Too often, copyright critics speak dismissively of permission and belittle the mere individual right involved. Such rhetoric surrounded last week’s IP Subcommittee hearing on the scope of fair use, and while the panelists largely agreed that no legislative changes were needed regarding fair use, there were sharp divisions over whether the doctrine currently goes too far or not far enough.

One does not win popularity contests critiquing fair use. How can you ignore the public benefit of Google Books? How can you be against fan fiction? But the question is not whether or not there is a public benefit or creativity involved, the question is how to mediate between public and private interests. And, as fair use is on an expansive course—and increasingly becoming part of the business model of large corporations—it is worth asking how easily public interests should trump private rights.

That’s not to say there are not, as with any form of property or right, competing equities that must be considered, and balanced against a copyright owner’s interests when they come into conflict. Fair use has traditionally played this role. But lately, it has seen a steady and troubling expansion, one that more and more is comfortable with letting the common good override individual rights. 1See, for example, Princeton University Press v. Michigan Document Services, 99 F.3d 1381, 1393 (6th Cir. 1996) (J. Martin dissent), saying fair use is intended “to protect society’s vested interest in the sharing of ideas and information against pursuits of illegitimate or excessive private proprietary claims” (Emphasis added); Monge v. Maya Magazines, 688 F.3d 1164, 1184 (9th Cir. 2012) (J. Smith dissent), “The majority’s fair use analysis in this case … thwarts the public interests of copyright by allowing newsworthy public figures to control their images in the press.”

For those who fall on the “fair use has gone too far” side, who are worried about large companies getting a “volume discount” on fair use to excuse the wholesale copying of millions of works, 2Statement of June Besek, Hearing on Fair Use (Jan. 28, 2014), “It’s as though courts are according some kind of ‘volume discount’ for fair use, where a massive taking justifies a lower level of scrutiny in a fair use determination. It becomes increasingly difficult to explain to authors and public alike a copyright regime that rigorously examines the extent of a single scholar’s partial copying, while essentially according a free pass to a for-profit enterprise’s massive takings.” or who share the concerns of Supreme Court Justice Kennedy—who said in his concurrence in Campbell v. Acuff-Rose Music, “If we allow any weak transformation to qualify as parody, however, we weaken the protection of copyright. And under-protection of copyright disserves the goals of copyright just as much as overprotection, by reducing the financial incentive to create”—it is worth reaffirming some of the principles that fair use is established on.

A Marketplace for Ideas

Fair use is necessary, but it necessarily must be limited—especially if the primary goal of the doctrine is to complement the goal of copyright rather than subvert it. “[T]he author’s consent to a reasonable use of his copyrighted works ha[d] always been implied by the courts as a necessary incident of the constitutional policy of promoting the progress of science and the useful arts, since a prohibition of such use would inhibit subsequent writers from attempting to improve upon prior works and thus . . . frustrate the very ends sought to be attained.” 3Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 US 539, 549 (1985), quoting H. Ball, Law of Copyright and Literary Property 260 (1944). (Note here the reference to consent.)

One of the reasons fair use analysis includes an examination of the effect of the use upon the potential market for or value of the copyrighted work is because the creation of a marketplace is a core function of copyright law.

By understanding the predicate concepts of the Copyright Clause (limited times, authors, exclusive rights, and writings) the central purpose of the Copyright Clause can be seen: it achieves a public benefit in the progress of knowledge by securing such rights. The structure of the Copyright Clause is not limited to a proclamation that this is beneficial. Rather, it assumes that promoting the progress of knowledge is advantageous and directs Congress to achieve this benefit by securing exclusive rights in intellectual property. It mandates the creation of a marketplace, wherein this unique form of property, the copyright, may be traded and protected. 4David A. Householder, The Progress of Knowledge: A Reexamination of the Fundamental Principles of American Copyright Law, 14 Loy. L.A. Ent. L. Rev. 1, 35 (1993). See also Adam Mossoff, How Copyright Drives Innovation in Scholarly Publishing, George Mason Law & Economics Research Paper No. 13-25 (2013), “This commercialization policy—that intermediaries like publishers should be rewarded for their labors in creating the legal and market mechanisms necessary to disseminate works—is essential to the American copyright system.”

