Campbell conference: beyond transformative use

Panel VII. Beyond Transformative Use—Other Fair and Permitted Uses (Moderator, Professor Gomulkiewicz) (partial: I had to leave early, sorry)

 

Gomulkiewicz: sometimes licenses get a bad rap but they can be a powerful engine for creativity.

Jessica Litman, University of Michigan: Campbell was set up and constrained by Sony.  Sony was filed only a few weeks after the 1976 Act became effective.  Issues Congress hadn’t considered: liability for personal uses; liability for manufacturers of devices. Members of Congress believed that personal copies were noninfringing; they assumed the extant 1909 Act and the Act they were working on wouldn’t reach those copies.  The scary new techs when Congress was working on the Act were photocopying and magnetic audiotape. Congress talked about them a great deal; consumers were using them extensively in the 1960s, and witnesses assured Congress that they wouldn’t face infringement suits. Instead they were worried about institutional/business substitutionary copying—most witnesses said we have copiers in the office and tape machines at home and think they’re great. Didn’t suggest liability for uses. Not arguing that Act contains implicit exception for personal copying: more modest argument—b/c Congress believed that personal copying didn’t mean liability, and b/c no one suggested device maker liability, Congress had no opportunity to craft relevant exceptions, limitations, or remedies.

 

The thrust of copyright owner lobbyists had still been to ensure that © rights were expressed in very broad language so that it would be clear that the same rules would apply to the next new scary technology.  So it became necessary to use fair use to protect individuals and device makers; Court ended up settling on noncommercial use = fair presumption, but the inverse presumption was disastrous, so 10 years later Souter disavowed Sony, without repudiating its result. Consumers meanwhile internalized the principle that recording was fair use; AHRA was supposed to give consumers a free pass for recording music. 

 

It became clear that applying the clear language of the statute wasn’t going to work in a lot of situations, but it was hard to get Congress to enact exceptions for clearly noninfringing uses b/c of fierce opposition from copyright owners.  E.g., Register of Copyrights suggested an express privilege for backing up copies on one’s computer, since backing up files is really important and people should do it.  §117 doesn’t do it if what you’re backing up is not a computer program. Probably it’s fair use, but then those copies are “lawfully made” and then those copies could be disposed of.  If it wasn’t lawfully made, but then we’re sending the message that this good, important, harmless thing is illegal, which is either bad for good data practices or for legitimacy or for both. Yet the opposition was vehement: no one is actually suing over this, so there’s no harm; any new exception to reproduction right, whatever it was, would pose a grave risk of encouraging rampant piracy.  Computer game makers suggested Congress should just repeal §117 entirely since media were now much more durable and no one needed to back up programs.

 

This story repeated again and again.  All new suggested exceptions are unnecessary and dangerous. Consider failure of telephone unlocking bills: everyone agreed it was fine and no one wanted to put it in the statute.  But there are always © owners who sue over stuff Congress didn’t intend to cover; that’s the point of the broad language. As © expands further, fair use has to stretch to match. If © owners mean that it’s important to constrain fair use to its mid-20^th c. limits, we need to constrain copyright accordingly, or have a host of new express exemptions and limitations that would make it feasible to make fair use relatively narrow.

 

Anthony Reese, U.C. Irvine: Campbell transformed factor three: seems to boil down to how much the D took and how important it was. Relatively easy in most cases to measure how much D took but gives little guidance on how much is too much.  SCt before Campbell had no guidance at all; Sony involved 100% copying.  Said that 100% didn’t have the “ordinary effect” of militating against fair use.  Harper & Row wasn’t much help either, b/c it was on the other extreme of the spectrum: 400 words out of 200,000, or 0.2% of the work.  Court acknowledges this is insubstantial in absolute terms but was “qualitative” heart. 

 

Campbell changes all that in a few swift strokes: reasonable in relation to the purpose of the copying.  He’s studied results in appellate cases, 61 in 21 years.  Reviewed 4 judgments on pleadings, 14 on preliminary injunction, 33 summary judgment, remainder trials.  Fair use found by 30 dcts, 26 not fair use, 1 mixed and 4 no reaching of merits.  Appellate: 24 fair use, 31 not fair use, 3 mixed and 3 merits not reached. Not all affirmances despite similarity.

 

Half the cases (52.5%) explicitly state the reasonableness principle, quoting Campbell directly or indirectly.  28 of 61 cases with one or more uses found fair, 22 of 28 state the reasonableness principle.  33 of 61 finding not fair, or dct erred in finding fairness, quote reasonableness in 10 of 33 cases. This says nothing about the direction of causation of course.

 

35 of 61 involve uses of P’s entire work. 15 Still images: 10 photos/5 graphics. 10 involve texts: 6 books/manuscripts/dissertations (remainder journal article, student paper, etc.); 10 TV programs, software, sculptural works, music, sound recordings (Swatch conference call)

Entire work case: 18 not fair use, 5/18 mention reasonableness.  Fair use/mixed 16: 13/16 mention reasonableness. (1 didn’t reach the merits.)

Heavy number of new tech uses involve entire work—search cases; plagiarism search case of iParadigms; Swatch conference call (new tech b/c Bloomberg wouldn’t have used the whole call in any other reporting medium); then Napster & Gonzales, two P2P filesharing cases. In all but the filesharing cases, there’s a finding of fair use with an express reliance on reasonableness. Campbell gives structure to analyze how much is too much.

 

Rebecca Curtin, Suffolk: Transactional origins of authors’ rights. Don’t mean to imply that commercial norms do or should equal legal norms. Statute of Anne expressed concerns about social value.  Nonetheless, interesting questions about origins, because if you look just at court cases and statutory recognitions of literary property, authors are invisible from 1557 to 1710 and then they pop up.  Was this a cover for publishers’ interest? Idea that commercial practices didn’t change used to suggest that reference to authors was a sham.

 

If you look at commercial practices before the Statute of Anne, looks less like a cover story and more like a business model.  Petition for copyright from Stationers: emphasizes detriment to authors, but also the importance of © to their ability to carry on their business to create alienability: authors who used to dispose of their copies for consideration or reserved some part for the benefit of themselves have been harmed by other printings.  What did they mean “reserved some part”?  Something more than mere conveyance of the physical manuscript, even before there was a concept of literary property.  (Couldn’t that just be payment over time, like a loan?)

 

Is there evidence on the Register that publishers thought about copyright, not just physical manuscripts, being purchased? Is there evidence of sharing of contingent value after publication?  Examples: never print again without consent of the author—dated 1607.  Atypical entry in the Stationers’ Register. Contracts became more complex over time, such as Milton’s 1667 contract.  Building the rise of the idea of literary property. Idea of subscription projects: authors extend into the market and interact w/readers: 1694 contract to translate Virgil w/upfront milestone payments. Printer agrees to make best efforts to get certain number of subscribers, preserve exclusivity for subscribers until the edition is done. Once orders are filled, Dryden (author) can advertise himself for a second subscription. And if the publisher failed to get the subscription fully subscribed, Dryden had clawback rights.  Conceptualizing author’s right prior to codification again.  Contract language doesn’t use “copy” terminology, but “sole benefit of printing.”  Other contract language resembles a covenant of seizin: given the investment, author may need to indemnify publisher if there’s no legal right to sell literary property.

 

Post 1710 contracts sound very similar.  “Copy” means more than the physical manuscript.