Tuesday, December 20, 2005

Fair Use: The Source Copy

Should the fair use analysis be affected by whether the source from which the copy is made is authorized? The issue is a recurring one, and has taken on increased importance in the digital environment, but remains unsettled. In Time, Inc. v. Bernard Geis & Associates, 293 F. Supp. 130, 146 (S.D.N.Y. 1968), surreptious copies of stills from the Zapruder films of the John Kennedy assassination were made. While this troubled the court, the fact that defendant could have obtained the copies by other means was viewed as significant. This was particularly instructive since the court had earlier said that fair use "presupposes good faith and fair dealing," something that was entire absent in the case itself. By contrast, in Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 832, 843 (Fed. Cir. 1992), the Federal Circuit took a harsh line on copying from unauthorized copies.

In Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985), defendant had knowing, unauthorized access to a temporarily "purloined" manuscript copy of Gerald Ford's then unpublished memoirs. Unlike in the Time-Geis case, unauthorized access was the only way to get access to the work "at the time." Before the district court, the purloined nature of the copy went into the mix of finding no fair use. Before the Supreme Court, the majority was also disturbed by the knowing copying from a purloined manuscript, while the dissent regarded it as a standard journalistic practice. These two views are not necessarily in conflict, but the key to Harper & Row is the fact that the work was intercepted on the way to being published: there was no effort by the copyright owner to suppress information.

The issue of the source of the source copy also takes place as part of a larger debate over the role, if any, of good faith in fair use analyses. Judge Pierre Leval of the Second Circuit, in his legendary 1990 Harvard Law review article, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1105, 1126-1128, argues strongly against good faith being a factor. In NXIVM Corp. v. Ross Institute, 364 F.3d 471 (2d Cir. 2004), also involving unauthorized access to a manuscript, citing Harper & Row and my 1995 fair use treatise, Chief Judge John Walker, writing for the panel majority, held that district courts should consider whether bad faith is present in defendant's acts, but declined to follow the Federal Circuit's tough line, and noted that "even if the bad faith subfactor weights in plaintiff's favor, the first factor still favors defendant in light of the transformative nature of the secondary use as criticism." This seems right on target. Judge Jacobs, concurring, thought that "[b]ad faith is a slippery concept in the copyright context...," and noted that the purpose of the use in that case was to criticize plaintiff's work as "the pretentious nonsense of a cult."

One question in all good or bad faith determinations is good or bad faith as to what? What is the conduct that we wish to encourage or discourage?


thos said...

The issue of abusive control of information might be better addressed at the remedial level, where public policy or exercise of judicial discretion may deny a remedy to a copyright owner otherwise entitled. Take, for example, the 1985 UK case, Lion Laboratories v Evans, where defendants sought to publicise the inaccuracy of plaintiffs' alcohol breath-testing device. Interim injunction denied on public interest grounds. "Fair use" is not always the solution to a perceived problem about the extent of protection.

William Patry said...

Former Chief Judge Oakes of the Second Circuit wrote an interesting article about the impact of injunctive relief on fair use determinations, "Copyrights and Copyremedies: Unfair Use and Injunctions," 18 Hofstra L. Rev. 983 (1990).

kww said...

per thos's comment - judges here in Florida have thrown out scores of DUI cases because the breathalyzer source code is not available to the defendant. The manufacturers are worried about trade secret disclosure.

Also, per Prof. Patry's post, Atari filed an impending litigation notice with the Copyright Office to obtain Nintendo's source code which it had trouble deciphering via chemical peels and clean room techniques. This trickery counted against Atari as the court found that Atari was precluded from a fair use defense since its copy was not authorized. (But can't one technically assume that there would, indeed, be pending litigation given the circumstances of the case? One of my profs found it to be quite strategic. But I think he was kidding. I hope.)

Anyway - it is important because in other interoperability cases, courts have found some amount of literal infringement was okay - for the sake of interoperability (see Sega v. Accolade - the appeal, not the district court which cites Prof. Patry!). So maybe Atari's arguable bad faith was more damaging than they could have realized.

William Patry said...

I would like to think I have learned a bit more since the passage from me cited in the Sega case. The access via the deposit copy in the Atari case occurred while I was at the Copyright Office, and I remember the circumstances quite well. There was talk at the time of referring the matter to the Justice Department for possible criminal prosecution, but nothing came of it.

gemlawyer said...

To me, these perennial discussions of good/bad faith in fair use are really little more than pointless pontifications about the evils of infringement.

As the good Professor asks, what is "bad faith"? To me, it would be copying for no other reason than to advance the interests of the copier, whether commercial or otherwise. But this is clearly covered by the first factor--how is "good" or "bad" faith not encompassed by a consideration of the "purpose and character of the use"?

It would seem that any consideration of "faith" would be duplicative.

William Patry said...

gemlaywer raises some good points.

Since fair use is an unconsented to use, the mere fact that permission wasn't sought, or was sought and refused, can hardly matter: in 2 Live Crew, the Supreme Court indicated that it wanted to encourage people to ask for permission. So what would bad faith be?

In the Nation case, it was knowingly receiving an unauthorized manuscript for the purpose of scooping the authorized release. But what if it was a Pentagon papers like situation, or the current NSA spying? Leaving aside the lack of protection because of Section 105, the fact that the work was intended to be kept unpublished might, as Judge Leval has written, actually argue in favor of fair use.

The Atari case is another example, where there was, as I recall, false statements made to gain access to a deposit copy for the purpose of reverse engineering. But if the reverse engineering was otherwise OK, say because it was being done to study a process, at least Judges Leval and Jacobs believe that bad behavior should be dealt with separately; in Atari's case say by a criminal prosecution. I doubt the majority in the harper & Row Court would agree, however, and perhaps there is a spill-over from the (historically false) view that fair use is an equitable doctrine.