Public “Selective” Knowledge — Steve Tepp writes, “Disagreement on law and policy in the field of copyright have become routine. But in the past few weeks, Public Knowledge has crossed the line of civil and intellectual debate, levelling ad hominem attacks against the widely respected U.S. Copyright Office, claiming it ‘has a long history of being bad at its job, and misrepresenting the law.’ But a critical review of Public Knowledge’s own statements reveals that these attacks are baseless, self-serving, and hypocritical.”

The Internet’s Safe Harbor Did Not Just Become A Little Less Safe — Franklin Graves looks at the August 8 decision in BMG v Cox, where the Eastern District of Virginia upheld a jury verdict finding an ISP liable for contributory copyright infringement. Says Graves, “From a corporate prospective, a business has two choices when faced with an arguably gray area of the law. First, they can comply to the best of their ability with statutory requirements as they stand and proceed with disputing the requirement. Alternatively, they can ignore then-current legal requirements, take the chance of being wrong, and suffer the consequences if found to be in violation at a later date. Simply because an ISP has decided to fight the system and lost doesn’t mean the entire system is broken.”

Cloudflare’s desperate new strategy to protect pirate sites — Devlin Hartline on the latest litigation involving Cloudflare. “In April of 2015, several record label plaintiffs sued MP3Skull for copyright infringement, easily obtaining a default judgment when the defendants failed to respond to the suit. Earlier this year, the plaintiffs were granted a permanent injunction, which the defendants quickly flouted by setting up shop under several different top-level domains. Naturally, the common denominator of these multiple MP3Skull sites was that they used CloudFlare. The plaintiffs’ lawyers sent a copy of the injunction against the pirate sites to CloudFlare, asking it to honor the injunction and stop supplying services to the enjoined domains. But, as with Grooveshark, CloudFlare again refused to comply.”

Appeals Court Upholds U.S. Government’s Seizure of Megaupload’s Mega-Millions — The Fourth Circuit is having none of Dotcom’s nonsense, rejecting all his arguments in the civil asset forfeiture proceeding that is running concurrent with the criminal case. In part, the appellate court relied on evidence from the district court that Dotcom intended to avoid prosecution, writing, “For example, Kim Dotcom posted a message to Twitter stating ‘HEY DOJ, we will go to the U.S. No need for extradition. We want bail, funds unfrozen for lawyers & living expenses.’ The court rightly found this and other public statements to strongly suggest Dotcom was resisting extradition to posture for criminal proceedings, using the ability to avoid prosecution as leverage.”

It’s Guest Blog Wednesday featuring Tom Kennedy! — An interview with Tom Kennedy, executive director of the American Society of Media Photographers, who, along with American Photographic Artists, Digital Media Licensing Association, Graphic Artists Guild, Nature Photographers of North America, National Press Photographers Association, and Professional Photographers of America (PPA), have been working hard to create a copyright small claims process in the US Copyright Office.

What happens now after the German Federal Constitutional Court’s Metall-auf-Metall Decision? — Last May’s decision in Metall-auf-Metall reversed a lower court decision finding the use of a non-licensed sample was infringing. As Martin Schaefer at Kluwer Copyright Blog explains, “the use of an excerpt of copyright-protected subject matter can be recognised as a means of artistic expression and artistic design.” And “If there is a conflict between artistic freedom on the one hand and an infringement of copyright or neighbouring rights on the other – an infringement which only slightly impairs the exploitation of those rights – the rightholder’s interest in exploiting those rights may have to give way to artistic freedom.”

Judge Upholds $25 Million Judgment Against ISP Over User Piracy — This week, Judge O’Grady denied Cox’s motion for judgment as a matter of law following a jury verdict that held the ISP liable for copyright infringement. Particularly instructive is O’Grady’s discussion of contributory infringement.

No, The FCC Should Not Have the Power to Cancel Contracts — Kristian Stout at Truth on the Market weighs in on the Copyright Office’s letter explaining the copyright implications of the FCC’s set-top box proposal. Says Stout, “The truth is that Section 106 sets out a general set of rights that inhere in rightsholders with respect to their protected works, and that commercial exploitation is merely a subset of this total bundle of rights. The ability to contract with other parties over these rights is also a necessary corollary of the property rights recognized in Section 106. After all, the right to exclude implies by necessity the right to include. Which is exactly what a licensing arrangement is.”

