West Publishing just put out a "new" treatise of mine on fair use in copyright. Here is a link to buy it ($200, free shipping!). "New" is in quotes because the book goes back to 1985, when BNA published the first edition. The book got off to a good start: the week after it was published the Supreme Court cited it in its Harper & Row, Publishers v. Nation Enterprises opinion, the case about the Nation magazine's unauthorized publication of excerpts from former President Gerald Ford's memoirs before those memoirs were published. The Court later cited it in the 2 Live Crew parody case, as have lots of lower courts. In 1995 a second edition was published. But the book languished beginning in the late 1990s and went out of print. I discovered it was out of print in a funny way: I was asked for two copies of it by an erstwhile client. I called up BNA and asked for the copies. They said they doubted they had them because the book was out of print and they had destroyed all the copies. This was news to me, but at least all rights reverted to me. (This didn't include, btw, the electronic files which were on a funky proprietary system).
In my contract for the book with West, the problem of not notifying the author when the book goes out of print is well taken care of: under the rights given to West for the "new" book, the book can't ever go out of print even if West decides never to publish another copy and pulls it off of Westlaw. Gone, apparently, are the days when authors had their copyrights revert when the book goes out of print, but let's thank our stars for the termination rights in Section 304.
Anyway, to continue the saga of the out of print fair use book. In 2007, West published the 7 volume, 6,000 page general treatise on copyright I wrote. Given that the fair use treatise was out of date, I folded into that general book most of the old fair use treatise as Chapter 10, revised and updated to about 500 pages. (Since I didn't have the electronic files, see above, this meant OCR'ing the hard copy and a lot of clean-up work).
I have come to think though, given the increased importance of fair use, and the fact that the fair chapter was lost amongst the 6,000 pages of the larger treatise, that I should spin it off into its own book again, so that's what this "new" book is. While it remains part of the 6,000 general treatise, the spin off has two new chapters not found in the general treatise. One chapter is on the early 18th century English cases from whence fair use arose, and the other chapter is on current international issues. The old English cases are both interesting and important for showing the boldness of the common law judges in forging the doctrine. I expect to expand the international chapter in the next edition given the increased importance of limitations and exceptions and the debates about the three-step test.
The book will be updated once a year and will be reissued every year as a new soft copy to avoid those ultra-annoying pocket parts as well as loose-leaf inserts.
Showing posts with label fair use. Show all posts
Showing posts with label fair use. Show all posts
Monday, June 08, 2009
Friday, July 11, 2008
Eleventh Circuit: Fair Use, Laches, and Kitchen Sink
The Eleventh Circuit has been on a copyright tear in the last two weeks. In addition to the en banc opinion in the Greenberg - National Geographic Society case, there was a highly technical opinion on the Satellite Home Viewer Act and the Section 119 compulsory license, as well as today's opinion: Peter Letterese & Associates, Inc. v. World Institute of Scientology Enterprises, a 69 page opinion by Judge Tjoflat. The opinion is so vast that he has a introductory section explaining its organization.
So what, you might ask, caused so many trees to be felled and ink to be spilled? There are almost 10 pages of facts, for one thing. I will boil the facts down to this: there was a guy (Leslie Achilles "Les" Dane) who developed a sales book on closing techniques. L. Ron Hubbard liked it, bought some copies, and began teaching its techniques. For many years, Dane and the Scientologists had a good working relationship; Dane went to many Scientology offices and gave seminars. Dane died and a different company, run by a booted-out Scientologist (Peter Letterese), bought Dane's copyrights and sued the Scientologists.
The first issue to be discussed was whether a derivative work was created. Here the facts are unclear to me, but in one part of the opinion it is stated that the Scientologists "did not make copies of the book itself; students would either borrow or purchase the book for their study." The Scientologists did, though, produce their own course book, and may have appended some of Dane's material to it without copying that material. This seems to be what led the Eleventh Circuit to trash-talk the Ninth Circuit's Mirage Editions v. Albuquerque A.R.T. Co., 856 F.3d 1341 (9th Cir. 1988) opinion, which held that remounting an original copy was an infringing work. No way according to the Eleventh, siding with Judge Easterbrook's opinion in Lee v. A.R.T. Co., 125 F.3d 582 (77th Cir. 1997).