Thus, as an economic asset, copyright provides the certainty necessary for the creation of a market, one where transactions can occur peacefully and systematically, where private ordering can emerge, and where economic efficiency can be promoted. Considering the size of this cultural, scientific, and artistic market in the U.S. reached over one trillion dollars in contributions to the GDP in 2013, it seems safe to say this approach is working generally well.

But as with any market, there will be disagreements over price, or refusal to work together. These disagreements, by themselves, should not invite fair use. There are plenty of situations where licensing might be too difficult or expensive, where some modicum of public benefit might be achieved absent the barriers of prices or permission—but this is true of all markets and forms of property. Fair use should be reserved, as with any limitation on individual rights and property, for those situations where a compelling public interest exists, one that demands recognition. As famed treatise Nimmer on Copyright explains, “if the ‘progress of science and useful arts’ is promoted by granting copyright protection to authors, such progress may well be impeded if copyright protection is virtually obliterated in the name of fair use.” 54 Melville B. Nimmer and David Nimmer, Nimmer on Copyright § 13.05[E][1] (2013).

Equally important is a defense of the notion of consent, or permission. Despite consent being a foundation of civil government—the Declaration of Independence expressly notes governments only derive “their just powers from the consent of the governed”—and a moral and legal concept that pervades our institutions, some copyright skeptics reject the idea. 6See, for example, here, here, and here. What they see as the foundation instead—divine right, perhaps?—is unclear.

Nevertheless, my guess is that most of us would choose consent over coercion. 7See Cass R. Sunstein, It’s for Your Own Good! NY Review of Books, March 7, 2013. And this provides an additional reason to make sure fair use is properly cabined.

The “right to exclude” is perhaps overstated as an essential element of property. Property in general, and copyright specifically, create a freedom to choose how to use economic assets. Legal theorist Felix Cohen puts it this way: “Private property is a relationship among human beings such that the so-called owner can exclude others from certain activities or permit others to engage in those activities and in either case secure the assistance of the law in carrying out his decision.” 8Felix Cohen, Dialogue on Private Property, 9 Rutgers Law Review 357, 373 (1954). It is worth noting that Cohen considered copyrights as property. The key here is that the choice itself (so long as it does not interfere on someone else’s interests) is irrelevant. 9See, for example, John Stuart Mill, On Liberty (1869), “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.” I’d like to point out two general reasons why this sort of structure is important to maintain in copyright.

One, it respects the dignity and autonomy of individuals:

An autonomous person is one who directs her own life, and not someone whose life is controlled by others. Of course, we can’t all do whatever we would like without running the risk of interfering with each other. Hence, from the idea of autonomy, we might derive the idea of moral rights and duties that create for each individual a sphere of autonomous action, in which each individual can direct her own life without interfering with the like freedom of others to do the same. The moral force of consent comes naturally if one accepts autonomy as a central moral value. Consent allows others to enter one’s sphere of autonomy. So long a consent is freely given, consented-to rights violations seem perfectly consistent with the idea that rights protect a sphere of individual choice. 10Consent“, Legal Theory Lexicon.

This respect is especially important  regarding expressive works, which can be seen as an extension or reflection of a creator’s personality. 11Accord Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L. J. 287 (1988).

Two, it provides for a plurality of valid choices. Some creators may choose to partner with larger businesses, some may choose to go their own way and stick to specific formats, some may choose to disseminate freely and as widely as possible. None of these is an inherently “right” choice. All creators place different priorities on getting compensated, seeking exposure, or maintaining creative control, priorities that can easily shift from one project to the next and evolve throughout a creator’s career. None of these is an inherently “correct” choice. One of the principles of the free market is that vesting this choice at the granular level will result in the greatest advance of liberty and efficiency. A system that narrows the range of plurality is inferior to one that preserves a wide range of reasonable choices.

