Fair Use Week 2020: Day Five With Guest Expert Kathleen DeLaurenti

Hacking Fair Use: Making Music Accessible

by Kathleen DeLaurenti

(Photos by Ben Johnson)

When you put music, technology, and one sleepless night in a blender, how do you end up with fair use? This year, some students at Johns Hopkins helped us figure that out!

A new annual tradition at the Peabody Institute, PeabodyHacks invites students to spend 24 hours experimenting and developing projects at the cross section of music and technology. We encourage novice attendees, try to foster collaborations between engineering and music students, and focus more on process and experimentation than sophisticated final projects. The event also allows students to meet guest artists like Laetitia Sonami and Suzanne Kite, whose work challenges ideas of being, femininity, relationships with artificial intelligence, and embodiment of digital sound and physical bodies.

The second Peabody Institute annual hackathon brought to life a slew of interesting projects in January 2020 focusing on music and accessibility. Students created electronic instruments for beginners, developed games to help students with beat-deafness (it’s a thing!), and, to my delight, made music more accessible with fair use!

Ankur Kejriwal, Dylan Lewis, and Winston Wu are students who, during their day jobs, study engineering and computer science. As serious amateur musicians, they wanted to develop a project that made music more accessible for musicians who were still developing their chops and might find sitting down at the keyboard to play their favorite music intimidating. Semplice, their music simplification engine, allows anyone to take their favorite piece of music and make it easier to play without losing what they love about the piece.

The premise behind Semplice is, well, simple: a user uploads their copy of their favorite piano piece that is too hard to play, and chooses how to make it easier. They can eliminate all 16th notes so that they don’t need to play as fast, simplify the left hand, or turn the left hand playing all into chord blocks. While simplifying the left hand makes it easier to play, it also allows for harmonic analysis of piano music, which can be beneficial for music theory students or anyone who might want to learn more about arranging and improvising.

Once you’ve selected how much easier to make the piece, then the magic happens! After quickly processing it through an OMR engine (optical music recognition), users get the new version of the piece to download and perform for their own study and personal use. Or, as I like to think of it, musical fair use magic!

When I reached out to the team after their 2nd place finish in the hacking competition, they were surprised that fair use had anything at all to do with their work. They had some experience with music copyright as music lovers: Winston Wu shared that he often buys transcriptions of his favorite symphonic works to play on piano, his main instrument. But when they were developing Semplice, they hadn’t spent a lot of time thinking about copyright.

The simplicity of the project is also what makes it such a wonderful example of fair use: users upload copies of music that they already own and only the uploader gets the simplified, derivative version. Speaking with Ankur Kerjiwal, he notes that even the processing logs don’t tell you anything about what pieces were uploaded and processed. You can see what someone named their file, but no user info is collected during the process, so the metadata in the logs doesn’t tell much of a story at all. The team is currently considering how to make the engine available, but they envision it as a free, light weight tool that solves a specific problem without copying, distributing, or making additional copies of the music available.

In conversations with Ankur, even though the team wasn’t thinking about fair use this time, copyright and fair use often create a “road bump” in his work. He relies on large datasets for testing his software projects and, as a PhD student, he needs to be able to publish that data openly to have his work peer-reviewed. While some of us who frequently work on copyright might think that the Google Books case settled the issue of computational data, it’s complicated, especially with music and websites who have restrictive terms.

I asked Ankur about his experience using the widely available musiXmatch dataset that is part of the Million Songs Dataset project. Because of copyright and other restrictions, less than one third of the million songs data lyrics are included. Also, to side-step concerns about the dataset, the research team has released the set as bag-of-words data, meaning that you don’t get the collected lyrics for each title, just counts of words across the dataset. I asked Ankur if this limited the utility of the dataset. He said, “Absolutely – you would be able to do much more if the set included full lyrics in the order they appeared in a track.”

Music continues to bring us its share of fair use challenges, but it’s exciting to see young engineers wading into the fair use waters. Uncovering unwitting fair uses in our campus community has proven a great way to educate faculty, students, and colleagues about how to flex their fair use muscle. With resources like our copyright consultation service at the Peabody Institute of the Johns Hopkins University, I hope that we can continue to work with students to help them take advantage of their fair use rights so that they can make music, accessibility, and magic happen.