There are then 15 pages on whether the two course books were substantially similar. I can sum that up in one word, "no." Next up was fair use, 28 pages. There are a few interesting passages in that discussion. The first is the court of appeals' rejection of the district court's "fifth factor," which it called "the copyright owner's actual consent to the use of the copyrighted material." This factor was held by the court of appeals to be "incorrect, both in terms of logic and precedent." If someone has consented, then one need not rely on fair use, which is a privileged, unconsented to use. The rest of the fair use opinion is straightforward enough, but there is a discussion of out of print books worthy of reading. The court held that the fact that a book is out of print will tend to favor fair use (p. 46-47). But in this case, the plaintiff withheld the book in order to make a decision about when and how to re-release it; hence the book was not out-of-print in the usual sense, i.e., no immediate plans to republish it.
The final part of the opinion deals with whether laches is available for causes of action brought within the statute of limitations period. I have blogged about this before, and my view, siding with the Fourth Circuit's Lyons opinion, is no, it is not. The Eleventh Circuit couldn't bring itself to say "no, never," but did say a: "presumptive 'no;' there is a strong presumption that a plaintiff's suit is timely if it is filed before the statute of limitations has run. Only in the most extraordinary circumstances will laches recognize a defense." The court added,: "Even where such extraordinary circumstances exist, however, laches serves as a bar only to the recovery of retrospective damages, not to prospective relief."
So what, you might ask, caused so many trees to be felled and ink to be spilled? There are almost 10 pages of facts, for one thing. I will boil the facts down to this: there was a guy (Leslie Achilles "Les" Dane) who developed a sales book on closing techniques. L. Ron Hubbard liked it, bought some copies, and began teaching its techniques. For many years, Dane and the Scientologists had a good working relationship; Dane went to many Scientology offices and gave seminars. Dane died and a different company, run by a booted-out Scientologist (Peter Letterese), bought Dane's copyrights and sued the Scientologists.
The first issue to be discussed was whether a derivative work was created. Here the facts are unclear to me, but in one part of the opinion it is stated that the Scientologists "did not make copies of the book itself; students would either borrow or purchase the book for their study." The Scientologists did, though, produce their own course book, and may have appended some of Dane's material to it without copying that material. This seems to be what led the Eleventh Circuit to trash-talk the Ninth Circuit's Mirage Editions v. Albuquerque A.R.T. Co., 856 F.3d 1341 (9th Cir. 1988) opinion, which held that remounting an original copy was an infringing work. No way according to the Eleventh, siding with Judge Easterbrook's opinion in Lee v. A.R.T. Co., 125 F.3d 582 (77th Cir. 1997).
There are then 15 pages on whether the two course books were substantially similar. I can sum that up in one word, "no." Next up was fair use, 28 pages. There are a few interesting passages in that discussion. The first is the court of appeals' rejection of the district court's "fifth factor," which it called "the copyright owner's actual consent to the use of the copyrighted material." This factor was held by the court of appeals to be "incorrect, both in terms of logic and precedent." If someone has consented, then one need not rely on fair use, which is a privileged, unconsented to use. The rest of the fair use opinion is straightforward enough, but there is a discussion of out of print books worthy of reading. The court held that the fact that a book is out of print will tend to favor fair use (p. 46-47). But in this case, the plaintiff withheld the book in order to make a decision about when and how to re-release it; hence the book was not out-of-print in the usual sense, i.e., no immediate plans to republish it.
The final part of the opinion deals with whether laches is available for causes of action brought within the statute of limitations period. I have blogged about this before, and my view, siding with the Fourth Circuit's Lyons opinion, is no, it is not. The Eleventh Circuit couldn't bring itself to say "no, never," but did say a: "presumptive 'no;' there is a strong presumption that a plaintiff's suit is timely if it is filed before the statute of limitations has run. Only in the most extraordinary circumstances will laches recognize a defense." The court added,: "Even where such extraordinary circumstances exist, however, laches serves as a bar only to the recovery of retrospective damages, not to prospective relief."