Exceptions to this sort of regime, including fair use, should thus be applied judiciously and conservatively.

The Inherent Public Interest in Copyright

For all the talk about fair use’s role in facilitating public interests, it is easy to forget that copyright—indeed, all property rights—inherently serve the public interest. 12See Thomas W. Merrill and Henry E. Smith, The Morality of Property, 48 Wm. & Mary L. Rev. 1849 (2007). So it bears repeating. The creation of a marketplace for expressive works and the protection of autonomy, both discussed above, undoubtedly advance public interests. 13See, for example, Daniel Solove, ‘I’ve Got Nothing to Hide’ and other Misunderstandings of Privacy, 44 San Diego Law Review 745, 762 (2007), agreeing with proposition that “Society makes space for the individual because of the social benefits this space provides.”

The results of copyright as being in the public interest are palpable. But for the labor of an author to write about how to cultivate a certain skill, the public would not have that particular expression of knowledge. But for the labor of a filmmaker, members of the public would not see a film that may change the way they view the world or provide them a greater understanding of themselves.

The interests of the public and the author coincide, something recognized by the drafter of the Copyright Clause, James Madison, in the early days of the republic, and reiterated to this day.  14Writing in the Federalist Papers, Madison said of the Clause, “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain, to be a right of common law. … The public good fully coincides…with the claims of individuals.” In Eldred v. Ashcroft, the Supreme Court explicitly rejected as missing the mark the assertion that copyright law “must serve public, not private, ends.” Instead, it said, “The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.”

So, yes, fair use has a long pedigree in U.S. copyright law and an important role to play. But at the same time, courts and policy makers should be mindful that the doctrine does not end up subverting the very goals it is meant to reinforce.

References   [ + ]

1. See, for example, Princeton University Press v. Michigan Document Services, 99 F.3d 1381, 1393 (6th Cir. 1996) (J. Martin dissent), saying fair use is intended “to protect society’s vested interest in the sharing of ideas and information against pursuits of illegitimate or excessive private proprietary claims” (Emphasis added); Monge v. Maya Magazines, 688 F.3d 1164, 1184 (9th Cir. 2012) (J. Smith dissent), “The majority’s fair use analysis in this case … thwarts the public interests of copyright by allowing newsworthy public figures to control their images in the press.”
2. Statement of June Besek, Hearing on Fair Use (Jan. 28, 2014), “It’s as though courts are according some kind of ‘volume discount’ for fair use, where a massive taking justifies a lower level of scrutiny in a fair use determination. It becomes increasingly difficult to explain to authors and public alike a copyright regime that rigorously examines the extent of a single scholar’s partial copying, while essentially according a free pass to a for-profit enterprise’s massive takings.”
3. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 US 539, 549 (1985), quoting H. Ball, Law of Copyright and Literary Property 260 (1944).
4. David A. Householder, The Progress of Knowledge: A Reexamination of the Fundamental Principles of American Copyright Law, 14 Loy. L.A. Ent. L. Rev. 1, 35 (1993). See also Adam Mossoff, How Copyright Drives Innovation in Scholarly Publishing, George Mason Law & Economics Research Paper No. 13-25 (2013), “This commercialization policy—that intermediaries like publishers should be rewarded for their labors in creating the legal and market mechanisms necessary to disseminate works—is essential to the American copyright system.”
5. 4 Melville B. Nimmer and David Nimmer, Nimmer on Copyright § 13.05[E][1] (2013).
6. See, for example, here, here, and here.
7. See Cass R. Sunstein, It’s for Your Own Good! NY Review of Books, March 7, 2013.
8. Felix Cohen, Dialogue on Private Property, 9 Rutgers Law Review 357, 373 (1954). It is worth noting that Cohen considered copyrights as property.
9. See, for example, John Stuart Mill, On Liberty (1869), “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.”
10. Consent“, Legal Theory Lexicon.
11. Accord Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L. J. 287 (1988).
12. See Thomas W. Merrill and Henry E. Smith, The Morality of Property, 48 Wm. & Mary L. Rev. 1849 (2007).
13. See, for example, Daniel Solove, ‘I’ve Got Nothing to Hide’ and other Misunderstandings of Privacy, 44 San Diego Law Review 745, 762 (2007), agreeing with proposition that “Society makes space for the individual because of the social benefits this space provides.”
14. Writing in the Federalist Papers, Madison said of the Clause, “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain, to be a right of common law. … The public good fully coincides…with the claims of individuals.”

