factors in four instances and di not adjust the other factors in the overall analysis. Thus, “We conclude that the district court’s quantitative rubric was an improper substitute for a qualitative consideration of each instance of copying in the light of its particular facts.” The Eleventh Circuit has remanded the case, directing the district court to use a holistic approach to fair use, and avoid any mathematical approach with respect to the four factors.

Another issue the Eleventh Circuit opinion addresses is whether the cost of purchasing licenses affects the third factor; the district court in the second trial considered the price of use on two ocassions. The Eleventh Circuit rules that price should not be taken into account when evaluating the amount and substantiality of the portion of the work used.

While the Eleventh Circuit reversed and remanded on the above issues, it affirmed the district court’s decision not to reopen the record. Publishers in 2015 filed a motion to reopen, asserting the need to introduce “Evidence of GSU’s ongoing conduct (e.g. its use of E-Reserves during the most recent academic term)” as well as evidence of the availability of digital licenses. Here, the Eleventh Circuit notes that this decision is within the discretion of the trial court.

Kevin Smith posted about the GSU case on In the Open, with an excellent summary of what the Eleventh Circuit’s opinion (as well as its last opinion) does not do, and what, as a result, the publishers have lost on:

…But the big principles that the publishers were trying to gain are all lost. There will be no sweeping injunction, nor any broad assertion that e-reserves always require a license. The library community will still have learned that non-profit educational use is favored under the first fair use factor even when that use is not transformative. The best the publisher plaintiffs can hope for is a split decision, and maybe the chance to avoid paying GSU’s costs, but the real victories, for fair use and for libraries, have already been won.

Fair Use/Fair Dealing Week 2018 Highlights Balance in the Copyright System

*Cross-posted from ARL News*

The fifth annual Fair Use/Fair Dealing Week took place February 26–March 2, 2018, growing to 153 participating organizations—as well as numerous individuals—celebrating the important and flexible doctrines of fair use and fair dealing worldwide. This year’s event was organized by the Association of Research Libraries (ARL) and participants included universities, libraries, library associations, and many other organizations, such as Authors Alliance, the Center for Democracy & Technology, the Electronic Frontier Foundation, the R Street Institute, and Re:Create. Sixty ARL member institutions contributed a wide range of resources this year. Fair Use/Fair Dealing Week was observed around the globe by participants in such countries as Australia, Canada, Colombia, Greece, and the United States.

Throughout the week, participants celebrated the essential limitations and exceptions to copyright that fair use and fair dealing provide, allowing the use of copyrighted materials without permission from the copyright holder under certain circumstances. While fair use and fair dealing are employed on a daily basis, Fair Use/Fair Dealing Week is a time to promote and discuss opportunities presented, share successful stories, and explain these doctrines.

Each day, new blog posts and other resources were produced and shared and institutions hosted a variety of live events, such as panel discussions, film screenings, button- and kaleidocycle-making stations and more. Daily roundups and additional resources are available on the Fair Use/Fair Dealing Week website. There were 90 news and blog posts, three infographics, three videos, a podcast, and more shared over the course of the week. Below are some highlights.

Fair Use/Fair Dealing Week 2019 will take place February 25–March 1. Plan to participate!

Resources

ARL released the infographic, “Fair Use Promotes the Creation of New Knowledge.”

The Canadian Association of Research Libraries (CARL) released a double-sided infographic—one side pertaining to fair dealing generally and one on fair dealing and education in Canada—“Fair Dealing in Canada: Myths & Facts.” Additionally, CARL launched an expanded website and social media campaign for Fair Dealing Week; the new website includes a compelling testimonials page, highlighting the importance of fair dealing from many different sources.

The International Federation of Library Associations and Institutions (IFLA) released the infographic, “Fair Use and Fair Dealing for Libraries.”

Harvard University released a new comic book, this one on the Authors Guild v. Google case.

Creative Commons Australia produced a Storify recap of its favorite posts on Fair Use/Fair Dealing Week.