Kathleen DeLaurenti is the Head Librarian at the Arthur Friedheim Library at the Peabody Institute of the Johns Hopkins University. Her work includes publishing projects for music, teaching music-focused copyright, and advocating for both fair use and the public domain. She has been active in the Music Library Association (MLA) Legislation Committee as a member since 2009 where she has also served as chair of the Best Practices for Fair Use in Music Collections task force. She has also been a member of the Copyright Education sub-committee of the American Library Association (ALA) and is the 2015 winner of the ALA Robert Oakley Memorial Scholarship for copyright research.

Fair Use Week 2020: Day Four With Guest Expert David Hansen

Fair Use: Copyright’s Deus Ex Machina?

by David Hansen

On the surface it sometimes feels like copyright law is incoherent. On the one hand, we read about how the character of copyright is aimed at benefiting society; enriching public discourse; and promoting the progress of science and the useful arts. But then, we read elsewhere about copyright as a primarily economic tool, calculated to achieve maximum incentives for economic return to owners.

Athena Pallas (Minerva) and the Centaur, by Sandro Botticelli c.1482. (No need to use fair use for this image since it is in the public domain!)

When we have what seems like an irresolvable conflict between these two characters, fair use somehow always seems to make an appearance. Like the story of those Greek dramas in which gods descend onto the stage via machine (deus ex machina) to resolve seeming plot holes, fair use can sometimes seem to swoop in and handily resolve all issues.

Except it doesn’t, or at least it shouldn’t. Fair use is not some external entity acting on the copyright system at whim, like Zeus interfering in mortal disputes. But in day to day use, I experience the allure to treat fair use this way when working with people new to copyright who are seeking answers to basic questions such as “Can I reuse this figure in my article?” or “How much of this book can I scan for my students to read online?” After some preliminary introduction to what fair use does, I find those users have the strong tendency to fall in love with the power of doctrine. Why address other complex questions (“Is the work copyrightable to begin with?” “Is what you want to do even implicating any of the owner’s exclusive rights?”), when, like a magical incantation, it seems you can just say words like “transformative” and “educational” and, presto chango, everything is OK!

While fair use is powerful, it isn’t magic. What it is, is an integral part of the Copyright Act. As the statute states, fair use is a “right” too, and exercising it is “not an infringement of copyright.” It also requires rigorous analysis. Mindlessly incanting words such as “transformative” won’t do. There is now helpful empirical evidence that fair use applied by the courts is not arbitrary, but has a robust and coherent framework of analysis for ensuring that copyright doesn’t “stifle the very creativity which the law is designed to foster.” Whole codes of best practices from a variety of communities of practice—documentary filmmakers, librarians, and many others—have been developed to put into practice lessons from those cases, providing yet more certainty and coherence to the doctrine for users in day-to-day application.

Beyond misapplication, I think a much more serious concern is in the pressure to look to fair use as a way to avoid other hard questions about other areas of copyright law. If we look to fair use to solve all our copyright questions, that pressure could start to water down and ultimately threaten the coherence of the doctrine. Two recent cases in particular raise some concerns about whether core questions about the scope of copyright protection are being punted into an unnecessary fair use analysis.

ASTM v. Public.Resource.org is one such case, at its core about whether standards (e.g., material safety standards) incorporated by reference into federal law are protected by copyright or are unprotectable as “edicts of government.” The district court in that case concluded that such standards as incorporated into the law are protectable (a decision I think was wrong).On appeal, the D.C. Circuit Court of Appeals reversed but instructed that the best way forward would be to avoid the subject matter question and instead analyze first the use primarily through the lens of fair use.

Oracle v. Google raises some similar issues. This is a case currently before the U.S. Supreme Court, primarily to answer the question of whether application program interfaces (APIs) are copyrightable. Google’s position is that they are not protectable and there is no infringement, at least in how Google has used them on the facts in that case, while Oracle says that they are. As a backup argument, Google argues that even if protectable, its use is fair use.  Google has a good, though a bit awkward fair use argument, explained well both in its brief and in supporting briefs from amici . Like the ASTM case, this case raises much more important questions about the scope of protection. Currently before the Supreme Court, my hope is that the Court does not dodge those important questions even if fair use gives them the option.