17 Comments

  1. The more I think about it, the more it seems to me that fair use might be better understood if rather than focusing on what uses are fair, we should perhaps be considering what kind of exclusions are unfair.

    An example from land-ownership law here in Poland might illustrate what I am talking about: it is conceivable that one landowner may shut out another from the public highway because his land lies between the other’s parcel and the road. Were the shut-out landowner cut across his neighbour’s land to get to the road, it would constitute trespass. In such cases, the law provides an obligation on the landowner whose land lies between that of his neighbour and the public highway to provide an access route for his neighbour to and from the nieghbouring parcel.

    The purpose of this law is obvious: to ensure that predatory landowners do not make another’s land unusable by depriving it of access. Similarly, fair use – I believe – should be viewed as mostly safeguarding against copyright holders using their exclusive rights in an offensive manner: for example, by stifling criticism of their work by claiming it references protected material.

    The reason I think this is a helpful way of looking at fair use is that:
    1. many, so called, “public interest” scenarios have underlying private interests (this applies to everything from Google Books to fan fiction),
    2. in pretty much every other sphere there are very hard limits as to how much public interest can overweigh private interest; we can make just as compelling (if not more) case for curtailing private property in the name of the public good in just about every sphere of life (this applies to everything from real estate to money in the bank), but we refrain from this because we realise that tyranny of the majority is still a tyranny

    In practice, fair use analysis under such assumptions could be conducted in much the same way as it is now, but the philosophical underpinnings would be much more sound. As you rightly point out, Terry, the public benefit of any particular fair use (whether truly fair or not) is at best secondary and at worst insignificant compared to the public benefit of the work being available to be used in the first place.

  2. The US copyright law gives a pretty good indication of the legitimate scope of fair use by specifying that it must be for ‘purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research’. The Courts have held that ‘parody’ is capable of falling within this scope, as a form of criticism or comment. The problem is that ‘parody’ may be used as a mere pretext for extensive copying, as in the GoldieBlox case. It remains to be seen whether GoldieBlox will get away with it. The main precedent they rely on (the ‘Pretty Woman’ case) didn’t actually decide the substantive issue whether the copying was fair use.

  3. Terry–
    You said “For all the talk about fair use’s role in facilitating public interests, it is easy to forget that copyright—indeed, all property rights—inherently serve the public interest. So it bears repeating. The creation of a marketplace for expressive works and the protection of autonomy, both discussed above, undoubtedly advance public interests.”

    However, you’re making a big and unjustified leap there. It’s true that to be legitimate, all property rights must serve the public interest, as property is a utilitarian construct (as is copyright). However, it is entirely possible to have illegitimate property rights. As an easy, if extreme example, slaves were property, but given that the institution of slavery involved oppressing a vast swath of the public, it’s hard to see that the rights of slaveowners in their property “inherently serve[d] the public interest.”

    Likewise, copyright may at times go too far, and no longer serve the public interest. Indeed, the Supreme Court recognized as much when they said that “The fair use doctrine thus “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Stewart v. Abend, 495 U.S. 207, 236 (1990) (internal quotation marks and citation omitted).”

