ARL Policy Notes
Finally, An Easy-ish Question

Copyright law can seem so confusing, with simple questions like “when will the song ‘Happy Birthday’ enter the public domain?” prompting elaborate research projects that still do not settle things once-and-for-all. It’s so nice, then, when you find clear and unambiguous statutory language that is right on point and provides a simple answer to your question.

#Moodle4-9: Calculated Objects question type

Today is our lucky day, because we are setting out to answer one of those rarest questions: one with a clear and unambiguous answer in the Copyright Act. Namely:

Does anything in Section 108 of the Copyright Act in any way affect the right of fair use as provided by Section 107?

It’s an important question, because libraries have certain specific rights under Section 108 that might be seen as preempting any more general rights they have under Section 107. If libraries want to use copyrighted materials in ways that are not covered by Section 108, is fair use available as a rationale to justify those uses? To put a finer point on it: Do libraries have fair use rights? Hmm.

Let’s do a quick search of Title 17…

AH-HA! The statute gives us a clear and unambiguous answer at Section 108(f)(4):

"Nothing in this Section in any way affects the right of fair use as provided by section 107."

So libraries (and anyone else) have the same fair use rights under Section 107 as they would have if Section 108 did not exist. The scope of those rights is still up for debate (though I can recommend some resources that will help sort things out), but we know one thing for sure: fair use is completely separate from Section 108. Settled beyond rational dispute, right? You’d think so.

In what seems like a Swift-ian satire masquerading as a legal brief, the Authors Guild argues that, in fact, despite 108(f)(4), everything in Section 108 comprehensively affects the right of fair use as provided by Section 107, at least for libraries. As they put it,

"Congress included these rules [in Section 108] to carefully delineate the boundaries of fair use in the context of library copying."

Wait, what?

The three pages or so that the Guild dedicates to making this Orwellian move do very little to overcome an informed reader’s incredulity. Indeed, Google Books litigation guru James Grimmelmann calls it a clever litigation trick but suggests even the Guild doesn’t really believe what it’s selling.

Canons of statutory interpretation

The first few arguments the Guild makes are based on general canons of statutory interpretation, like “the specific governs the general.” As any lawyer will tell you, canons of interpretation are what you turn to when there’s some ambiguity in the statutory text itself. If there were an open question about how Congress meant 108 and 107 to be interpreted, we might look to these general rules as a way to break the ambiguity. But there is no such ambiguity. Congress has said explicitly how courts are to use 108 as they determine a library’s (or anyone else’s) rights under Section 107: not at all. Maybe in a world without 108(f)(4) you could say that 108 is “specific” and 107 is “general,” and so 108 ought to trump. But we are not in that world, and have not been there for many decades. In the real world, Congress has determined that the specific provisions in 108 do not trump the general right described by Section 107, just as specific federal laws do not trump the general First Amendment right of free expression. 108(f)(4) settles this question, making recourse to general rules of thumb a subversion of clear Congressional intent. Strike 1 for the Guild.

Copyright Office Reports

Next, the Guild relies on a report written by the Copyright Office in 1983. In that report, the Office opines on the proper scope of library fair use rights in light of Section 108. Leaving aside the fact that to opine in this way is already in tension with the clear statutory language, the Guild’s invocation of this report is not persuasive for several reasons:

  1. There is no ambiguity in the statute. Again, expert opinion, even expert agency opinion, is only useful if you have a statute that is unclear. That is not the case, here. The statute could not be clearer. There is no reason to consult any experts, not even the Copyright Office, and certainly not the Copyright Office circa 1983.

  2. Fair use law is made by the courts, not the Copyright Office, and it has evolved considerably since 1983. It is clear beyond dispute that when Congress ‘codified’ fair use in 1976, it was endorsing the continuing evolution of the doctrine in courts. The statutory factors are open-ended and flexible, and the courts have not been timid in deploying the doctrine in new and exciting ways over the last three decades. The Copyright Office in 1983 could not in its wildest dreams have anticipated the kinds of practices that have since been blessed as fair use, or the challenges that 21st Century libraries would face and the tools they would devise to meet those challenges.

  3. Courts are not bound by Copyright Office reports. That’s not always true. Some federal agencies are entitled to what is called Chevron deference,” which means they are empowered to interpret the law in their area of specialty, and courts have to follow the interpretations those agencies make even if the judges disagree (unless the agency has completely gone off the deep end). The Copyright Office is not one of these specially-empowered agencies. Instead, courts must show them only Skidmore deference,” i.e., courts will defer to them to the extent that their arguments are persuasive. In other words, courts show these agencies no deference at all; they make their arguments just like everyone else, and the court can take or leave them. That doesn’t stop the Guild from trying to say that the Office gets “deference,” shoving Skidmore into a footnote, perhaps hoping that the Judge will not read this brief carefully.

  4. It’s clear even from the excerpts in the Guild’s own brief that the Copyright Office in 1983 did not say that Section 108 is an exhaustive delineation of library fair use rights. Rather, the Office suggests that some stakeholders (though not the libraries) believed in 1976 that Section 108 allowed practices in excess of fair use, which does not necessarily entail that it comprehends all that fair use would allow. Indeed, as professor Grimmelmann points out, the 1983 Report says fair use will “often” be unavailable in cases beyond the limits of 108; it does not say that fair use will “always” be unavailable.

A Dye-transfer Copying Machine

To the extent that the Report seems to take a dim view of relying on fair use for large, systematic library projects, it is worth emphasizing the Report predates the advent of the Internet, of digital search algorithms, of cloud computing, and of a host of new practices that involve systematic large scale copying that courts have blessed as fair use. Courts are the ones empowered by the Copyright Act to determine the evolving bounds of fair use, and they have found copying that is very similar to that at issue here to be fair. They have done so repeatedly, and with growing certainty, and they have endorsed these practices when engaged in by commercial, for-profit actors. The Guild would have us believe that libraries whose mission is to promote teaching, learning, and scholarship have fewer fair use rights than billion dollar companies whose mission is to maximize advertising revenue. On the contrary, libraries should follow the lead of these companies in areas like web archiving.

The DMCA Savings Clause

Here I will just defer to Professor Grimmelmann, who untangles this knotty issue very effectively in his own blog post on the brief:

And then there is the brief’s discussion of another Copyright Act fair use saving clause, in Section 1201 of the DMCA:

Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

In the famous DeCSS case Universal City Studios v. Corley the Second Circuit held that fair use was no defense to DMCA anti-circumvention liability. But—as the Second Circuit explained but the Authors Guild doesn’t—that was because the DMCA creates an independent form of circumvention liability that is different from infringement liability:

In the first place, the Appellants do not claim to be making fair use of any copyrighted materials, and nothing in the injunction prohibits them from making such fair use. They are barred from trafficking in a decryption code that enables unauthorized access to copyrighted materials.

That is, fair use as a defense to copyright infringement remains completely intact under the DMCA. Unlike the DMCA, however, Section 108 does not create new forms of liability, so that “violation” of it is not some new exotic action to which fair use does not apply. Failure to qualify for Section 108, per the text of the savings clause, simply kicks one back into the usual fair use balancing test.

So, there you have it. The statute is clear, the policy question is easy, and the Guild is making a series of hail Mary arguments to try to avoid a long and (hopefully) fruitful inquiry into what fair use really means for libraries. Jonathan Band has already explored this substantive area, and his analysis is quite compelling.

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