Audio/Video

Re:Create released a new episode of its Copy This Podcast, “Copying is Human Nature,” which features Laura Quilter, copyright and information policy librarian at University of Massachusetts Amherst.

The Association of College & Research Libraries (ACRL) released a recording of its webinar with Carla Myers, scholarly communication coordinator at Miami University Libraries in Ohio, “Can’t You Just Say Yes? Answering Copyright Questions about Fair Use for Patrons.”

Massachusetts Institute for Technology created a printable fair use kaleidocycle with video instructions on how to create it.

University of Winnipeg released a Fair Dealing Week video.

University of Lethbridge posted a video about “Fair Dealing in the Classroom.”

News/Blog Posts

The Center for Democracy & Technology posted a clever “conversation” about fair use entirely made up of quotations from other papers, statements, court opinions and more, entitled “I Didn’t Write This Conversation about Fair Use.”

R Street Institute posted, “The Creative Side of R Street,” illustrated with over a dozen GIFs.

There were also several posts related to fair use and trade agreements, including one by attorney Jonathan Band; one by Sean Flynn, associate director for the Program on Information Justice and Intellectual Property at American University Washington College of Law; and one by Timothy Vollmer, senior manager of public policy at Creative Commons.

Here’s an interview with copyright expert Peter Jaszi, which includes a question about the current work on a Code of Best Practices in Fair Use for Software Preservation. The National Library of Medicine’s blog post covers a range of relevant fair use issues and also references the software preservation project.

Aligning with ARL’s infographic theme for 2018, there were quite a few posts about fair use and user-generated content or new knowledge, including the University of San Francisco’s post on fan fiction; University of Virginia’s event on “The State of the Remix @UVA;” a post on the Copyright at Harvard Library blog featuring mash-up videos and entitled “Fair Use and User Generated Content;” Re:Create’s Creator Profile featuring Sarah Loch, a fanfiction writer; the Organization for Transformative Works discussion of the Copy Me project with two creators interested in fan works; and this post by Jonathan Band about the musical Something Rotten.

The Authors Alliance posted several times during the week, including an updated Fair Use FAQ and an announcement of the print release of the guide to Fair Use for Nonfiction Authors. The Center for Media and Social Impact also had several blog posts throughout the week.

In Canada, University of Toronto law professor Ariel Katz shared a draft of his forthcoming book chapter, “Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?” Michael Geist, law professor at University of Ottawa, posted each day of the week.

Fair Use/Fair Dealing Week 2018: Day 5 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 5 of Fair Use/Fair Dealing Week 2018! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Resources:

Massachusetts Institute of Technology, Make a Fair Use Kaleidocycle

Infographics

IFLA, Fair Use and Fair Dealing for Libraries

Blog Posts

Angel Antkers & Susan Miller on Authors Alliance blog, “Fair Use and the Digital Millennium Copyright Act” cross posted on Colorado Law Samuelson-Glushko Technology Law & Policy Clinic

Australia Digital Alliance, “It’s an important Fair Use/Fair Dealing Week for Australia

Canadian Association of Research Libraries, “Fair Dealing Week 2018 Wrap-Up

Krista Cox on ARL Policy Notes, “Fair Use and Captioning for Those Who Are Hearing Impaired

Michael Geist, “Fair Dealing and the Right to Read: The Case of Blacklock’s Reporter v. Canada (Attorney General)

Anne Gilliland on Scholarly Communications Office Intersections, “Grateful for Fair Use: Combining Text and Images

IP Quail, “Fair Use/Fair Dealing

Colleen Lyon on Open Access at UT, “Fair Use Wrap Up

Carla S. Myers on Copyright at Harvard Library, “Day 5: Fair Use and Course Reserves: Fact and Fiction

Open Library Greece, “Fair Day #fairuseweek 2018: February 26-March 2

Claudia Rebaza on the Organization for Transformative Works, “OTW Guest Post: Ioana Pelebatai & Alex Lungu

Katharine Trendacosta on the Electronic Frontier Foundation Deeplinks, “Fair Use Protects So Much More Than Many Realize

Fair Use and Captioning for Those Who are Hearing Impaired

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Under the Digital Millennium Copyright Act (DMCA), proponents must file for an exemption every three years to allow for the circumvention of technological protection measures (TPMs) to do things that are otherwise completely lawful under copyright. For example, groups representing those who are visually impaired must ask for the right to circumvent TPMs in order to enable the text-to-speech function on e-readers, even though they do not have to ask for permission to create accessible format copy works for hard copy materials. Even if the use is clearly a fair use, because of ambiguity in the text of the DMCA, individuals or groups must request exemptions for non-infringing uses.