Art of the Title: Stranger Things — Michelle Dougherty, Creative Director at Imaginary Forces, discusses how the title sequence to Stranger Things, Netflix’s hit summer series, was created.

Can Twitter Fit Inside the Library of Congress? — “In 2010, the Library of Congress and Twitter announced a historic and incongruous partnership: Together, they would archive and preserve every tweet ever posted, creating a massive store of short-form thoughts… Six years after the announcement, the Library of Congress still hasn’t launched the heralded tweet archive, and it doesn’t know when it will. No engineers are permanently assigned to the project. So, for now, staff regularly dump unprocessed tweets into a server—the digital equivalent of throwing a bunch of paperclipped manuscripts into a chest and giving it a good shake.”

Veteran Photographers Say Working for Free has Rarely Paid Off — A number of working photographers share their thoughts on that ever-present expectation for creative professionals to provide their services for free. “There are, of course, certain jobs that a visual journalist must look at and see if taking it on for free is worth it. But overall, doing free work is generally a terrible business practice, according to NPPA board member Brad Smith.”

To Promote American Innovation, We’ve Got to Modernize This Office — Jessica Higa and Alden Abbott of the Daily Signal write, “It is surprising that the Copyright Office is part of the Library of Congress. Copyrights are handled apart from patent grants, which are housed (along with trademarks) in a separate executive agency, the Patent and Trademark Office. The Library of Congress also exists to share information, while the Copyright Office exists to protect intellectual property. The Copyright Office must keep up with digital technology, an important medium for intellectual property. In spite of this, it has been forced to share with the Library of Congress a location, personnel, and what is—for the Copyright Office’s purposes—an extremely antiquated information technology system.”

Music Remixing vs. Remastering: What was licensed in the ABS v. CBS lawsuit? — Washington School of Law Professor Sean O’Connor provides an analysis of the recent decision that found that remastering a sound recording was sufficient to create a new copyrighted work. The case presents many complex issues, including pre-1972 sound recordings. In addition, O’Connor looks at the court’s confusion between the industry practices of mixing and mastering.

Kickass torrent storm: In fight against global piracy, India sets the right examples — “India is definitely on the right track in its fight against piracy, not just in terms of user-engagement, but also on the legal front. Earlier this week, the Delhi High Court too ordered the banning of over 70 websites hosting such content. For once, the West could take a cue from this rising nation on how to prioritise its fight against piracy.”

Improving YouTube’s Content ID could help creators of all stripes — Ellen Seidler writes, “Clearly, Google needs to do a much better job in providing access and accountability with its Content ID and monetization programs. Expand outreach to indie artists. Include them in discussions about how to improve Content ID. Update the interface to make it more intuitive and user-friendly. Open the books so that creators can see exactly how much revenue is earned and where it goes. Be innovative and use Content ID to open new avenues to legitimate use of copyrighted content.”

FCC Set-Top Box Proposal Is About Copyright — Following a request from a number of Representatives, the US Copyright Office this week weighed in on the potential copyright implications of the FCC’s set-top box proposal, concluding that it indeed impacted copyright interests in a way that exceeds the FCC’s authority. David Newhoff breaks it down here.

Open Letter to 2016 Political Candidates — With the conventions of both parties now officially wrapped up, the US starts the 101 day march to the general election. Click the link to add your name to an open letter to all candidates discussing the importance of copyright.

What it takes to be a ‘Ghostbusters’ stuntwoman — “‘Ghostbusters’ shot for four months in Boston, and the stuntwomen trained even while on location. Most days on set, the women challenged one another to handstand contests. They worked out between rehearsals, went to a Parkour gym on days off, and hit mitts in the park. The life of a stuntwoman is to always be training. ‘I always do gymnastics to keep up my body awareness,’ Richardson said of her weekly training habits. ‘I also do judo and Kung Fu and then sometimes driving stuff with one of my friends who is great on motorcycles.'”

The Stories Behind Stranger Things’ Retro 80s Props — A lot of people, including me, have thoroughly enjoyed Netflix’s new series Stranger Things, which premiered July 15. A big part of the show’s appeal is its accurate portrayal of 1980’s Indiana. Wired Magazine talks with the show’s propmaster, Lynda Reiss, who played a critical role populating the world of Stranger Things with the objects that reflect that accuracy.