So is fair use copyright’s a deus ex machina? No, I think not, but we are sometimes tempted to ask it to be. We have a lot to lose if we do that. In any individual case, it probably doesn’t matter much, but over time and across many situations, we risk watering down the currently robust, predictable doctrine. I’m not saying that we should avoid fair use at all costs, but it’s important to remember that fair use is just one part (an important part) of the copyright system, and we shouldn’t lean on it to resolve all of our issues.

Notes and resources you may want to check out:

Some of my thinking on this subject is influenced by a fantastic article, now 15 years old, written by Matthew Sag titled “God in the Machine: A New Structural Analysis of Copyright’s Fair Use Doctrine.”

The research I mentioned above on the stability and coherence of fair use is rich. Some articles worth checking out are:

Finally, the fair use best practices are available at https://cmsimpact.org/codes-of-best-practices/.

David Hansen is the Associate University Librarian for Research, Collections & Scholarly Communications at Duke University Libraries. Before coming to Duke he was a Clinical Assistant Professor and Faculty Research Librarian at UNC School of Law. And before that, he was a fellow at UC Berkeley Law in its Digital Library Copyright Project.

Fair Use Week 2020: Day Three With Guest Expert Carla Myers

Fair Use and Video Streaming

By Carla Myers

The use of video as a part of course instruction is certainly nothing new. However, I would argue that the ways in which instructors and students desire to engage with video has changed substantially over the years. Twenty years ago, when I was an undergraduate student, if a video was used as part of course instruction, we watched it one of two ways: 1) the instructor set aside time during a class for us to view the film, or 2) we borrowed the library’s copy that had been placed on reserve and watched it in preparation for class discussion. Legally speaking, these two options for watching the film did not raise any significant issues. The performance of the film in class was covered under the face-to-face teaching exception found in Section 110(1) of U.S. copyright law and the circulation of a copy via the library’s print reserve service was covered under the first sale doctrine found in Section 109. I gave little thought to these laws and methods of delivery when I was a student.

How times have changed. Now, as a copyright professional, helping instructors and students lawfully access video is something that I give a lot of time, thought, and analysis. In fact, for much of the past decade, I have worked in this field overseeing library reserve services. And in that time, while the options available under Sections 110(1) and 109 are still available to the students and instructors, most patrons now prefer to engage with video in a streaming format, and the legal exceptions available for filling these requests are not as clear.

When it comes to film streaming, libraries and educational institutions can consider the Technology, Education and Copyright Harmonization (TEACH) Act, found in Section 110(2) of U.S. copyright law and the fair use exception found in Section 107.

The TEACH Act was passed in 2002 in an effort to address the challenges being presented as online education began to emerge as one of the primary ways of delivering content to students. The intent was to be able to replicate, online, the same rights that an instructor or student might have in the classroom under Section 110. If you can meet all of the points of compliance required by the law, the TEACH Act it does provide options for streaming video online for course instruction. The problem libraries and educational institutions have with the TEACH Act is that it requires a tremendous amount of collaboration and effort from individuals and departments across campus to ensure that the 15+ requirements found in the statute are consistently being met for each film that instructors stream to their students. The TEACH Act also places a variety of limits on how works can be used and the period of time they can be made available to students. As such, many libraries and educational institutions interested in streaming film are looking to a much more flexible standard, fair use When making fair use determinations, we look to the fair use statute in Section 107. This statute states that “[n]otwithstanding” the copyright in the materials “the fair use of a copyrighted work…for purposes such as criticism, comment, news reporting, teaching, scholarship, or research” is not an infringement of copyright, subject to the four factors outlined in Section 107:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Let’s review how these factors interplay with the streaming use case.

Factor 1: Purpose

When it comes to streaming video, the first factor, the purpose of the use, will almost always weigh in the library’s favor when the film is being made available for educational purposes that support the teaching and learning mission of the institution. Here, the more transformative the use is the better. In his article, Towards a Fair Use Standard[1] Justice Pierre Leval tells us that a transformative use is one that “employ[s] the quoted matter in a different manner or for a different purpose from the original” and that “adds value to the original” through the “creation of new information, new aesthetics, new insights and understandings” (p. 1111). Film can definitely be used in a transformative way! For example, World War Z is a summer blockbuster that follows a man and woman as they try to determine what has caused the zombification of much of the world. This movie could be appreciated as a form of entertainment by anyone, but what if the film was used by an instructor teaching a class called “Introduction to Emergency Management?” What if the instructor asked her students to watch the film and, based upon what they learned in the class, provide criticism and commentary on the response of first responders, the government, and the military to a zombie/health crisis? This brings the viewing of the film into an entirely different context – scholarly -and students will apply new insights and provide greater understanding to the film, adding value to their educational experience in the course.