Thursday, June 28, 2007
Karaoke and Fair Use
It is hardly news that bad arguments can lead to bad law. A recent example is the Sixth Circuit's opinion Tuesday in Zomba Enterprises, Inc. v. Panorama Records, Inc., 2007 WL 1814319 (6th Cir. June 26, 2007). There have been a few other cases involving the unlicensed use of music in karaoke CDs, see e.g. ABKCO Records, Inc. v. Stellar Records, Inc., 96 F.3d 60 (2d Cir. 1996)(Section 115 compulsory license not available), but in Zomba, defendant had the chutzpah to argue that its unlicensed creation and marketing of CD+Gs (CD plus graphics) constituted fair use. Not surprisingly the claim was rejected and a judgment of $806,000 for willful statutory damages awarded, along with $76,456 in attorney's fees.
What is regrettable is loose language in the court's proper rejection of the fair use argument, particularly in its discussion of the first factor, reproduced here almost in its entirety:
As an initial matter, Panorama's use of the compositions is only minimally, if at all, transformative. Although Panorama created its own recordings of these songs, Santos admitted that the hired musicians did not “change the words or music.” Unlike a parody, see Campbell, 510 U.S. at 579-80, a facsimile recording of a copyrighted composition adds nothing new to the original and accordingly has virtually no transformative value. Cf. Princeton Univ. Press, 99 F.3d at 1389 (“If you make verbatim copies of 95 pages of a 316-page book, you have not transformed the 95 pages very much.... This kind of mechanical ‘transformation’ bears little resemblance to the creative metamorphosis accomplished by the parodists in the Campbell case .”).
The crux of Panorama's fair-use argument is its assertion that its use was transformative because its karaoke packages are used for “teaching.” Notably, this focus is newly found. In the district court, Panorama's primary argument was that their karaoke packages “encourage creativity, and often commentary” among their end-users, and accordingly qualify as “transformative works.” Although Panorama offered a passing reference to karaoke's value as “an interactive and educational experience,” it never argued that the primary purpose of karaoke is “teaching,” and for good reason, as this argument is wholly meritless. Panorama's own description of karaoke further undermines its assertion regarding “teaching”: “Karaoke is primarily thought of as a form of entertainment that allows anyone to grab a microphone, hop on stage, and live out their [sic] fantasies of performing as famous music stars.” Moreover, the record is bereft of evidence indicating that Panorama's products are used for teaching at all (e.g., invoices showing sales to schools, advertisements aimed at educators, affidavits from teachers, etc.).
More importantly though, the end-user's utilization of the product is largely irrelevant; instead, the focus is on whether alleged infringer's use is transformative and/or commercial. In Princeton University Press, we considered a copyright suit against a college-town copy shop that copied portions of books and then sold these copies to students in “coursepacks.” 99 F.3d at 1383. We rejected the copy shop's fair-use defense, concluding that the defendant's copying was a commercial use, even though the students ultimately used the copies for educational purposes. Id. at 1389. To reach this conclusion, we emphasized that “the use of the materials by the students is not the use that the publishers are challenging.” Id. at 1386. Instead, the publishers were challenging “the duplication of copyrighted materials for sale by a for-profit corporation that has decided to maximize its profits ... by declining to pay the royalties requested by the holders of the copyrights.” Id.
Quite similarly, Zomba does not challenge karaoke crooners' renditions (atrocious or otherwise) of the relevant compositions, but rather Panorama's decision to copy these songs onto CD+Gs and then distribute them without paying royalties. Like the copying at issue in Princeton University Press, Panorama's manufacturing and selling the karaoke packages at issue “was performed on a profit-making basis by a commercial enterprise.” Id. at 1389. Accordingly, Panorama's use is commercial in nature, a fact militating against its fair-use defense.