Why we Love Fair Use — CreativeFuture’s Ruth Vitale explains, “We love fair use because all creativity is a ‘dialogue,’ or an interchange of ideas and inspiration from one artist to another. Fair use is a uniquely American concept; it protects both the original creator and creators who fairly use parts of others’ works. Fair use is a fundamental principle of freedom of expression. And that is the core of creativity.”

Videos From U.S. Copyright Office Moral Rights Symposium “Authors, Attribution & Integrity” Now Available Online — Last April, the Copyright Office, along with the Center for Protection of Intellectual Property, hosted a full day symposium to discuss moral rights in the US. Videos and transcripts of the proceedings are now available. Worth a look if you missed it the first time around.

Copyright Concerns Are Torpedoing The FCC Set Top Box Plan. Why That’s Good For Consumers — Over at Forbes, Larry Downes explains why the FCC’s recent set-top box proposal is not a necessary incursion in the market—the television landscape is innovative and delivering some of the best shows and programs we’ve ever seen. Worse, it threatens to undermine the framework that makes that innovation possible. Also see Kevin Madigan’s article on why a recent response attempting to dismiss the copyright concerns is misguided, Letter on FCC Set-Top Box Regulation Once Again Confuses the Issue.

Dark Patterns are designed to trick you (and they’re all over the Web) — Ars Technica discusses “deliberately confusing or deceptive user interfaces”, which intentionally or inadvertantly drive web users to do things they might not otherwise have, like “setting up recurring payments, purchasing items surreptitiously added to a shopping cart, or spamming all contacts through prechecked forms on Facebook games.”

Jane Ginsburg, Overview of Copyright Law — Ginsburg has posted her chapter from the forthcoming Oxford of Intellectual Property. A great look at copyright’s history, philosophy, and doctrine. This passage from her conclusion is worth quoting here:

Copyright law secures human creativity in works of authorship. Enforceable authorial property rights advance the public interest by promoting an ecosystem of authorship: a robust copyright environment encourages authors to create works that inform and enrich the polity, and from which other authors may draw ideas, information and reasonable amounts of protected expression in their own authorial endeavors. Copyright promotes artistic freedom and free speech by enabling authors to earn a living from their creativity.

What Does Madonna’s Court Victory Mean For Sampling? — Future of Music Coalition takes a closer look at last month’s Ninth Circuit decision in VMG Salsoul v. Ciccone, which concerned the alleged use of a digital sample by Madonna in her 1990 track Vogue.

Owner of Most-Visited Illegal File-Sharing Website Charged with Criminal Copyright Infringement — The DOJ announced this week that it has charged the alleged owner Kickass Torrents with four counts related to his operation of the site, which allegedly enabled illegal reproduction and distribution of copyrighted works on a massive scale. This represents the most significant criminal copyright effort in the US since the 2012 indictment of Kim Dotcom and other operators of Megaupload.

Indie designer accuses Zara of stealing work, Zara says artist’s work isn’t ‘distinctive’ — “Tuesday Bassen is a Los Angeles-based clothing and accessories designer whose work refers heavily to comic book illustrations and a 1950s girl gang aesthetic. Her popular logo ‘mixed emotions club,’ emblazoned across the back of a satin baseball jacket, as well as pins and patches, has become a sort of coveted alt-girl version of the Birkin bag. It’s not as if Bassen is entirely unknown (she told the Daily Dot her website gets about 8,000 visitors per day), which is why she was taken aback by Zara’s response to a cease-and-desist notice her attorney sent the giant corporate fashion house after it appeared to have completely ripped off Bassen’s work.”

CISAC: 90 Years In The Service Of Authors And Composers — “Founded in June 1926 by a small group of authors’ societies, with its headquarters in France and four regional offices, CISAC now represents the interests of more than 4 million creators across the world, from all artistic and literary fields. Now leading CISAC is electronic music pioneer Jean-Michel Jarre in cooperation with a highly multicultural and interdisciplinary group.”

H.R.5757 – To amend title 17, United States Code, to establish an alternative dispute resolution program for copyright small claims, and for other purposes. — On Wednesday, Representatives Jeffries and Marino introduced a bill that would create a copyright small claims process that would allow creators who can’t afford federal court to pursue infringement claims. The Copyright Office detailed the problem and recommended the creation of such a process in a 2013 report. As of posting date, the text of the bill is not yet online, but should be up within the next couple of days.