Factor 2: Nature

The second factor, that looks at the nature of the work being used, will more likely support streaming of factual-based films, such as documentaries. However, this does not mean that popular films cannot be streamed if they are being used as part of course instruction (see the example above), especially since popular films and other creative media are often utilized under a fair use standard.

Factor 3: Amount

The third factor asks us to consider the amount of the original work that is being used. This can be one of the trickier factors to evaluate, but mainly because so many misconceptions surrounding this factor exist.

For example, many people have heard that you can use up to 10% of a work or, in the case of film, up to three minutes, and that will qualify as fair use. Under the law, the fair use statute places no such limits on the amount of a work that can be used, nor does it abide by any arbitrary limits. There is definitely no magic number or timed amount that will provide an institution with any type of safe harbor to shield them from claims of infringement. If we take a look at the judicial history of fair use, we will find numerous cases where the courts have found that the reuse of 100% of a work to be fair, and others where the reuse of small portions of a work have been found to be infringing.

Frequently instructors will want to provide students with access to an entire film, and that may be supported under the third factor if the entire work is important to achieving the educational objectives of the course. Judge Leval tells us that when considering the third factor, “an important inquiry is whether the selection and quantity of the material taken are reasonable in relation to the purported justification” (1990, 1124). For example, say an instructor is teaching a computer generated imagery (CGI) course and wishes students to view the film The Lord of the Rings: The Fellowship of the Ring directed by Peter Jackson (2001) to show what groundbreaking use of CGI looks like in film. While the film contains many scenes that are rendered almost completely in CGI (the actor playing Gollum included!), there are also many scenes in the film that contain no CGI. For this course, the instructor could likely tailor the course to student-viewable clips from the films featuring CGI focused scenes. However, if an instructor was teaching a class called “Tolkien in Theater, Radio, and Film” that explored how Tolkien’s works have been retold in these media formats, it may be appropriate for students to have access to the entire film so they can compare Peter Jackson’s expression of the story against other versions.

Factor 4: Market

Over the past decade, the fourth factor of fair use has become more complicated to address when looking to stream film as part of course instruction. This is because of the expansion of the commercial streaming market that includes library vendor services (e.g., Hoopla and Kanopy) as well as general vendors such as Amazon, Hulu, iTunes, Vudu, and Netflix. These services offer the public access to streaming film through rental, licensing (read the terms with these vendors…rarely do we purchase digital files from them anymore), or subscription models.

When a film an instructor is interested in making a work available to students in its entirety, and the work is available through one of these vendors, we must take the streaming licensing options into consideration when evaluating the potential market effect of the use. As with all fair use determinations, the existence of a license for rental or “purchase” of a work does not mean that fair use can’t be used. But it does mean we have to work through our decision-making process on this factor more carefully. The argument for fair use can be strengthened when a film is not commercially available in a streaming format or when an instructor only requests clips – because, in these examples, there may be limited market harm.

Enter the Code of Best Practices in Fair Use for Academic and Research Libraries (2012) put forward by the Association of Research Libraries, the Center for Social Media at American University, and the Program on Information Justice and Intellectual Property at the Washington College of Law, American University. This Code, part of the family of fair use best practices codes,[2] can help librarians and educators is addressing these considerations and making thoughtful determinations of fair use.

The Code tells us that a fair use argument can be made for making “appropriately tailored course-related content available to enrolled students via digital networks” (p. 14). Here, it’s important to remember that fair use determinations must be made on a case-by-case basis. This statement in the Code does not mean that making any course-related content available to students online is a fair use, each title must be evaluated for fair use based upon the facts specific to its use in the course and its market availability. The Code does provide us with some enhancements that can aid in the making of these decisions. They include:

  • An argument for fair use can be strengthened when the film is being used in a transformative context and the amount being used is appropriate to the instructor’s pedagogical goals (p. 15).
  • Fair use arguments are reviewed on a regular basis to help ensure the works being used and the amount of the film being made available remains relevant and appropriate for course instruction (p. 15).