Its the bolded sentence that bothers me: "More importantly though, the end-user's utilization of the product is largely irrelevant; instead, the focus is on whether alleged infringer's use is transformative and/or commercial." The sentence bothers me because Zomba did not make the end-user's conduct an issue so the court didn't need to reach it. Princeton University Press and other decisions, like Kinko's in the SDNY, paint with too broad a brush. It is reasonable that each defendant has to prove its own entitlement to fair use, but to argue that that entitlement has to be made in a vacuum is absurd: it divorces the purpose of the use from the first factor's "nature and purpose of the use." Fpr example, in the Cablevision RS-DVR case (478 F. Supp.2d 607 (S.D.N.Y 2007), currently on appeal), had Cablevision made a fair use argument for itself, would it have been "largely irrelevant" that Cablevision's letting consumers store time-shifted programming on Cablevision's servers rather than on a set-top box?
The signal failure of fair use decision making is the irresistible tendency of courts to announce and apply hard and fast rules to what is always an ad hoc determination, in the process destroying the very nature and purpose of the doctrine.
What is regrettable is loose language in the court's proper rejection of the fair use argument, particularly in its discussion of the first factor, reproduced here almost in its entirety:
As an initial matter, Panorama's use of the compositions is only minimally, if at all, transformative. Although Panorama created its own recordings of these songs, Santos admitted that the hired musicians did not “change the words or music.” Unlike a parody, see Campbell, 510 U.S. at 579-80, a facsimile recording of a copyrighted composition adds nothing new to the original and accordingly has virtually no transformative value. Cf. Princeton Univ. Press, 99 F.3d at 1389 (“If you make verbatim copies of 95 pages of a 316-page book, you have not transformed the 95 pages very much.... This kind of mechanical ‘transformation’ bears little resemblance to the creative metamorphosis accomplished by the parodists in the Campbell case .”).
The crux of Panorama's fair-use argument is its assertion that its use was transformative because its karaoke packages are used for “teaching.” Notably, this focus is newly found. In the district court, Panorama's primary argument was that their karaoke packages “encourage creativity, and often commentary” among their end-users, and accordingly qualify as “transformative works.” Although Panorama offered a passing reference to karaoke's value as “an interactive and educational experience,” it never argued that the primary purpose of karaoke is “teaching,” and for good reason, as this argument is wholly meritless. Panorama's own description of karaoke further undermines its assertion regarding “teaching”: “Karaoke is primarily thought of as a form of entertainment that allows anyone to grab a microphone, hop on stage, and live out their [sic] fantasies of performing as famous music stars.” Moreover, the record is bereft of evidence indicating that Panorama's products are used for teaching at all (e.g., invoices showing sales to schools, advertisements aimed at educators, affidavits from teachers, etc.).
More importantly though, the end-user's utilization of the product is largely irrelevant; instead, the focus is on whether alleged infringer's use is transformative and/or commercial. In Princeton University Press, we considered a copyright suit against a college-town copy shop that copied portions of books and then sold these copies to students in “coursepacks.” 99 F.3d at 1383. We rejected the copy shop's fair-use defense, concluding that the defendant's copying was a commercial use, even though the students ultimately used the copies for educational purposes. Id. at 1389. To reach this conclusion, we emphasized that “the use of the materials by the students is not the use that the publishers are challenging.” Id. at 1386. Instead, the publishers were challenging “the duplication of copyrighted materials for sale by a for-profit corporation that has decided to maximize its profits ... by declining to pay the royalties requested by the holders of the copyrights.” Id.
Quite similarly, Zomba does not challenge karaoke crooners' renditions (atrocious or otherwise) of the relevant compositions, but rather Panorama's decision to copy these songs onto CD+Gs and then distribute them without paying royalties. Like the copying at issue in Princeton University Press, Panorama's manufacturing and selling the karaoke packages at issue “was performed on a profit-making basis by a commercial enterprise.” Id. at 1389. Accordingly, Panorama's use is commercial in nature, a fact militating against its fair-use defense.