ARL, as part of the Library Copyright Alliance (LCA), is consistently involved in the triennial rulemaking process. Among other petitions, LCA joined in a request to allow for circumvention to create accessible formats of motion pictures to those with disabilities, included through captions and audio descriptions.

Recently, rightsholders submitted opposition to exemption requests and the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA) and the Association of American Publishers (AAP) oppose the exemption for captioning.

The MPAA argues against captioning qualifying as a fair use. In doing so, the MPAA relies on the Register of Copyright’s conclusion in the 2012 rulemaking process that, “neither Sony-Betamax nor the Copyright Act’s legislative history suggests a rule that all reproduction, adaptation and distribution for the purpose of accessibility is fair use.” The MPAA also criticizes the citation of Authors Guild v. HathiTrust as authority favoring a fair use determination.

The MPAA claims that HathiTrust is not applicable because HathiTrust was making text accessible for people that have print disabilities rather than hearing disabilities:

In HathiTrust, defendants were, among other things, making “text-to-speech” versions of literary works so that they would be accessible to the print disabled. Altering motion pictures is a significantly different undertaking, the result of which is likely a derivative work that involves a creative interpretation of the underlying work. Thus, the proponent’s reliance on HathiTrust is misplaced.

While it is true that the facts in HathiTrust involved accessible formats for those with print disabilities rather than those with hearing impairments, the decision in HathiTrust is still highly relevant. Ultimately, the purpose in creating an accessible format work for someone who is visually impaired and an accessible format work for someone who is hearing impaired is the same: to allow someone with a disability to have access to information and culture. Without accessible formats, those with hearing impairments—just as those with visual impairments—would lack access. Indeed, the court in HathiTrust cites the Supreme Court case, Sony Corp. v. Universal City Studios for the proposition that creating an accessible format work for the convenience of a person with a visual disability does not require anything more than the purpose of entertaining or informing to render the use fair.

Creation of captions for those with hearing impairments is clearly analogous to the creation of a Braille or audio format for someone with a visual impairment. It’s unfortunate that rightholders would argue against accessibility for the hearing impaired as a fair use. Without available captions, those who are deaf or hearing impaired do not have equal access to information.

Fair Use/Fair Dealing Week 2018: Day 4 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 4 of Fair Use/Fair Dealing Week 2018! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Videos

ACRL, Webcast Archive of ACRL Presents: “Can’t you just say Yes?” Answering Copyright Questions About Fair Use for Patrons

University of Lethbridge Library, “Fair Dealing in the Classroom

Blog Posts

Authors Alliance, “Revisiting Georgia State: Fair Use and Academic Incentives

Jonathan Band on ARL Policy Notes, “Can’t Get Away From Fair Use

Gabrielle Barr, Christie Moffatt and Rebecca Goodwin on NLM Musings From the Mezzanine, “NLM Celebrates Fair Use Week

Lindsay Boyd on Canadian Alliance of Student Associations, “Fair Dealing in Education: A Firm Foundation Supporting Canadian Educational Content

Brandon Butler on The Taper, “How Is an App Like a Player Piano? And Does That Help the Fair Use Case for Software Preservation?