    David–
    You’ve made a common mistake. The fair use statute doesn’t “specify that [the fair use] must be for ‘purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research’.” What it actually says is that fair uses, which may include the uses you listed, are not infringing. It’s entirely possible to have uses which are of the types listed but are not fair use, e.g. Harper & Row v. Nation Enterprises was not fair news reporting, while also entirely possible to have fair uses which are not of any of those types, e.g. Sony v. Universal time shifting or RIAA v. Diamond Multimedia space shifting.

    • I agree that it is possible for copying ‘for the purposes of criticism, comment’ etc. to be ‘non-fair’ use, but then I didn’t claim otherwise. What I did (and do) claim is that it is a necessary condition for ‘fair use’ to be non-infringing that the ‘fair use’ be for ‘such purposes as criticism’, etc. That is the plain and literal meaning of the statute. If you don’t think the words from ‘for purposes’ to ‘research’ serve as a limitation on the exemption, what do you think they are there for? What force would they have? Of course, the stated purposes are not exhaustive, but one would expect any other ‘such’ purposes to fall in the same conceptual ball park. What the stated purposes have in common is that they help promote public knowledge, education, or understanding. ‘Parody’ has been accepted by the US Courts, perhaps unwisely, as falling in the same ball park, but unless the words from ‘for purposes’ to ‘research’ are entirely nugatory, their scope cannot be unlimited. There must be ‘purposes’ that are not ‘such purposes’.

      • The phrase “for purposes such as …” is pretty clearly a standard locution for a non-exhaustive list of examples. Or at least it is for native speakers of American English.

        • Of course, it’s a non-exhaustive list (which is why in my last comment I said ‘Of course, the stated purposes are not exhaustive’) but under standard principles of statutory interpretation it is not just a random list of relevant purposes which can be arbitrarily extended. Words in a statute are not (supposed to be) used in vain. If the drafters did not wish there to be any limit to the qualifying purposes they should have said ‘for any purposes’, or simply left out the list entirely. The use of the word ‘such’ is also significant: it normally implies more than just ‘including’. The natural interpretation is that the drafters intended any other purposes to be similar to (ejusdem generis) the listed items.

          • David,
            Well, another poster had mentioned, albeit indirectly, Pacific and Southern Co v. Duncan. When it was appealed (744 F.2d 1490 (1984)), the 11th Cir. said this: “The court rejected the fair use defense without considering the four statutory factors because TV News Clips did not copy and distribute the material for purposes such as the ones listed in the preamble. The district court reasoned that since TV News Clips’ use was not ‘inherently productive or creative,’ like each of the preamble uses, analysis of the four factors was unnecessary. We agree with TV News Clips that the district court should have considered the four factors set out in the statute. The statute uses mandatory language to the effect that in a fair use determination, the ‘factors to be considered shall include’ (emphasis added) the four listed. The preamble merely illustrates the sorts of uses likely to qualify as fair uses under the four listed factors.”

            Meanwhile, from the House Report accompanying section 107, a couple of choice excerpts. (The whole thing is way too long for here, but it’s a good read):
            “The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis. Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.”

            “The concentrated attention given the fair use provision in the context of classroom teaching activities should not obscure its application in other areas. It must be emphasized again that the same general standards of fair use are applicable to all kinds of uses of copyrighted material, although the relative weight to be given them will differ from case to case.”

            It looks like the purpose of Congress was to provide guidance for the courts, but not to limit them. Had they, as you suggest, not provided any guidance, this might result in the courts foundering a bit as they dealt with a new statutory form of fair use alongside the existing judicial doctrine.

      • Ah, but there is no indication in the statue or case law that fair use is actually limited to those things.

        To be fair, fair use is possibly one of the subjective, controversial and poorly understood things in the US legal system today. To the point that you can have two seasoned copyright experts arguing with each other about this very topic, and neither really being wrong.