Its the bolded sentence that bothers me: "More importantly though, the end-user's utilization of the product is largely irrelevant; instead, the focus is on whether alleged infringer's use is transformative and/or commercial." The sentence bothers me because Zomba did not make the end-user's conduct an issue so the court didn't need to reach it. Princeton University Press and other decisions, like Kinko's in the SDNY, paint with too broad a brush. It is reasonable that each defendant has to prove its own entitlement to fair use, but to argue that that entitlement has to be made in a vacuum is absurd: it divorces the purpose of the use from the first factor's "nature and purpose of the use." Fpr example, in the Cablevision RS-DVR case (478 F. Supp.2d 607 (S.D.N.Y 2007), currently on appeal), had Cablevision made a fair use argument for itself, would it have been "largely irrelevant" that Cablevision's letting consumers store time-shifted programming on Cablevision's servers rather than on a set-top box?
The signal failure of fair use decision making is the irresistible tendency of courts to announce and apply hard and fast rules to what is always an ad hoc determination, in the process destroying the very nature and purpose of the doctrine.
Monday, June 25, 2007
The Winter Hill Gang and Fair Use
How new does news reporting have to be to be fair use? That’s a simplistic way of framing a complex set of facts and a perhaps disappointing outcome in Fitzgerald v. CBS Broadcasting, Inc., 2007 WL 1793551 (D. Mass. June 22, 2007). Readers are pointed to the opinion for the convoluted facts, but here, for fair use purposes, are the essentials.
The Winter Hill Gang in Boston is an infamous organization, described by Wikipedia this way:
The Winter Hill Gang is a loose confederation of Boston-area organized crime figures, mostly Irish-American and some Italian-American. It derives its name from the Winter Hill neighborhood of Somerville, Massachusetts north of Boston. Its members have included notorious Boston gangster James J. "Whitey" Bulger and hitman Stephen “The Rifleman” Flemmi.
The Winter Hill Gang in Boston is an infamous organization, described by Wikipedia this way:
The Winter Hill Gang is a loose confederation of Boston-area organized crime figures, mostly Irish-American and some Italian-American. It derives its name from the Winter Hill neighborhood of Somerville, Massachusetts north of Boston. Its members have included notorious Boston gangster James J. "Whitey" Bulger and hitman Stephen “The Rifleman” Flemmi.
The story of Whitey Bulger, is all the more fascinating due to his straight-arrow brother William, who was the president of the Massachusetts Senate and then the president of the University of Massachusetts until forced from that post by Governor Mitt Romney.
Plaintiff Christopher Fitzgerald is a freelance photographer who in 1995, took a photograph of The Rifleman being transferred from the Framingham State Police Barracks to an undisclosed location. His were the only photographs of the event. The photo was licensed numerous times, but CBS appears to have been snake-bit in its relationship to the photos and Fitzgerald, getting repeatedly sued and repeatedly breaching settlement agreements.
The most recent suit was triggered by the arrest of former Winter Hill gang member John Martorano, and his purported agreement to cooperate in the authorities’ investigation into Whitey Bulger and The Rifleman. (Flemmi and Bulger had earlier been FBI informants and are alleged to have committed vicious murders while informants). In connection with the arrest of Martorano, CBS dusted off Fitzgerald’s photos from its archives (which should have been purged of the images under a settlement agreement), cropped out the police from the shot, and showed the cropped photo of Flemmi on the evening news in conjunction with a story of the arrest. Fitzgerald sued; CBS alleged fair use news reporting, which the court rejected, granting plaintiff summary judgment on the issue (ouch!).
The court’s opinion is earnest, thoughtful, and detailed. It is also a fair-use-by-the numbers opinion, meaning it marches through the four factors and at the end announces a conclusion. This may reflect nothing more than the requirements of opinion writing, but alas, the opinion is all we have as insight into the court’s thinking.
On the first factor, plaintiff argued there could be no news reporting because there was no new news, The Rifleman having been arrested 9 years earlier, but as the court pointed out, the Martorano events were news. Nevertheless, the court found the use non-transformative:
CBS argues that it transformed the meaning of the photo by cropping out some of the evidence of the arrest-the state troopers-and embedding the cropped photo in a narrative about John Martorano. This is slicing things a bit thinly. In its news report, CBS highlighted the importance of Martorano's sentencing partly by explaining that Martorano's testimony had led to Flemmi's arrest; CBS used Fitzgerald's photograph of the arrest to enhance this point. The only “transformation” was that Flemmi's arrest was downgraded from breaking news to a supplementary part of a larger story. The distinction that CBS argues for here is so fine that it ceases to have meaning in the context of ordinary news practice.
