Tag Archives: Lenz

Fair Use in 2015 and A Look Ahead at 2016

We’re taking part in 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.”

Fair use is a critical right and the most important limitation on the rights of the copyright holder. It permits the use of copyrighted material without permission from the rightholder under certain circumstances and has been called the “safety valve” of U.S. copyright law. Fair use is a broad and flexible doctrine that is responsive to change and can accommodate new technologies and developments.  Notably, fair use is relied upon by everyone, including both users of copyrighted content as well as rights holders. This critical doctrine provides essential balance

Below are five news highlights on fair use from 2015 as well as my five favorite fair use resources created in 2015 (created for Fair Use/Fair Dealing Week 2015).

Five Fair Use Highlights from 2015:

  1. Second Circuit Affirms Fair Use in Google Books Case.  In October 2015, the Second Circuit released its unanimous opinion, authored by Judge Leval, affirming the lower court’s fair use decision in Authors Guild v. Google, also known as the “Google Books” case.  The Second Circuit held that Google’s copying of books and display of snippets in a search index is transformative and a fair use.  This search and snippet function of Google Books allows for important research, including through text-and-data mining to allow researchers to conduct research that would not be possible without the large searchable database created by Google. Additionally, the Second Circuit found that Google’s provision of digital copies to its partner libraries that submitted the particular work is not an infringement.  This digitization of certain works from library collections demonstrates an important partnership, which has allowed libraries to make fair uses of these copies, including to provide access for those who are visually impaired.
  2. Ninth Circuit Rules Fair Use Must Be Considered Before DMCA Takedown Notices Sent.  In September 2015, the Ninth Circuit ruled in Lenz v. Universal Music, also known as the “Dancing Baby” case that “copyright holders must consider fair use before sending a takedown notification, and that failure to do so raises triable issues as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.”  In its reasoning, the Ninth Circuit confirmed that fair use is a right: “Fair use is not just excused by the law, it is wholly authorized by the law . . . The statute explains that the fair use of a copyrighted work is permissible because it is a non-infringing use.”
  3. YouTube Announces It Will Defend Some Creators’ Fair Use Claims.  In November 2015, YouTube announced that it will protect “some of the best examples of fair use on YouTube” by defending some creators in copyright litigation.  YouTube pledged to indemnify some of its creators whose fair use videos are subject to takedown notices for up to $1 million in legal costs if the takedown results in a copyright infringement lawsuit. This announcement is significant given that fair use provides essential balance to the copyright system, allowing for transformative uses including parody, commentary, criticism and innovation and videos posted to YouTube often rely on this important doctrine.
  4. Final Text of the Trans-Pacific Partnership (TPP) Agreement Includes Language on Limitations and Exceptions.  In October 2015, the twelve negotiating parties (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam) announced agreement on the TPP, concluding five years of negotiations.  Although the final copyright provisions of the TPP had mixed results and ARL was disappointed by a number of the provisions and the lack of transparency during the negotiations, one of the positive aspects of the agreement was the inclusion and improvements in the final text on limitations and exceptions. The final text included language based off part of the United States’ fair use provision, with an addition for those with print disabilities, requiring “due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled.”  The text confirms that the exceptions can apply “in the digital environment” as well as to uses with “commercial aspects.”  Inclusion of this language is significant.  While the final language could have been strengthened further, the final text still provides an obligation for parties to seek a balance and can be used as a basis for stronger language in future agreements.  As noted by Jonathan Band in a paper exploring the evolution of the limitations and exceptions over the course of the TPP negotiations, “The incorporation of the non-exclusive list of legitimate purposes from 17 U.S.C. § 107 provides TPP countries a powerful basis for concluding that this balance is best achieved through the adoption of an open-ended flexible exception like fair use.”
  5. Authors Guild and HathiTrust settle last remaining issue (preservation); Second Circuit decision strongly affirming fair use stands.  While the Second Circuit’s decision in the HathiTrust case was released in June 2014, the court did not resolve the issue of preservation, sending that issue back to the district court.  In January 2015, the parties entered a settlement on the sole issue remaining issue, ending the litigation in a victory for HathiTrust and fair use.  The Second Circuit’s decision found that creation of a full-text search database and providing access to the print disabled constituted fair use.  In January 2015, however, the defendant libraries stipulated that they complied with Section 108(c) of the Copyright Act and agreed that for a period of five years, if they do not comply with the stipulation, it will notify the Authors Guild, “which, although not a Remaining Plaintiff in this Action, will accept notice.”  Authors Guild released a statement after the settlement, noting that it would not seek an appeal to the Supreme Court.