      • Though the list is open-ended, there is nothing in the statute that suggest it can be expanded to encompass anything.
        Assuming that the language of the statute reflects the intention of the lawmaker – as I believe is the standard – we cannot simply focus on the fact that the list has been open ended, but also the manner in which it was done.
        The key words here are “for purposes such as” (17 U.S. Code § 107). Consulting Merriam-Webster, we find the phrase “such as” defined thusly:
        1 a : of a kind or character to be indicated or suggested
        Therefore, the plain language of the statute implies that the legislator aimed to restrict the exclusions to uses of a “kind or character” indicated by the subsequent list. Had this not been the legislator’s intention, he could have used other language (“among others” for example) or omitted the list altogether and simply said “any use”.
        That the purpose and character of the use has bearing on the finding of fair use is reaffirmed in the first factor of the test. It’s worth pointing out that the commercial or non-commercial nature of the use is a separate consideration (most criticism, commentary, reporting etc. is undertaken commercially) and in no way invalidates the restriction in the previous enumeration. Taking all the qualifications together, the first factor should be read as:
        a. is the purpose and character of a kind similar to the enumerated purposes above? (The only guidance towards the evaluation of purpose and character is provided by the list)
        b. is the use commercial or for a non-profit educational purpose (the word “including” indicates that the legislator did not intend to make the question of whether the use is commercial a sole factor)
        I wonder – has the question of what constitutes and acceptable expansion of the list ever been raised in court and whether the “such purposes as” language has ever been examined in any great detail? It seems surprising to me that it hasn’t, given that it forecloses a great many fair use defences where the purpose of the use was not of a kind and character indicated or suggested by the list in the statute.

  4. View born of experience. Congress does us no favor by employing language in Section 107 that can be interpreted to suggest fair use is entirely outside of the rights accorded under Section 106, as opposed to clearly stating that Section 107 is an affirmative defense that must be raised like any other affirmative defense lest it be deemed waived. The interplay of Title 17 and the First Amendment notwithstanding, last time I looked it was perfectly fine for a constitutional right to be waived by its holder.

  5. See Playboy Entertainment, Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993) (“One who distributes copyrighted material for profit is engaged in a commercial use even if the customers supplied with such material themselves use it for personal use”. See Pacific & Southern Co. v. Duncan, 572 F.Supp. 1186 (N.D.Ga.1983), affirmed, 744 F.2d 1490 (11th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1867, 85 L.Ed.2d 161 (1985).

    I think Lonni Chin should do a Google Book search, find what’s written above, and then reverse his own ruling against authors. Google is NOT a fair use. After that, a US Federal Raid on Google/YouTube would be terrific.

  6. Pro Se–
    But fair use isn’t an affirmative defense. It’s an exception to copyright. The grant of copyright to authors is limited to the rights expressly granted as further limited by sections 107 et seq. Authors were never granted exclusive rights over fair uses to begin with. Period.

    It’s just easiest and probably best to let defendants in an infringement action raise the issue of fair use because they are in a better position to make the argument, and they have more of a reason to do so. So it’s not an affirmative defense, but procedurally, simply for reasons of practicality, it is a bit similar.

    Ed–
    Your cite is misleadingly out of context. In Playboy it merely was used to indicate that the use — a BBS selling access to porn — was commercial, so that it could then go to the pre-Campbell v. Acuff-Rose standard of commercial uses being presumptively unfair. And the Pacific & Southern case cited is a real oddity, in which the court mistakenly ignores the four factor test altogether. Bizarre!

    But I’ll help you out. The case you really wanted, I think, was Princeton University Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir. 1996). In that case, a copy shop xeroxed books to make up course packets, which it sold to students. The students were engaged in an educational use, and while perhaps it would’ve been fair for the students to do their own copying, the copy shop could not stand in their shoes, and failed the usual analysis.

    This doesn’t really help you for Google Books, though, which passed the four factor test using more up-to-date and valid precedents. I’d wish you better luck next time… but I don’t think I will.