New Librarian of Congress Faces Copyright Modernization — This week, the Senate confirmed Dr. Carla Hayden as Librarian of Congress. Among the challenges she’ll face when she assumes the role is outdated IT both in the Library and in the Copyright Office, which is housed within the Library. Bloomberg reports, “The office’s services play a direct role in the conduct of business in significant industrial sectors that depend on copyrights, and the technological challenges faced by the agency are critical to those transactions, according to Robert Brauneis, a copyright law professor at George Washington University. For example, when copyright owners record their copyright interests, ‘they actually have to print a copy, put it in an envelope with stamps on it, and send it off in snail mail,’ Brauneis said. ‘Multimillion dollar transactions depend on registration getting processed quickly and documents getting processed quickly.'”

Senators ask feds to look at digital ad fraud — When so much content on the internet depends on ad revenues, the issue of fraudulent ad traffic raises concerns. Senators Schumer and Warner Monday asked the FTC to take a look at the issue. “A 2015 industry study cited by the lawmakers estimated that advertisers would lose more than $7 billion to this kind of activity this year.”

Amazon’s Chinese Counterfeit Problem is Getting Worse — CNBC reports, “Always a problem, the counterfeiting issue has exploded this year, sellers say, following Amazon’s effort to openly court Chinese manufacturers, weaving them intimately into the company’s expansive logistics operation. Merchants are perpetually unsure of who or what may kill their sales on any given day and how much time they’ll have to spend hunting down fakers. Facebook and WhatsApp groups have formed for sellers to voice their complaints and strategize on potential fixes. In May, CNBC.com reported on a Facebook group, now consisting of over 600 people, whose members have seen their designs for t-shirts, coffee mugs and iPhone cases show up on Amazon at a fraction of the price of the originals. The designers described it as a game of whack-a-mole, where fakes pop up more quickly than they’re taken down.”

Sharing Netflix Passwords Hasn’t Become a Felony — Snopes debunks reports (encouraged in part by the EFF) that a recent court decision would lead to jail time for sharing passwords. Says Snopes, “[T]he operative factor was that the case involved had nothing at all to do with streaming, Netflix, HBO Go, Facebook, or other services by which users commonly share passwords for myriad reasons. The specific issue was lack of authorization and deliberate intent to circumvent access revoked in an employer-employee capacity. Extrapolating that such a ruling might affect Netflix users wasn’t out of the bounds of possibility, but was unnecessarily alarmist given the scope of the ruling.”

The IP Platform: Supporting Invention & Inspiration — Last fall, the Center for Protection of Intellectual Property hosted a conference exploring how IP, including copyright, operates as a platform supporting invention and inspiration. The George Mason Law Review this week published its summer issue containing articles originating from that conference. Lots of great stuff, including a piece on copyright and remix by me.

‘Courts Have Twisted Themselves Into Knots’: U.S. Copyright Protection for Applied Art — Copyright scholar Jane Ginsburg looks at the issue of conceptual separability, which distinguishes between what is protected by copyright and what is not for useful articles. This question is currently in front of the Supreme Court, which will hear Varsity Brands v. Star Athletica next term.

Canada’s Accession to Marrakesh Treaty Brings Treaty into Force — Says WIPO, “Canada today became the key 20th nation to accede to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, which will bring the Treaty into force in three month’s time on September 30, 2016.” The treaty requires parties to adopt copyright provisions that permit the copying and distribution of published works in accessible formats such as Braille.

The Trusted Notifier Program: Outcomes of First Referrals by MPAA — In February, film studios reached an agreement with the Donuts domain name registry that created a framework for notifying the service of sites engaged in clear and pervasive infringement. Recently, Donuts revealed some early outcomes of the program so far. In a blog post, the registry announced that two sites were confirmed to be engaged in infringement, and Donuts suspended their domain names. A third referral is being investigated further.

America must be as independent in literature as in Politics, as famous for arts as for arms.

Noah Webster (1758-1843)

Copyright Small Claims Court: Not Just a Dream — “For decades, copyright infringements worth a few thousand dollars in damages have frustrated photographers, because suing ‘small’ infringers in federal court costs $30,000 or more. Finally, there’s hope for a solution: a Copyright Small Claims Tribunal that would give photographers and other copyright owners access to the legal system at a much lower cost.”