The final passage refers to licensing, and while the court did not let industry practice dictate fair use (see footnote 2 in the opinion), CBS’s own checkered history with Fitzgerald must have played an important role. The court also found the use commercial in nature, weighed the second factor in CBS’s favor by describing the photos as factual works (a bit of a stretch), found the third factor to have minor importance, and after describing the fourth as the most important, weighed it in favor of plaintiff after noting CBS’s tortured past conduct.
In the end, the case may be nothing more than fact specific (i.e., CBS's snake-bit behavior; a jury is to determine whether it was willful), but the court’s discussion of transformative use solidifies for me the need to abandon that terminology before it swallows the whole of fair use: the discussion of cropping and whether it was transformative and therefore helpful in determining fair use, is the worst sort of mechanistic, formalist thinking: to me the issue should have been simply whether there was a valid new reporting purpose and use for the photo, and whether the settlement agreements, as a contractual matter, effectively barred reliance on fair use.
Plaintiff Christopher Fitzgerald is a freelance photographer who in 1995, took a photograph of The Rifleman being transferred from the Framingham State Police Barracks to an undisclosed location. His were the only photographs of the event. The photo was licensed numerous times, but CBS appears to have been snake-bit in its relationship to the photos and Fitzgerald, getting repeatedly sued and repeatedly breaching settlement agreements.
The most recent suit was triggered by the arrest of former Winter Hill gang member John Martorano, and his purported agreement to cooperate in the authorities’ investigation into Whitey Bulger and The Rifleman. (Flemmi and Bulger had earlier been FBI informants and are alleged to have committed vicious murders while informants). In connection with the arrest of Martorano, CBS dusted off Fitzgerald’s photos from its archives (which should have been purged of the images under a settlement agreement), cropped out the police from the shot, and showed the cropped photo of Flemmi on the evening news in conjunction with a story of the arrest. Fitzgerald sued; CBS alleged fair use news reporting, which the court rejected, granting plaintiff summary judgment on the issue (ouch!).
The court’s opinion is earnest, thoughtful, and detailed. It is also a fair-use-by-the numbers opinion, meaning it marches through the four factors and at the end announces a conclusion. This may reflect nothing more than the requirements of opinion writing, but alas, the opinion is all we have as insight into the court’s thinking.
On the first factor, plaintiff argued there could be no news reporting because there was no new news, The Rifleman having been arrested 9 years earlier, but as the court pointed out, the Martorano events were news. Nevertheless, the court found the use non-transformative:
CBS argues that it transformed the meaning of the photo by cropping out some of the evidence of the arrest-the state troopers-and embedding the cropped photo in a narrative about John Martorano. This is slicing things a bit thinly. In its news report, CBS highlighted the importance of Martorano's sentencing partly by explaining that Martorano's testimony had led to Flemmi's arrest; CBS used Fitzgerald's photograph of the arrest to enhance this point. The only “transformation” was that Flemmi's arrest was downgraded from breaking news to a supplementary part of a larger story. The distinction that CBS argues for here is so fine that it ceases to have meaning in the context of ordinary news practice.
The final passage refers to licensing, and while the court did not let industry practice dictate fair use (see footnote 2 in the opinion), CBS’s own checkered history with Fitzgerald must have played an important role. The court also found the use commercial in nature, weighed the second factor in CBS’s favor by describing the photos as factual works (a bit of a stretch), found the third factor to have minor importance, and after describing the fourth as the most important, weighed it in favor of plaintiff after noting CBS’s tortured past conduct.
In the end, the case may be nothing more than fact specific (i.e., CBS's snake-bit behavior; a jury is to determine whether it was willful), but the court’s discussion of transformative use solidifies for me the need to abandon that terminology before it swallows the whole of fair use: the discussion of cropping and whether it was transformative and therefore helpful in determining fair use, is the worst sort of mechanistic, formalist thinking: to me the issue should have been simply whether there was a valid new reporting purpose and use for the photo, and whether the settlement agreements, as a contractual matter, effectively barred reliance on fair use.
