Tag Archives: jonathan band

Thanks, But No Thanks

*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 post is brought to you by guest blogger, Jonathan Band of policybandwidth*

Over the past decade, policymakers on both sides of the Atlantic have devoted significant attention to finding ways to permit the use of orphan works: works whose copyright owners are difficult to identify or locate. Library associations in both Europe and the United States initially supported these efforts strongly. In Europe, these efforts culminated in the adoption of an Orphan Works Directive in 2012. In the United States, by contrast, legislation stalled in 2008. Although the U.S. Copyright Office continues to push for orphan works legislation, U.S. library associations no longer seek such relief. This is due to changes in the copyright legal landscape, particularly the evolving case law concerning fair use. This paper explores the different trajectories of orphan works legislation in the EU and the United States, with special emphasis on how U.S. libraries changed their position in response to legal developments on the ground.

The full paper is available here.

USPTO White Paper on Remixes, First Sale, and Statutory Damages

*Guest post by Jonathan Band, policybandwidth*

Today the Department of Commerce Internet Policy Task Force today released its White Paper on Remixes, First Sale, and Statutory Damages. (This follows on from the Green Paper issued in 2013.) The Task Force has proposed several significant changes to statutory damages. It recommends that the statutory damages provision be amended: 1) to incorporate a list of factors for courts and juries to consider when determining the amount of a statutory damages award; 2) to expand the eligibility for lower innocent infringement awards when the copyright owner uses a copyright notice; and 3) to give courts discretion to assess statutory damages other than on a strict per-work basis in cases involving non-willful secondary infringement for online services offering a large number of works. These changes, if adopted, would make the statutory damages framework much less burdensome. The Task Force does not recommend any statutory changes relating to remixes or digital first sale, but it proposes multi-stakeholder negotiations related to these issues. The White Paper contains numerous references to comments submitted by the Library Copyright Alliance (which consists of ARL, ALA, and ACRL) and individual libraries.

The message at the beginning of the White Paper from Commerce Secretary Penny Pritzker states that “a healthy copyright system strikes important balances between rights and exceptions–delineating what is protectable and what is not, determining which types of uses require permission or payment, and establishing appropriate frameworks to effectively protect rights and foster creativity and innovation. These balances must be reviewed regularly to ensure they continue to function well as a foundation for America’s culture and economy.”

Digital First Sale. The Task Force does not recommend statutory amendment to facilitate digital first sale. It says that it was hard to measure the extent of consumer loss resulting from the absence of a digital first sale provision. Further, it feels that the market has responded with business models such as providing access to large quantities of digital works, e.g., Netflix. At the same time, digital first sale could cause harm to the primary market. Accordingly, the Task Force sees no need to amend the Act at this time.

However, the Task Force notes the problems libraries had experienced with the lending of e-books. The Task Force observes that the situation appears to be improving, and that government intervention could interfere with the development of innovative solutions. However, “if over time it becomes apparent that libraries have been unable to appropriately serve their patrons due to overly restrictive terms imposed by publishers, further action may be advisable (such as convening library and publisher stakeholders to develop best practices, or amending the Copyright Act).” Similarly, the Task Force recognizes that publishers might interfere with library preservation. This could be addressed, if necessary, in the context of updating section 108.

Remixes. The White Paper does not recommend any statutory changes to facilitate the creation of remixes. The Task Force recognizes that fair use is the central mechanism for permitting remixes, and believes that fair use performs this job well. It rejects compulsory licensing schemes as unnecessary. At the same time, the Task Force has suggestions for making it easier for remixers to understand what uses are fair and to obtain a license when they wish to do so. While recognizing the role of single sector best practices (e.g., the best practices organized by AU), it expresses a preference for negotiated guidelines for remixing. Although acknowledging the challenge of different stakeholders reaching an agreement on guidelines, it believes they are achievable if the scope of any guideline is narrow enough.

The Task Force also encourages the development of voluntary licensing systems. It acknowledges the concern the Library Copyright Alliance raised that licensing systems might undermine fair use, but disagrees with that assessment in a helpful way. In essence, it argues that the fourth fair use factor receives less weight in cases of transformative uses. Thus, the existence of a licensing system should not weaken a remixer’s fair use argument.

The Task Force recognizes that users would benefit from clarification of the terms of EULAs, and recommends a multi-stakeholder process for better communicating terms to the public (e.g., developing standardized notices or alternatives to a “buy” button).

Statutory Damages. As noted above, the White Paper’s most important contribution is in the area of statutory damages. The Task Force recognizes that the existing framework can be applied inconsistently because courts and juries have insufficient guidance. Moreover, the potential of draconian damages deters development of innovative technologies. At the same time, the Task Force does not seem convinced that there was a copyright troll problem.