Creators frustrated with Copyright Office’s outdated technology, procedures — “According to industry representatives and creators, the system discourages groups from registering their copyrights. Some songwriters and makers of standardized tests delay or avoid registering because they do not trust the office’s computer security. Newspapers must be submitted in the form of costly and increasingly redundant microfiche, driving some to avoid registering altogether. Others simply get fed up with the office’s clunky registration process. When creators don’t register, people like Kempner struggle to find an owner if they want to buy a work. Skipping registration also severely limits the legal recourse a creator can pursue if their work is used illegally.”

1,000 Artists Including Coldplay, Lady Gaga, Ed Sheeran Write Letter to European Leaders Over YouTube — The letter, calling “for Europe’s leaders to address the value gap that exists between digital music consumption and revenues returned by user-generated services like YouTube” follows a similar one appearing in US publications.

Citing Kirtsaeng, Publishers Ask Judge to Deny Legal Fees in GSU Case — The publishers cite to the Supreme Court’s decision that directs courts to put substantial weight on the objective reasonableness of a losing party’s litigation positions and argue that the case represented “a quintessential example of the type of ‘useful copyright litigation’ that is to be encouraged.”

Seven things we’ve learned from the first year of Apple Music — “1) You don’t need a free tier to get people to pay.”

The STAR TREK Fanfilm Guidelines Saved Fanfilms — “The basic creativity of fans can be allowed to flourish while the people who own the property feel like they’re not getting screwed. Because the reality is that without rules like these the only other options are for the property owner to just throw up their hands and let anyone make and sell stuff based on their IP (coming this fall: Disney’s fanfilm of Batman!) or be truly draconian and allow nothing at all, to cruise YouTube all day sending takedown notices for any small, goofy fanwork.”

The Second Circuit is set to consider Fox News v TVEyes, with both parties having submitted their briefs (see Fox News brief and TVEyes brief). The appeal represents the latest evolution of the “transformative use” standard that Judge Pierre Leval first wrote about in his seminal 1990 Harvard Law Review article, Toward a Fair Use Standard.

When Judge Leval articulated his idea of “transformative use” as the key to understanding fair use, his goal was to provide “a better understanding of fair use and greater consistency and predictability of court decisions.” He perhaps could not foresee just how expansively this idea would broaden fair use. 1See Statement of Professor June Besek at a hearing in front of the House Judiciary Committee on fair use for one account of this expansion.

In fact, when the Supreme Court embraced Leval’s “transformative use” in Campbell v. Acuff-Rose just a few years after his article was published, it took care to limit any future expansion. While the Court noted that the fair use doctrine should recognize that a parody of a copyrighted work “must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable”, it followed up by remarking, “This is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot free.” And the Court, though finding the work at issue to be a transformative parody, stopped short of declaring it fair use. It remanded to the lower court on the issue of the amount and substantiality of the original work used, saying, “we express no opinion whether repetition of the bass riff is excessive copying, and we remand to permit evaluation of the amount taken, in light of the song’s parodic purpose and character, its transformative elements, and considerations of the potential for market substitution sketched more fully below.” 2The parties subsequently settled; see Did Campbell v Acuff-Rose find 2 Live Crew’s song to be fair use?

Justice Kennedy was even more cautious in a concurring opinion that he wrote. While he agreed with the majority’s conclusion, he wrote separately to reiterate “the importance of keeping the definition of parody within proper limits.” He concluded by saying, “If we allow any weak transformation to qualify as parody, … we weaken the protection of copyright.”

Over 20 years later, Judge Leval would revisit the doctrine he invented in the Google Books case, Authors Guild v Google. And if he didn’t contemplate the limits of transformative use in his original article, he recognized them here, beginning his opinion by writing, “This copyright dispute tests the boundaries of fair use.”

Although Leval’s ultimate holding that Google’s copying was fair use can seem astonishing in its breadth, his opinion at least recognizes potential outer limits of the doctrine. He took care to confirm that a “would-be fair user of another’s work must have justification for the taking” (emphasis added). 3See What did Google Books Decision do to Cariou v Prince for a discussion of Leval’s focus on justification. He observed that Google’s copying is done to provide “dissemination of information about the original works”, not “the re-transmission, or re-dissemination, of their expressive content.” He noted that while Google makes copies of entire works, it does not “reveal” those copies to the public—the copying is done to create a searchable index, and Google provides snippets of the copies, but only enough to provide context to help a searcher “evaluate whether the book falls within the scope of her interest.” And finally, he held that a secondary user like Google, who makes copies for an internal, transformative purpose, must employ security measures to ensure it does not unreasonably expose copyrighted works to the public.