Monday, February 26, 2007
Fair Use, Israel, and the IIPA
The February 12, 2007 International Intellectual Property Alliance 2007 Special 301 Report contains detailed discussions of which countries throughout the world have been naughty and which have been nice (excluding of course the U.S. which is the nicest of all). One country's treatment bears pointing out, Israel. The Knesset is in the process of passing a number of amendments to its copyright law - an amalgam of laws going back to the extension, in 1924, of the British Copyright Act of 1911 during the British Mandate over ארץ ישראל (The most recent amendment took effect on November 3, 2002). Israel is a member of the Universal Copyright Convention and the Berne Convention. The current effort is intended both to modernize aspects of Israeli copyright law and to implement other international obligations.
What caught my eye in the discussion of Israel (found here) is on pages 70-71, entitled "Proposed Application of U.S.-Type 'Fair Use' Factors." This refers to the Knesset's expected adoption of a provision modeled very closely on Section 107 of title 17. One might expect that an effort by a foreign government to adopt a rather singular aspect of U.S. copyright law would be met with praise. Not so, when it comes to the non-proprietary side of the constitutional ledger. Here are the IIPA's words in full:
At the outset, we note that Section 19(a) attempts to adopt the U.S. 'fair use' test by stating that 'fair dealing with the creation is allowed, among others, for the following purposes: self study, research...." Section 19(b) includes a list of factors that are similar to those in place in the United States and the explanatory notes clarify the intention to enact a non-exclusive list of purposes, which would allow enough flexibility to the courts in determining whether a particular use is 'fair.' We understand there may already be agreement to adopt the draft, and we register our concern that the result of this change could result in considerable case law interpretation in Israel on 'fair dealing' being thrown out in favor of as yet undeveloped factors in Section 19(b). By contrast, in markets like the U.S., which employs very similar factors to those set out in proposed Section 19(b), many years of jurisprudence have provided society with considerable clarity on the boundaries of 'fair use.' There is a significant risk that in Israel the adoption of these factors at this time might be viewed by the community as a free ticket to copy. This would have disastrous consequences, and thus we urge the Israeli government to re-examine the introduction of these factors, rather than relying on Section 19(a), which sets out the long-established 'fair dealing' principle, followed by specific exceptions dealing with certain special cases (Section 19-32, but see comments below). Finally, if the factors in Section 18(b) are to be ultimately adopted, Section 19(b)(1) especially needs to be amended to properly narrow the scope of the 'fair use' inquiry:
(b) In order to examine the fairness of a use of the creation for the purposes of this paragraph, the following shall be considered:
(1) The aim of the use and its type, including whether the use is of a commercial nature or is for non-profit educational purposes.
These remarks should lead to debate in U.S. circles: the concern that Israeli judges can't handle the doctrine or that the Israeli population will see adoption of fair use as a "free ticket to copy" is not borne out by any empirical evidence, nor by any references justifying such concerns (e.g., prior decisions of Israeli courts), nor of course by the proposed statutory language, which directs judges to look at the traditional four factors, including the effect of the use on the market for the copyrighted work.
The IIPA's preferences are for (1) the existing law, which contains a narrower set of enumerated exceptions or (2) the above amendment, which is designed to "properly narrow the scope of the 'fair use' inquiry." That proposed amendment (the bold portion) would add language taken from Section 107(1): "including whether the use is of a commercial nature or is for non-profit educational purposes."
That language, added at the 11th hour to Section 107 of title 17 as a sop to educators led to years of confusion in U.S. courts, ultimately to the Sony presumptions ("every commercial use is presumptively unfair;" "every commercial use presumptively results in harm to the market"), and years and years of rigid, mis-directed case law, corrected ultimately in the 2 Live Crew case. Adopting that language in the Israeli statute would result in the adoption of the one part of Section 107 that has failed miserably, and might lead plaintiffs in Israel to argue things like "commercial use bad," but "non-profit educational use maybe good, under some circumstances." It is unclear how the IIPA sees its amendment working in practice, but how could reference to commercial versus non-profit educational uses narrow anything by itself unless commercial uses are painted as the bad guys? That approach, it must be noted is strongly contrary to existing U.S. law, pace Justice Souter's quote from Samuel Johnson that "No man but a blockhead ever wrote, except for money."
