Friday, June 02, 2006

An Instructive Fair Use Case

Sometimes cases out of the mainstream can distort basic issues, as Judge Leval believes Sony did in the fair use area. But other times, the off-beat can be helpful; that, I think is the situation with an April 18th opinion from the Southern District of Georgia, Gulfstream Aerospace Corp. v. Camp Systems International, Inc. Plaintiff is the manufacturer of the jet aircrafts beloved by those with real money, and envied by those who aspire to that status, or who simply bewail their fate stuck in coach on a flight from New York to Australia. As part of its FAA obligations, Gulfstream must write and distribute maintenance manuals for each of its aircraft models. Each owner of an aircraft must possess a copy, which Gulfstream licenses for $8,500 a year. Gulfstream also has an online tracking service so that customers are aware what needs to be serviced and when.

Defendant does not manufacture aircraft, but instead provides maintenance tracking services for them. Gulfstream refused to license a copy of its manual to Defendant. To get around this problem (and an FAA ban on defendant producing its own manual), Camp asked Gulfstream owners to borrow their copy of the manual, from which defendant then loaded parts onto its servers. Gulfstream could not lose any sales of the manual from defendant's activity because each aircraft owner was required to own a copy, which they could only get from Gulfstream. Defendant asserted fair use.

The court found the use was commercial and not transformative. The nature of the work was factual. The amount copied was in one respect the entirety, but in another - what was actually used - less than the whole since defendant only "extracted" (the court's quote marks) those parts it needed to perform the specific maintenance tasks. There was no market harm to the manuals, but Gulfstream claimed harm from loss of fees for a competing tracking service, and also implausibly claimed that defendant had created a derivative work. The court rejected both arguments and noted the FAA, despite prohibiting defendant from producing a manual, came out against Gulfstream's effort to restrict defendant's use.

The use in Gulfstream bears little resemblance to a traditional fair use case, and while the opinion contains a traditional analysis, in the end, the court viewed the effort as one of attempted monopolization of services through an assertion of copyright. In other words, Buddy your copyright doesn't reach that far.


Mike Madison said...

The court reaches a sensible result, and the implicit rationale ("your copyright doesn't reach that far") is surely right, but I wonder about the court's (and the defendant's) reliance on fair use. The problem, as I see it, is that if fair use becomes an all-purpose explanation for "no infringement," then fair use is even less meaningful than it is today.

How might the case be analyzed without fair use? First: In what but the most uncritically literal sense did the defendant infringe the copyright in the first place? It strikes me that the defendant was accused not of reproducing the manual but of "using" it without permission -- a situation that should fall outside section 106 in the first place. Second: I could imagine applying 102(b) or the doctrine of merger or Baker v. Selden (to the extent that merger and 102(b) don't exhaust Baker's applicability). There are probably other options.

To be fair to the plaintiff, I can appreciate the instinct that the defendant appropriated something of value in the course of building a competing business. But copyright may have been the wrong container for the claim. Because case involves aircraft, I have in mind Judge Kozinski's opinion in G.S. Rasmussen & Associates, Inc. v. Kalitta Flying Service, Inc.
958 F.2d 896 (9th Cir. 1992). That case has its problems, but it's worth noting that while defendants sometimes warp copyright law when they use fair use instead of other, better tools, copyright owners sometimes warp copyright (and hurt their own interests) by defaulting to statutory copyright law when state common law, and some shrewd "no preemption" arguments, would better suit their needs.
(Sorry to sound so law-professor-ish late on a Friday afternoon!)

William Patry said...

I thought of Kalitta too, one of Judge Alex's less successful opinions, I think. The thing that I like about the opinion is what bothers you and I appreciate why it does. And that is, what is fair use? What do we want it to be? I would be happy with the idea of defendant's acts not being infringement, as I think Google's book search copying is not a prima facie copying either. But if there is disagreement, as Gulfstream surely does and book publishers too, then fair use should perform a safety valve role. To paraphrase the great Jewish sage Hillel, "If not fair use, what, then?"

Anonymous said...

Insofar as the FAA requires owners of the plan to refer to a copyrighted manual, the case also reminds me of cases involving copyrights claimed on private works referred to in governmental laws or processes.

The governmental requirement that the copyrighted manual be used necessitates infringment in the service market; the significance of this order should therefore be considered in judging fair use.

Anonymous said...

Nice try with Copyright .. but maybe the Gulfstream's lawyer should have argued a misappropriation of proprietary information - a state Law cause of action under the Uniform Trade Secrets Act. . . Did Camp explain why they bypassed Gulfstream's proprietary legends that are all over these kinds of documents ? OR, Maybe Gulfstream has not marked these documents ? - In this case - nice try !