The Task Force’s first proposal is to codify model jury instructions concerning statutory damages adopted by several circuits. The instructions include a list of factors to consider when determining the amount of a statutory damages award. These factors would help insure that the damages award is related to the actual harm and that the defendant’s state of mind and financial condition are given appropriate weight. These factors would improve consistency and transparency in the application of statutory damages.

The second proposal is to expand the eligibility for lower innocent infringement awards ($200 as opposed to $750). Currently, under sections 401(d) and 402(d), the innocent infringer defense is not available when the copyright owner places a copyright notice on the work. The Task Force proposes eliminating the preclusive effect of notice on the innocent infringement defense. At the same time, the Task Force rejects the Library Copyright Alliance proposal to expand the remission of damages when a library or archives has a good faith belief that its copying was a fair use. Currently, this provision applies only to the reproduction right, not the other exclusive rights. The Task Force believes that the libraries had not demonstrated need for this amendment. If the problem becomes more evident, the Task Force suggests addressing it in the context of section 108 reform.

The third proposal is to give courts discretion to assess statutory damages other than on a strict per-work basis in cases involving non-willful secondary infringement for online services offering a large number of works. This would reduce the threat statutory damages pose to innovative Internet companies.

Finally, the Task Force expresses support for the establishment of a small claims court for copyright infringement. The Task Force evidently believes that such a court could benefit defendants by diverting smaller cases away from a venue where significant statutory damages can be assessed.

Edited: January 28, 5:00pm

Fair Use in a Day in a Life of a Legislative Assistant

*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.*  

While we are celebrating Fair Use Week from February 23-27, every week is fair use week (in fact, every day is fair use day).  This important doctrine is critical to the ability to teach, learn, share information and use every day technologies.  Fair uses are all around us.

Earlier this week, Fred von Lohmann explained how fair use enables every day technology.  Today, Jonathan Band gives a sample day in the life of a legislative assistant, showing just how often fair use is employed in a daily basis.  Read all about Fair Use in a Day in a Life of a Legislative Assistant and visit fairuseweek.org for other great resources!

Fair and Balanced Result in New Jersey Media Group v. Fox News Network

*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.  

Today’s blog post is brought to you by guest blogger, Jonathan Band.  Cross-posted to fairuseweek.org *

Large copyright owners oppose expansive applications of fair use except, of course, when they are sued for copyright infringement. In recent years, the National Football League, Reed Elsevier, and Sony Pictures have all vigorously raised fair use in infringement cases in which they were defendants. As a proponent of strong fair use rights, I naturally want fair use to prevail whenever it is asserted. Nonetheless, as a long time soldier in the trenches of the copyright wars, I must confess that I derive a certain satisfaction from courts rejecting fair use defenses raised by large media companies. But putting aside these petty personal feelings, the mere assertion of fair use by large copyright owners is helpful in the advocacy battles surrounding fair use; it underscores how essential fair use is to the proper functioning of the copyright system. Even more important, the rejection of fair use claims in appropriate cases demonstrates that fair use has not run amok and that the courts are not out of control. (In this vein see my post How Fair Use Prevailed in the Harry Potter Case.)

Which brings us to the recent decision of a federal district court in New York denying a motion for summary judgment filed by Fox News in a copyright infringement suit brought against it by the New Jersey Media Group (NJMG). Thomas Franklin, a photojournalist employed by NJMG, captured an image of three firemen raising an American flag at the site of World Trade Center just hours after the attack on September 11, 2001. NJMG published the image the next day on the front page of one of its newspapers, and in short order the image was licensed by many other publications for over $1 million and became one of the more recognizable images relating to 9/11. At some point, an unknown person posted on the Internet the 9/11 firefighter photograph juxtaposed with the iconic World War II photograph of Marines raising the American flag at Iwo Jima. A production assistant on the Fox News program Justice with Judge Jeanine found this combined 9/11-World War II image and posted it on the program’s Facebook page on the twelfth anniversary of 9/11 (September 11, 2013) with phrase #neverforget. After NJMG sued for copyright infringement, Fox News moved for summary judgment, arguing that its posting of the 9/11 photograph was permitted under the fair use doctrine.

On February 10, 2015, Federal District Court Judge Ramos of the Southern District of New York denied Fox News’ motion. Much of the decision centered on whether the use was transformative under the first fair use factor (purpose and character of the use). Fox News argued that its use was transformative because the connection it drew between 9/11 and World War II was commentary. Further, the addition of the phrase #neverforget signaled Fox News’ participation in the ongoing global discussion of 9/11. While Franklin’s purpose in photographing the image was to report the news of the day, Fox News’ use was designed to commemorate 9/11 and link the heroic acts of the first responders that day to those of the Marines in World War II.