Krista L. Cox on Above the Law, “Celebrating Fair Use: Interview with Peter Jaszi” cross posted, in part, to ARL Policy Notes

Creative Commons Australia, “Storify: 2018 Fair Use Week Recap: useful for “aus” to think about

Sean Flynn on InfoJustice, “Comments to the Mexican Senate on Copyright Provisions in the NAFTA Renegotiation

Michael Geist, “Fair Dealing Support for News Reporting and Public Debate: The Case of Warman and National Post v. Fournier

Kevin Gunn on Catholic University of America University Libraries News and Events, “Fair Use Week 2018

Michael Lemley on Organization for Transformative Works, “Fanworks, Fair Use and Fair Dealing

Amy Manns on DeSales University News, “On Display at Trexler Library: Fair Use Week

Re:Create, “Creator Profile: Sarah Loch, Fanfiction Writer

University of Manitoba Health Sciences Libraries News, “Fair Dealing Questions? Ask the Copyright Office!

Micah Zeller on Washington University in St. Louis Scholarly Communication, “Fair Use and WashU: Part 2

Can’t Get Away From Fair Use

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*This is a guest blog post by Jonathan Band, policybandwidth*

Copyright owners accuse library advocates of having fair use on the brain, but the truth is that we just can’t get away from fair use. Over Presidents’ Day Weekend, I saw the touring production of Something Rotten with my son at the National Theatre in Washington DC. I knew nothing about the show before I went, other than that my wife thought I would love it, even though I don’t care for musicals; and that the title was an allusion to the line in Shakespeare’s Hamlet that “Something is rotten in the State of Denmark.”

Well I did love it, and not only because it was very entertaining. It also demonstrated the importance of the fair use and the public domain to new creative expression. The show concerns the efforts of two brothers in London in the 1590s struggling to compete with the popularity of William Shakespeare. Desperate to find an idea for a new play, one brother consults a soothsayer to learn what sorts of plays would be popular in the future, and what would be the subject of Shakespeare’s next hit. The soothsayer informs him that audiences will love musicals, and that Shakespeare’s next play will involve eggs, ghosts, and danish.

The brother is skeptical about the concept of musicals—why would actors suddenly start to sing? This skepticism leads to an eight-minute song that contains lyrics, melodies, and visual references to at least twenty musicals, including Avenue Q, The Fantasticks, Les Miserables, Fascinating Rhythm, West Side Story, Music Man, Seussical, South Pacific, Chicago, Evita, Rent, Jesus Christ Superstar, Sunday in the Park with George, Annie, Guys & Dolls, Sweet Charity, Hello Dolly, Cats, Sweeny Todd, and A Chorus Line. The musical the brothers ultimately produce (Omlette: the Musical) contains lines or melodies from Fiddler on the Roof, The Producers, Phantom of the Opera, Sound of Music, Mary Poppins, and Oklahoma.

Moreover, Something Rotten contains numerous quotations and characters from Hamlet, Romeo and Juliet, The Merchant of Venice, A Midsummer Night’s Dream, and Henry IV.

In short, without fair use and copyright term, Something Rotten could not have been created and produced. And it wasn’t exactly a fringe production. It had a run of 742 performances on Broadway, and it was nominated for ten Tony Awards. The actor who played Shakespeare, Christian Borle, won the Tony for best featured actor in a musical.

Existing expression is the raw material for new expression. And for new expression to be fresh and topical, authors must be able to use works more recent than Shakespeare’s.

Fair Use/Fair Dealing Week 2018: Day 2 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 2 of Fair Use/Fair Dealing Week 2018! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Podcasts:

ReCreate: Copy This Podcast Episode 12: Copying is Human Nature

Blog Posts:

Rachel Appel and Gabriel Galson on Scholarly Communication @ Temple, “The Importance of Fair Use and Standardized Rights Statements for Digital Cultural Heritage Institutions” cross-posted to PA Digital

Ashland University Library News, “Fair Use Week: Infographic

Jonathan Band on Disruptive Competition Project, “The Second Circuit’s Fair and Balanced Fair Use Decision in Fox News v. TVEyes

Krista Cox on Copyright at Harvard Library, “Day 2: Fair Use and User Generated Content” cross-posted to ARL Policy Notes.