If Google Books tested the outer bounds of fair use, TVEyes threatens to break them.

TVEyes is a video news clipping service which “monitors and records all content broadcast by more than 1,400 television and radio stations twenty-four hours per day, seven days per week, and transforms the content into a searchable database for its subscribers.” 4Fox News Network v TVEyes, 43 F.Supp. 3d 379 (SDNY 2014). For $500 a month, subscribers can play unlimited high definition clips from TVEyes’ database, archive them online, download them to their own devices, and email and share them with unlimited numbers of nonsubscribers. And TVEyes offers all of this without having permission from any copyright owner or broadcaster. 5Nor, for that matter, from the MVPDs it used to receive content. Satellite MVPD DirecTV sued TVEyes for alleged unlawful retransmission of a pay-TV signal. The two parties reached a settlement in November 2015, with TVEyes agreeing to cease obtaining content for its service from DirecTV. See DirecTV Settles Fight Against TVEyes. In July 2013, Fox News Network sued TVEyes for copyright infringement. TVEyes claimed fair use.

What’s astonishing is not the sheer breadth of what TVEyes sought. What’s astonishing is that the District Court agreed. 6See Fox News v TVEyes: Fair Use Transformed for more discussion about the decision. In a September 2014 decision on cross motions for summary judgment, the Southern District Court of New York held that “TVEyes’ copying of Fox News’ broadcast content for indexing and clipping services to its subscribers constitutes fair use.” The court called for further development of the record regarding other functions provided by TVEyes. On renewed motions for summary judgment, the court held that TVEyes’ archiving function—which enabled subscribers to save an unlimited number of clips indefinitely—was fair use, and its emailing feature could be fair use provided it “develops and implements adequate protective measures.” However, it did hold that its downloading feature and date/time search functions were not a fair use.

There would seem to be a clear cut case against fair use on all counts. TVEyes’ purpose for copying 1,400 stations 24/7 is to deliver portions of them wholesale to its subscribers. It is a for-profit entity financially benefiting from providing access to the works. It does not transform the works in any way save to index them. The nature of the works being copied runs across the entire spectrum, from factual to fictional, from news to entertainment and more. Entire works are being copied. While TVEyes doesn’t deliver entire works, only clips up to 10 minutes, there is no limit on the clips, and subscribers can easily piece together entire programs (in high resolution). And the market harm was clearly established by the record—there is not only harm to existing, “traditional” television revenue sources but also to existing clip licensing markets and emerging online revenue sources.

But the court read the record in an idiosyncratic way and applied a number of novel concepts unsupported by case law. It primarily fixated on potential fair uses of the works by TVEyes’ subscribers such as media criticism—and that, in enabling such uses, TVEyes’ own copying and delivery of copyrighted works becomes fair use.

On appeal, TVEyes argues that the court didn’t go far enough. It is asking the Second Circuit to hold that all of its functions, including email, download, and date/time search, are “protected fair use.” TVEyes focuses almost entirely on what it enables its subscribers to do, asserting that its services allow them to engage with the copyrighted works in putative transformative purposes—essentially arguing that it should be allowed to stand in the shoes of its customers when it comes to fair use.

If the Second Circuit were to accept these arguments, it would undermine the principles that fair use is based on and, consequently, the principles of copyright law itself.

Fair use has historically been seen as a corollary to copyright law, available in those circumstances when unauthorized use of an existing work furthers rather than impedes the aims of copyright. 7See Campbell v. Acuff-Rose, 510 US 569, 574 (1994), “From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts…’; Harper & Row, Publishers v. Nation Enterprises, 471 US 539, 549 (1985), quoting H. Ball, Law of Copyright and Literary Property 260 (1944), “[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.” It is necessarily limited—in ordinary cases, securing authors’ exclusive rights furthers the aims of copyright, and the market promotes “the progress of science and the useful arts.” Fair use serves as a complement by either privileging certain justified uses like news reporting and criticism, or excusing uses that by custom are considered reasonable or outside an author’s control. 8See A. Latman, Fair Use of Copyrighted Works, Copyright Office Revision Study 14 (1958). Some, including Leval, have described fair use as a mechanism for drawing a boundary line between protected and unprotected uses. 9See Google Books at 213, stating the crucial fair use question was “how to define the boundary limit of the original author’s exclusive rights”; Folsom v Marsh, 9 F. Cas 342 (D. Mass. 1841), “no one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy. A wide interval might, of course, exist between these two extremes, calling for great caution and involving great difficulty, where the court is approaching the dividing middle line which separates the one from the other.”