The court rejected Fox News’ contentions. First, it found that the various physical transformations Fox made, such as adding the #neverforget phrase or cropping the image, were not sufficient to merit protection as fair use, particularly when compared to the more extensive physical transformations in the appropriation art cases Cariou v. Prince or Blanch v. Koons.

Additionally, while the court acknowledged that the combined image of the 9/11 photograph and the Iwo Jima photograph altered the content and message of the original 9/11 photograph, it did so “only minimally.” It certainly didn’t present “an entirely different aesthetic” from the 9/11 photograph. Further, the court doubted “whether the commentary Fox News wished to convey created anything new at all, much less anything transformative.”

At this point, the court went on a bit of a detour. The court noted that this was a secondary use of a secondary use. The combined image was not original to Fox: “some other person first thought to combine the two photographs.” Moreover, the phrase “#neverforget” was ubiquitous on social media that day. “Thus Fox News’ commentary, if such it was, merely amounted to exclaiming ‘Me too.’” Professor Rebecca Tushnet of the Georgetown University Law Center has criticized this aspect of the decision, noting that “if something has been transformed enough to create a new meaning or message such that the initial speaker is making a fair use, then the transformativeness factor must weigh in exactly the same way for a publisher or republisher.” In other words, if the creation of the combined work was a transformative use because of the commentary it made, then Fox’s republication was also fair use because it was making the same commentary. Notwithstanding the court’s questionable reasoning on this point, the court’s underlying skepticism about whether the combined image was sufficiently transformative in the first place was well founded.

The court next considered whether Fox News sought to profit from its use of the work. Fox argued that its use was not commercial because it did not capture any revenue as a direct consequence of its use. NJMG, on the other hand, asserted that Fox used the image mainly for the purpose of promoting the Justice with Judge Jeanine show. The court concluded that because there was a question of material fact as to whether Fox posted the image for the expressive purpose of commenting on 9/11 or for the commercial purpose of promoting the program, it could not decide this issue as a matter of law on summary judgment.

The court had little difficulty concluding that the fourth fair use factor, the effect of the use on the market for the work, weighed against fair use. The court reiterated that the use was not transformative, but “instead relies upon the Work’s original subjects and setting to retain the Work’s historical meaning.” This historical meaning has allowed NJMG to receive more than $1 million in licensing revenue. The court stressed that NJMG maintains a program for licensing the photograph to media entities for precisely the sort of editorial purpose Fox claims it intended to make here. The court observed that “the continued demand for the Work for editorial use suggests that the purported use for commentary here was…paradigmatic of a primary market for the photograph.”

In its defense, Fox argued that there was no evidence that NJMG actually lost any licensing revenue as a result of the use, or that Fox was trying to usurp the market for the work. The court responded that because the editorial use Fox claims it intended to make was a primary market for the work, Fox’s use “poses a very real danger that other such media organizations will forgo licensing fees for the Work and instead opt to use the Combined Image at no cost.” Thus, the danger of Fox’s use went far beyond the one-time loss of revenue.

Aside from the “secondary use of a secondary use” issue, there is nothing particularly controversial or harmful about the court’s analysis of the first and fourth factors. Indeed, Fox’s contention that its use was transformative and didn’t affect the market for the work was a bit of a stretch.

Meanwhile, the court’s analysis of the second factor, the nature of the work, could prove helpful in future fair use cases. Fox argued that the second factor tilted toward fair use because the work was factual in nature. Fox claimed that NJMG “cannot claim ownership in the firefighter’s actions, the expressions on their faces, their ashen uniforms, or the American flag.” NJMG responded that the photograph was a “stunning example of photojournalism” that involved many creative choices, including the orientation of the photograph and the selection of a specific lens.” The court agreed with Fox that this factor weighed in favor of fair use: “There can be no dispute that the Work is a non-fictional rendering of an event of utmost historical importance, which Franklin created during the course of his duties as a news photographer. Franklin did not create the scene or stage his subjects—to the contrary, he plainly acknowledged that the photograph ‘just happened.’” Although Franklin exhibited great artistry, at the end of the day the image was photojournalism, which the court found categorically favored fair use.

The case will now proceed to trial. Fox will have the opportunity to present additional evidence on the purpose of its use, and this may be sufficient to change the overall fair use calculus in its favor.

Nevertheless, Fox has been having a rough time in fair use cases in the Southern District of New York. Last year, it sued TVEyes, a company that created a search engine for news broadcasts. A different judge, Judge Hellerstein, found that fair use permitted TVEyes to copy Fox News’ broadcasts into its search database. Perhaps Judge Ramos found Fox’s vigorous assertion of fair use in the NJMG case to be inconsistent with its vigorous opposition to fair use in the TVEyes case. Regardless, the courts reached the right result in both cases.