Lael Ensor-Bennett on The Sheridan Libraries Blog, “Celebrate Fair Use Week . . . With Images!

Tyler Garling on The Taper, “Guest Blog: Student Remixer Tyler Garling on the Cultural Shift (Back) Toward Sharing

Michael Geist, “Why Far Dealing Benefits Creators: The Case of a Room Full of Spoons

Anne Gillaland on University of North Carolina Scholarly Communications Office Intersections, “What Does it Mean to Be Transformative

Julie Grob on UH Libraries News, “Fair Use Week: Drake’s Sampling Ruled Transformative

Ariel Katz, “Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?”

Amanda Levendowski on Authors Alliance, “Fair Use for Fairer AI

Stephanie Lewin-Lane on UH Libraries News, “Fair Use Week: Preservation Copies of Sound Recordings

Colleen Lyon on Open Access at UT, “Fair Use for Nonfiction Authors

Marlo MacKay on The LibVine, “Fair Dealing Week: Fair Dealing, Myths & Facts

Emily O’Connell on the CMSi blog, “Rethinking Fair Use: Rebekah Modrak and the Art of Creative Critique

Emily O’Connell on the CMSi blog, “Happy Fair Use Week! And Where to Find the Good Stuff

University of Manitoba, “Be fair in using copyrighted materials! The University recognizes Fair Dealing Week

Fair Use and User Generated Content

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*Cross-posted from Copyright at Harvard Library*

In keeping with tradition, ARL has released a new infographic in celebration of Fair Use/Fair Dealing Week.  While I’m a big fan of all of our past infographics (Fair Use FundamentalsFair Use in the Day in the Life of College Student and Fair Use Myths and Facts), here’s what I love about this year’s infographic, Fair Use Promotes the Creation of New Knowledge: it reminds us that fair use isn’t just about someone using existing information, but about relying on it for new creations. Fair use facilitates all types of new knowledge, from news reporting to the creation of innovative technological products, to scholarship.

Screenshot 2018-02-25 19.08.46

In the digital environment, in particular, creating new high-quality content and disseminating it widely has become easier.  User-generated content is highly popular and often relies on fair use.  While the Fair Use Promotes the Creation of New Knowledgeinfographic contains several different examples of the type of new information and culture that fair use enables, I want to highlight some great examples of user-generated content, such as fan fiction, remix songs and mashup videos.

One of my favorite examples is this video by Movie Remixer on Youtube which mashes up 66 movie dance scenes from 60 different movies with Justin Timberlake’s 2016 song, “Can’t Stop the Feeling.”  The clips are from a very diverse set of movies, ranging from old musicals like Singin’ in the Rain and the King and I, to classics like The Red Shoes and Babes in Arms, to more recent Academy Award Best Picture Winners like Slumdog Millionaire and Silver Linings Playbook, to 1990s comedies like Mrs. Doubtfire and The Mask.  The mashup is highly creative and what I found to be particularly impressive was that it uses so many movies that have nothing to do with dancing and that the user/creator didn’t speed or slow down any of the clips to fit the rhythm of the song.

Here’s another excellent mashup, entitled “Mean Disney Girls,” which uses dialogue from the 2004 movie Mean Girls and merges it with clips featuring Disney princesses from CinderellaSleeping BeautyThe Little Mermaid and others.  In an example of mashups that go viral, this video has more than 13 million views on YouTube.

User generated content is so popular on YouTube that back in 2015, a Google blog post noted that, “More than 400 hours of video are uploaded to YouTube every minute,” including videos relying on fair use.  Because content on the web is often the subject of DMCA takedowns, even if the work is fair use, that same blog post announced:

YouTube will now protect some of the best examples of fair use on YouTube by agreeing to defend them in court if necessary.  We are offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns.  With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.

While the Ninth Circuit has found that copyright holders must consider fair use in issuing takedown notices in Lenz v. Universal Music Corp., also known as the “dancing baby” case, with automated takedown notices being issued by corporate rightholders, this many not always be the case.

This year, during Fair Use/Fair Dealing Week, I’m celebrating all of the great new works we benefit from thanks to fair use.