Five Great Fair Use Resources from 2015:

  1. Fair Use Fundamentals Infographic.  In celebration of Fair Use Week 2015, ARL created this infographic explaining that fair use is a right, is vitally important, is for everybody and is everywhere.
  2. A Day in the Life of a Legislative Assistant.  Jonathan Band authored this document, giving a sample day in the life of a legislative assistant.  This sample day shows just how often fair use is relied upon on a daily basis.
  3. Video: Fair Use and Technology.  Fred von Lohmann explains how fair use is essential to every day technology and how we encounter it on a daily basis.
  4. Podcast: Fair Use Protects Culture From Copyright, Not the Other Way Around.  TechDirt created a great podcast devoted to the important doctrine of fair use and how it provides an essential balance to the copyright system.
  5. 12 Fair Use Myths and Facts.  For Fair Use Week 2015, ARL also produced a “Myths and Facts” document on fair use, covering twelve myths about what fair use is and how it can be used.

So what’s next for fair use in 2016?

First, a reminder that Fair Use/Fair Dealing Week 2016 is quickly approaching and will take place from February 22-26, 2016.  A number of organizations and institutions are already planning to participate and have great events planned.  ARL will be creating a new infographic, hosting blog posts, and posting new videos on fair use.  For more information on how to participate or to see the great resources from last year’s celebration, visit the Fair Use Week website.

Additionally, the Authors Guild’s Google Books case may not be over as the Authors Guild filed a petition for writ of certiorari to the Supreme Court on December 31, 2015.  However, the Authors Guild’s petition does not appear to be a particular strong one.  Despite the Authors Guild’s claims that there is a circuit split on the meaning of transformativeness, it is not clear that the six circuits cited have actually split on the issue as the facts of the cases differ significantly.  Furthermore, the argument that the Second Circuit has shifted to a one-factor test is clearly unsupported by the court’s October decision; the Second Circuit carefully analyzes all four factors.

In fact, Professor Jane Ginsburg noted in her article, Google Books and Fair Use: From Implausible to Inevitable? that the Google Books decision is probably not worthy of Supreme Court review.  She stated that the decision “probably surprised no one” and that “courts came to interpret Campbell’s reference to ‘something new, with a further purpose’ to encompass copying that does not add ‘new expression,’ so long as the copying gives the prior work ‘new meaning.’  Fair use cases began to drift from ‘transformative work’ to ‘transformative purpose,’ in the latter instance, copying of an entire work, without creating a new work, could be excused, particularly if the court perceived a sufficient public benefit in the appropriation.” Ginsburg acknowledges that courts have interpreted transformativeness to include a transformative purpose and does not cite any circuit split on this issue.  She also pointed out that the Second Circuit’s opinion was restrained and did not expand the fair use doctrine.  If the Supreme Court declines to hear the Google Books case, the Second Circuit’s decision will stand.

Additionally, as noted yesterday, the Copyright Office has issued a notice of a study the 1201 rulemaking process which creates exemptions on a three-year cycle to allow for circumvention of technological protection measures.  The exemptions requested during each cycle represent non-infringing uses, such as those that would operate under fair use in the analog world (that is, without the digital locks placed on digital copies).  The notice of inquiry includes a number of questions that are highly relevant to fair use.  For example:

1. Please provide any insights or observations regarding the role and effectiveness of the prohibition on circumvention of technological measures in section 1201(a).

[. . .]

3. Should section 1201 be adjusted to provide for presumptive renewal of previously granted exemptions—for example, when there is no meaningful opposition to renewal—or otherwise be modified to streamline the process of continuing an existing exemption? If so, how?

[. . .]

8. Please assess whether the existing categories of permanent exemptions are necessary, relevant, and/or sufficient. How do the permanent exemptions affect the current state of reverse engineering, encryption research, and security testing? How do the permanent exemptions affect the activities of libraries, archives, and educational institutions? How might the existing permanent exemptions be amended to better facilitate such activities?