    • Anonymous,

      I claim that your argument is 100% flawed. Judge Chin, and the attorney for authors, refused the 4th factor. It is clear that every single use of Google is a digital reproduction, a copy of the scanned copy. See Capitol Records, LLC v. ReDigi, Inc., No. 12 CIV. 95 RJS, 2013 WL 1286134 at 5. (S.D.N.Y. Mar. 30, 2013) (copyrighted works are “material objects” that are “fixed”). Therefore, an infinite amount of reproduction with appended ads, is in itself “a detrimental market effect[] coupled with [a] commercial-use presumption” from which “negates the fair use defense.”.

      Your argument that there the “four factor test” was created by “using more up-to-date and valid precedents”, belies and purposely sneaks to avoid the statutes from which they are demarcated. The court did not mistakenly ignore the four factor test. In Playboy, 1) Copyrights were infringed. 2) The principle of de minimis non curat lex was denied. 3) Trademarks were passed off. In fact, Playboy was not “porn” as you say, they were files, digitized, each were specific counterfeit reproductions, profit was made instantaneously, and those who visited could view the public display by means of an authorization.

      I think you should try again. There’s plenty of cells to lock up animals like you, anonymous.

    • It’s an exception to copyright. The grant of copyright to authors is limited to the rights expressly granted as further limited by sections 107 et seq. Authors were never granted exclusive rights over fair uses to begin with. Period.

      1) Fair use is not an “exception” to copyright. A “fair use” has to be proven as a means not to reproduce the copyright.
      2) Authors have exclusive rights to authorize use of their work. In your case, you presume too much claiming “Internet fundamental protection of freedom” but ignoring each file on the Internet is a reproduction, a copy, not an inventory; and ignoring that fair use has some immunity to speak for others when it does not.

      Have a nice day. The law will catch up, like in Japan, and the Internet will be regulated sooner rather than later. By then and you can then cry foul with the Occupy Wall Street Neanderthals.

      • Ed–
        “I claim that your argument is 100% flawed. Judge Chin, and the attorney for authors, refused the 4th factor.”

        No, it’s right there in the opinion. I’m happy to quote it for you, in case you missed it; apologies for the length:

        4. Effect of Use Upon Potential Market or Value
        The fourth factor is “the effect of the use upon the
        potential market for or value of the copyrighted work.” 17
        U.S.C. § 107(4). Here, plaintiffs argue that Google Books will
        negatively impact the market for books and that Google’s scans
        will serve as a “market replacement” for books. (Pl. Mem. at
        41). It also argues that users could put in multiple searches,
        varying slightly the search terms, to access an entire book.
        (9/23/13 Tr. at 6).
        Neither suggestion makes sense. Google does not sell
        its scans, and the scans do not replace the books. While partner
        libraries have the ability to download a scan of a book from
        their collections, they owned the books already — they provided
        the original book to Google to scan. Nor is it likely that
        someone would take the time and energy to input countless
        searches to try and get enough snippets to comprise an entire
        book. Not only is that not possible as certain pages and
        snippets are blacklisted, the individual would have to have a
        copy of the book in his possession already to be able to piece
        the different snippets together in coherent fashion.
        To the contrary, a reasonable factfinder could only
        find that Google Books enhances the sales of books to the benefit
        of copyright holders. An important factor in the success of an
        individual title is whether it is discovered — whether potential
        readers learn of its existence. (Harris Decl. ¶ 7 (Doc. No.
        1039)). Google Books provides a way for authors’ works to become
        noticed, much like traditional in-store book displays. (Id. at
        ¶¶ 14-15). Indeed, both librarians and their patrons use Google
        Books to identify books to purchase. (Br. of Amici Curiae
        American Library Ass’n at 8). Many authors have noted that
        online browsing in general and Google Books in particular helps
        readers find their work, thus increasing their audiences.
        Further, Google provides convenient links to booksellers to make
        it easy for a reader to order a book. In this day and age of
        on-line shopping, there can be no doubt but that Google Books
        improves books sales.
        Hence, I conclude that the fourth factor weighs
        strongly in favor of a finding of fair use.