The unusual aspect of all this of course, is a U.S. trade organization lobbying the Office of United States Trade Representative to lobby a foreign government not to adopt a critical part of U.S. copyright law.
What caught my eye in the discussion of Israel (found here) is on pages 70-71, entitled "Proposed Application of U.S.-Type 'Fair Use' Factors." This refers to the Knesset's expected adoption of a provision modeled very closely on Section 107 of title 17. One might expect that an effort by a foreign government to adopt a rather singular aspect of U.S. copyright law would be met with praise. Not so, when it comes to the non-proprietary side of the constitutional ledger. Here are the IIPA's words in full:
At the outset, we note that Section 19(a) attempts to adopt the U.S. 'fair use' test by stating that 'fair dealing with the creation is allowed, among others, for the following purposes: self study, research...." Section 19(b) includes a list of factors that are similar to those in place in the United States and the explanatory notes clarify the intention to enact a non-exclusive list of purposes, which would allow enough flexibility to the courts in determining whether a particular use is 'fair.' We understand there may already be agreement to adopt the draft, and we register our concern that the result of this change could result in considerable case law interpretation in Israel on 'fair dealing' being thrown out in favor of as yet undeveloped factors in Section 19(b). By contrast, in markets like the U.S., which employs very similar factors to those set out in proposed Section 19(b), many years of jurisprudence have provided society with considerable clarity on the boundaries of 'fair use.' There is a significant risk that in Israel the adoption of these factors at this time might be viewed by the community as a free ticket to copy. This would have disastrous consequences, and thus we urge the Israeli government to re-examine the introduction of these factors, rather than relying on Section 19(a), which sets out the long-established 'fair dealing' principle, followed by specific exceptions dealing with certain special cases (Section 19-32, but see comments below). Finally, if the factors in Section 18(b) are to be ultimately adopted, Section 19(b)(1) especially needs to be amended to properly narrow the scope of the 'fair use' inquiry:
(b) In order to examine the fairness of a use of the creation for the purposes of this paragraph, the following shall be considered:
(1) The aim of the use and its type, including whether the use is of a commercial nature or is for non-profit educational purposes.
These remarks should lead to debate in U.S. circles: the concern that Israeli judges can't handle the doctrine or that the Israeli population will see adoption of fair use as a "free ticket to copy" is not borne out by any empirical evidence, nor by any references justifying such concerns (e.g., prior decisions of Israeli courts), nor of course by the proposed statutory language, which directs judges to look at the traditional four factors, including the effect of the use on the market for the copyrighted work.
The IIPA's preferences are for (1) the existing law, which contains a narrower set of enumerated exceptions or (2) the above amendment, which is designed to "properly narrow the scope of the 'fair use' inquiry." That proposed amendment (the bold portion) would add language taken from Section 107(1): "including whether the use is of a commercial nature or is for non-profit educational purposes."
That language, added at the 11th hour to Section 107 of title 17 as a sop to educators led to years of confusion in U.S. courts, ultimately to the Sony presumptions ("every commercial use is presumptively unfair;" "every commercial use presumptively results in harm to the market"), and years and years of rigid, mis-directed case law, corrected ultimately in the 2 Live Crew case. Adopting that language in the Israeli statute would result in the adoption of the one part of Section 107 that has failed miserably, and might lead plaintiffs in Israel to argue things like "commercial use bad," but "non-profit educational use maybe good, under some circumstances." It is unclear how the IIPA sees its amendment working in practice, but how could reference to commercial versus non-profit educational uses narrow anything by itself unless commercial uses are painted as the bad guys? That approach, it must be noted is strongly contrary to existing U.S. law, pace Justice Souter's quote from Samuel Johnson that "No man but a blockhead ever wrote, except for money."
The unusual aspect of all this of course, is a U.S. trade organization lobbying the Office of United States Trade Representative to lobby a foreign government not to adopt a critical part of U.S. copyright law.
Subscribe to:
Posts (Atom)