9. Please assess whether there are other permanent exemption categories that Congress should consider establishing—for example, to facilitate access to literary works by print-disabled persons?

 

While these are important questions and it is good to see that the Copyright Office is at least considering the idea of permanent exemptions and a streamlined process, these questions highlight the fundamental flaw of the 1201 rulemaking process.  As noted by the Library Copyright Alliance’s statement for the Judiciary Subcommittee hearing on 1201 in September 2014:

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.

Fair use should apply equally in the digital world and technological protection measures should not be used to limit the fair use right.  The fact that every three years, proponents of exemptions must use a great deal of time and resources to seek renewal of or a grant of exemptions to anti-circumvention rules to exercise the fair use rights is problematic and inefficient.

 

9th Circuit Holds Fair Use Must Be Considered Before DMCA Takedown Notices are Sent

On September 14, 2015, the Court of Appeals for the Ninth Circuit ruled in Lenz v. Universal Music that “copyright holders must consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.”  The case decision is a strong affirmation of fair use, with some highlights from the opinion incorporated below.

This case involved a 29-second home video posted on YouTube in which Stephanie Lenz filmed her two children dancing to “Let’s Go Crazy” by Prince.  This video, known as the “dancing baby” video featured her thirteen-month old son dancing while holding a push toy.  Universal Music sent a takedown notice alleging copyright infringement and a “good faith belief” as required by the DMCA that the “activity is not authorized by the copyright owner, its agent, or the law.”  Under the DMCA, service providers enjoy a safe harbor from liability if they follow the procedures under Section 512(c), including removing or disabling access to content after receiving notification from a copyright holder that the content is infringing.  The video was taken down by YouTube, but was eventually reinstated after Lenz sent a counter-notice.  Lenz filed suit against Universal following the takedown.

The Ninth Circuit considered the question of whether the DMCA requires copyright holders to consider fair use before issuing a takedown notification.  In finding that copyright holders must consider whether a particular use is fair, the Ninth Circuit notes, “Fair use is not just excused by the law, it is wholly authorized by the law . . . The statute explains that the fair use of a copyrighted work is permissible because it is a non-infringing use.”  While Universal argued that fair use is not considered “authorized by law” because it is an affirmative defense, the Ninth Circuit rejects this argument:

Universal’s interpretation is incorrect as it conflates two different concepts: an affirmative defense that is labeled as such due to the procedural posture of the case, and an affirmative defense that excuses impermissible conduct.  Supreme Court precedent squarely supports the conclusion that fair use does not fall into the latter camp: “[A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use.”  Sony Corp of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984).

Given that 17 U.S.C. 107 expressly authorizes fair use, labeling it as an affirmative defense that excuses conduct is a misnomer:

“Although the traditional approach is to view ‘fair use’ as an affirmative defense, . . . it is better viewed as a right granted by the Copyright Act of 1976.  Originally, as a judicial doctrine without any statutory basis, fair use was an infringement that was excused–this is presumably why it was treated as a defense.  As a statutory doctrine, however, fair use is not an infringement.  Thus, since the passage of the 1876 Act, fair use should no longer be considered an infringement to be excused; instead, it is logical to view fair use as a right.  Regardless of how fair use is viewed, it is clear that the burden of proving fair use is always on the putative infringer.”  Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 n.22 (11th Cir. 1996) . . .

Furthermore, the Court notes that even if fair use were to be considered an affirmative defense, copyright holders must consider fair use when sending a takedown notice:

[W]e hold–for the purposes of the DMCA–fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses.  We conclude that because 17 U.S.C. 107 created a type of non-infringing use, fair use is ‘authorized by the law’ and a copyright holder must consider the existence of fair use before sending a takedown notice under 512(c).

 

Additionally, the Court states, “Copyright holders cannot shirk their duty to consider–in good faith and prior to sending a takedown notification–whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law.  That this step imposes responsibility on copyright holders is not a reason for us to reject it.”

The opinion, written by Judge Tallman, was joined by Judges Smith and Muruguia with respect to the conclusion the holding that copyright holders must consider fair use.  Judge Smith dissented on other issues (not discussed in this blog post) regarding the standard used in determining whether Universal faces liability for misrepresenting its good faith belief that the video did not constitute fair use.