But however fair use is conceptualized, it should be self-evident that too broad of an application would undermine the goals of copyright instead of promoting them. As Justice Kennedy said in his Campbell concurrence, “[U]nder-protection of copyright disserves the goals of copyright just as much as overprotection, by reducing the financial incentive to create.” Unless one does not see any value in copyright, and views fair use as merely a mechanism for nullifying the protections authors currently see under the law, one should recognize that fair use has its proper limits. We’ll see if the Second Circuit finds that TVEyes goes beyond those limits.

References   [ + ]

1. See Statement of Professor June Besek at a hearing in front of the House Judiciary Committee on fair use for one account of this expansion.
2. The parties subsequently settled; see Did Campbell v Acuff-Rose find 2 Live Crew’s song to be fair use?
3. See What did Google Books Decision do to Cariou v Prince for a discussion of Leval’s focus on justification.
4. Fox News Network v TVEyes, 43 F.Supp. 3d 379 (SDNY 2014).
5. Nor, for that matter, from the MVPDs it used to receive content. Satellite MVPD DirecTV sued TVEyes for alleged unlawful retransmission of a pay-TV signal. The two parties reached a settlement in November 2015, with TVEyes agreeing to cease obtaining content for its service from DirecTV. See DirecTV Settles Fight Against TVEyes.
6. See Fox News v TVEyes: Fair Use Transformed for more discussion about the decision.
7. See Campbell v. Acuff-Rose, 510 US 569, 574 (1994), “From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts…’; Harper & Row, Publishers v. Nation Enterprises, 471 US 539, 549 (1985), quoting H. Ball, Law of Copyright and Literary Property 260 (1944), “[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.”
8. See A. Latman, Fair Use of Copyrighted Works, Copyright Office Revision Study 14 (1958).
9. See Google Books at 213, stating the crucial fair use question was “how to define the boundary limit of the original author’s exclusive rights”; Folsom v Marsh, 9 F. Cas 342 (D. Mass. 1841), “no one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy. A wide interval might, of course, exist between these two extremes, calling for great caution and involving great difficulty, where the court is approaching the dividing middle line which separates the one from the other.”

Responding to Piracy: What the evidence shows — In previous installments, the authors of this post looked at “available academic evidence on whether piracy harms media sales, and whether this harm leads to reductions in the supply of creative works,” finding that “most all the studies on the first question conclude that piracy does have an adverse effect on sales, and there is also evidence of an adverse effect on the supply of new works.” Here, they look at research that considers what can be done to shift consumers from illegal content to legal content, focusing on two strategies: making legal content easier to access, and making pirated content harder and more costly to access.

Facebook Signs Deals With Media Companies, Celebrities for Facebook Live — One does not live on user-generated content alone. The Wall Street Journal reports that Facebook has entered into over 100 contracts with media companies and individuals totaling over $50m to provide video content for their Facebook Live platform. See also YouTube Red buys its first big TV series.

To Fee or Not to Fee: Kirtsaeng v John Wiley & Sons — I have a post at CaseText discussing last week’s Supreme Court decision in Kirtsaeng II, which held that courts should focus on the objective reasonableness of parties’ litigation positions but consider all other relevant factors when determining whether to award attorney’s fees.

Taylor Swift, Paul McCartney Among 180 Artists Signing Petition For Digital Copyright Reform — Rob Levine reports on a letter published this week, signed by 180 recording artists and others, including Taylor Swift, Paul McCartney, and Little Big Town. The letter calls for reform of the DMCA safe harbors.

Who owns the news consumer: Social media platforms or publishers? — The Columbia Journalism Review presents research it has undertaken to see how newsrooms are using social media and online publishing platforms to disseminate news stories. A thorough look at a very dynamic area.

Turow: “The Protection of Copyright Is Deeply Related to the Protection of Creativity” —  Scott Turow: “I suspect that creativity tends to be inspired by the artist’s fantasy that her or his work is destined to find an audience that places value on it. That doesn’t presuppose earning vast riches. The effort a reader makes by going to the library is enough to make most authors feel valued. But the notion that work will be stolen and tossed into the wind defeats the artistic enterprise.”