        You may disagree, of course, as reasonable people often do, but the fourth factor was addressed. Given that it is generally treated as the most important factor in a fair use analysis, it would be pretty surprising if it weren’t.

        “It is clear that every single use of Google is a digital reproduction, a copy of the scanned copy. See Capitol Records, LLC v. ReDigi, Inc., No. 12 CIV. 95 RJS, 2013 WL 1286134 at 5. (S.D.N.Y. Mar. 30, 2013) (copyrighted works are “material objects” that are “fixed”).”

        Setting aside the glaring error in the parenthetical (copyrighted works are intangible; copies are the material objects in which those intangible works are fixed, per 17 USC 101), that is certainly the conclusion you’d arrive at following MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993). There’s actually been some interesting pushback on this in the 2d Circuit, in Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), upon which the Aereo cases rely. The circuit split on what duration is required for fixation may well come up before the Supreme Court in the near future.

        But let’s assume that it doesn’t matter and that each use of Google Books does result in some copying. The problem for you is that this is precisely what the Author’s Guild court assumed. The plaintiffs were given a win on their prima facie case, but Google still managed to show fair use. Indeed, no court would ever conduct a fair use analysis unless there was prima facie infringement; if there was no infringement to begin with, fair use would be irrelevant.

        “Therefore, an infinite amount of reproduction with appended ads, is in itself ‘a detrimental market effect[] coupled with [a] commercial-use presumption’ from which ‘negates the fair use defense.’.”

        And let me again remind you. Post Campbell v. Acuff-Rose, there is no presumption that commercial uses are not fair uses. Whatever you’re looking at which says otherwise, ignore it, throw it out, because it is bad law, and has been bad law for the last 20 years. Certainly commercial use is of interest in the first factor, and in a close case, might tip the balance, but it isn’t enough by itself to 86 fair use.

        “Your argument that there the “four factor test” was created by “using more up-to-date and valid precedents”, belies and purposely sneaks to avoid the statutes from which they are demarcated. The court did not mistakenly ignore the four factor test.”

        The Pacific & Southern court ignored it, not the Playboy court. I apologize if I didn’t make it clear earlier. In fact, the appellate court in Pacific & Southern specifically chided the trial court for not conducting the analysis. But Playboy does predate Cambell v. Acuff-Rose and to the extent that they conflict, Campbell controls.

        “Authors have exclusive rights to authorize use of their work.”

        That’s basically a tautology. ‘Exclusive rights’ means ‘rights to exclude,’ i.e. a right to prohibit others from using a work in certain ways, e.g. reproduction, distribution. But most of the first chapter of Title 17 is dedicated to exceptions to those exclusive rights; situations in which the author has precisely bupkis right to prohibit others from using his work.

        It’s difficult here, limited to text, but I like to use the example of a Venn-like diagram. Imagine a huge white sheet of paper that lists every possible sort of use. Some of those uses, whole swathes, get marked over in red because the exclusive rights apply. But not everything gets marked out: none of the exclusive rights of an author cover, say, facts, so that stays white. Then, some of the red markings are removed, because an exception applies. For example, 17 USC 106(3) gives authors an exclusive right to control distribution of copies of their work. But 17 USC 109 takes away quite a lot of that exclusive right. And then a few red markings might be put back into place, as in the case of section 109(b)(1)(A) which is an exception to the exception. And then a few of those might be removed once more with section 109(b)(1)(B), an exception to the exception to the exception.

        In the end, you get a big bunch of white with some big red blotches themselves mottled with white (and red, and white, etc.). Anything red is part of copyright. Anything white is not part of copyright, even if it is surrounded by — an exception to — a bunch of red.

        • Anonymous,

          I’m already asleep with your plagiarism and twisted opinion as if were greater than all others. The Authors Guild v. Google is in the 2nd Circuit now, focus there. In fact, how about you go on Groklaw, where the sided opinion one way, attempts to manipulate rather than state the statutes.

          Oh wait, [we shut that shit down]. Have a nice day.