Fair Use/Fair Dealing Week 2018: Day 1 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 1 of Fair Use/Fair Dealing Week 2018! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Resources:

Infographic: Fair Use Promotes the Creation of New Knowledge

Infographic: Fair Dealing in Canada Myths & Facts/Fair Dealing in Education Myths & Facts

Fair Dealing Testimonials on Fair Dealing Canada 

Videos:

University of Winnipeg Library, “Fair Dealing Week

Contests:

University of Waterloo, Create-your-own-meme contest

Blog Posts:

Stan Adams on Center for Democracy and Technology Blog, “I Didn’t Write This Conversation About Fair Use

Berkman Klein Center for Internet & Society, “Fair Use/Fair Dealing Week – Week of Feb 26, 2018!

Hallie Brodie on The Quad, “Consider This: Fair Dealing Under Review

Jonathan Band on ARL Policy Notes, “Balanced Copyright in CPTPP and NAFTA

Brandon Butler on The Taper, “Fair Use Week 2018 Kickoff: Getting Ready for ‘The State of the Remix @UVA’ by Revisiting the Renaissance

Carnegie Mellon University Libraries, “Fair Use Week 2018

Canadian Association of Research Libraries, “CARL Launches Expanded Website and Social Media Campaign for Fair Dealing Week 2018” cross posted on the Quebec Library Association

Jessica Clark on George Mason University Libraries News, “Fair Use/Fair Dealing Week 2018

Krista Cox on ARL Policy Notes, “Fair Use Promotes Creation of New Knowledge

Katherine Dunn on MIT Libraries News & Events, “Happy Fair Use Week 2018

Lael Ensor-Bennet on The Sheridan Libraries Blog, “Celebrate Fair Use Week . . . With Images!

Vince Frieden on Miami University Libraries Blog, “University Libraries Recognize Fair Use Week Feb. 26- March 2

Christine Fruin on ATLA Newsletter, “The SCOOP: Fair Use Week

Michael Geist, “Fair Dealing Fake News: When Seeking a Refund Arising from Copyright Over-Payments Becomes a ‘Legal Attack on Writers’

Anne Gilliland on University of North Carolina Scholarly Communications Office Intersections, “Fair Use Week 2018: Creation and Communication in the Academy”

Teresa Hackett on the EIFL blog, “EIFL Celebrates Fair Use/Fair Dealing Week

Harvard Library, “Fair Use Week Returns

Library at Bryant University, “‘Fair Use/Fair Dealing Week’ Starts Now! How Can You Participate?

Colleen Lyon on Open Access at UT Austin, “It’s Fair Use Week!

Marlo MacKay on The Libvine, “Fair Dealing Week: What Is Fair Dealing?”

Matthew on In the Know @ the Bentley Library, “Celebrate Fair Use Week

MIT Libraries Scholarly Publishing, “Spotlight: Happy Fair Use Week 2018

Emily O’Connell on the CMSi blog, “Fair Use in Film Courses: Broderick Fox on Empowering Creators

Meera Nair on Fair Duty, “Fair Dealing Week 2018

New Media Rights, “Fair Use Week 2018 Reminds Us Why Fair Use is Worth Protecting

Judy Rabinowitz on What’s New @HHSL, “And now, in honor of Fair Use Week, a poem

Charlotte Roh on Gleeson Gleanings, “Fan Fiction and Fair Use/Fair Dealing Week 2018

Kerry Sheehan on Electronic Frontier Foundation, “Fair Use as Consumer Protection

Simon Fraser University Library, “Happy Fair Dealing Week!

University of Lethbridge, “Fair Dealing Week, February 26-March 2, 2018

Jane Thaler and Melissa Cantrell on University of Colorado Boulder, “A ‘Fair’ to Remember

Visual Resources Association, “Boon or Bane? The Four Fair Use Factors vs. The 10% Rule

Timothy Vollmer in InfoJustice, “’Free Trade’ Agreements Would Be More Fair With Fair Use at Their Core