The Code also provides some additional factors to consider in these situations:

  • “The availability of materials should be coextensive with the duration of the course or other time-limited use (e.g., a research project) for which they have been made available at an instructor’s direction.
  • Only eligible students and other qualified persons (e.g., professors’ graduate assistants) should have access to materials.
  • Materials should be made available only when, and only to the extent that, there is a clear articulable nexus between the instructor’s pedagogical purpose and the kind and amount of content involved.
  • Libraries should provide instructors with useful information about the nature and the scope of fair use, in order to help them make informed requests.
  • When appropriate, the number of students with simultaneous access to online materials may be limited.
  • Students should also be given information about their rights and responsibilities regarding their own use of course materials.
  • Full attribution, in a form satisfactory to scholars in the field, should be provided for each work included or excerpted” (p. 14).

Those familiar with the TEACH Act will see some of its requirements echoed in these recommendations! While fair use and the TEACH Act are two separate statutes, it is not unreasonable to consider how some of TEACH’s requirements, like limiting access to online educational resources to those enrolled in the course and providing information on copyright law to instructors and students, can help support the application of fair use in these situations. When it comes to streaming film, there are also considerations under the Digital Millennium Copyright Act (often referred to as the DMCA) of which we must be aware. This goes a bit beyond the scope of this blog post, but there are good blog posts on this out there that explore these considerations, and it is a topic that has been addressed repeatedly as part of the triennial rulemaking process administered by the Librarian of Congress.

While licensing access to film for instructional use is an option for libraries and educational institutions to consider, we should be careful not to view it as the only option available to us. We can’t forget our mission as libraries and educators to provide access to quality resources that enhance students educational experience. Congress recognized the importance of the work we do when including exceptions like fair use in the law. Fair use arguments can be made for providing students with access to streaming film. As in the case with all fair use determinations, they just need to be made thoughtfully, and demonstrate a balancing of the four factors in a way that reflects both the rights of users and those of rightsholders.

Carla Myers is Assistant Professor and Coordinator of Scholarly Communications for the Miami University Libraries. Her professional presentations and publications focus on fair use, copyright in the classroom, and library copyright issues. She has a B.S. in Psychology from the University of Akron and a Masters in Library and Information Science from Kent State University. Her new book, Copyright and Course Reserves: Legal Issues and Best Practices for Academic Libraries, published by Libraries Unlimited (978-1-4408-6203-8) is available for pre-order now, to be released in the Fall.

[1] Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990)

[2] Some others are the Society for Cinema and Media Studies’ Statement of Best Practices in Fair Use in Teaching for Film and Media Educators and the Code of Best Practices in Fair Use for Media Literacy Education.

Fair Use Week 2020: Day Two With Guest Expert Brandon Butler

The Feist-y Reason That Text and Data Mining is Fair Use

by Brandon Butler

Happy Fair Use Week! This is a happy week, indeed, for me, because fair use is my favorite copyright doctrine. But my favorite copyright decision just may be Feist v. Rural Telephone Co., a case about…telephone books!

Among the many wonderful qualities of the Feist opinion is the bright neon line that it draws between the purpose of copyright (to give incentives for the creation and distribution of creative, expressive works) and what way, way, WAY too many people think is copyright’s purpose: to ensure that someone who works hard to make something gets paid every time someone else uses it. If you understand why Feist draws that line, you’ll understand why text and data mining is clearly a fair use. (See, I got there! Now hang in a little longer and I’ll get back to fair use in a minute…)

The idea that whoever makes something should control it, or get paid whenever it gets used, is sometimes called “labor-desert theory,” and it sounds pretty tempting. There’s even an Enlightenment philosopher that people invoke to support it: John Locke, who is said to have argued that when someone takes something from “the commons” and mixes it with their labor, the result is a delicious property gumbo, and it is theirs.

It’s been a minute since I last read Locke, so I can’t promise that’s the most faithful representation of his thinking. But I can tell you it is a pretty faithful representation of the arguments that some copyright holders and property rights enthusiasts make in favor of long, strong copyright. They talk about how hard it is to make a movie, how much time and energy must be devoted to various forms of creative work, how many jobs are required to make the creative economy hum, and so on.

That may all be true, but the fact (ha!) is that how hard you work to make something is irrelevant to the question of whether copyright protects it. Why? Well, it is an axiom of US copyright law that the author’s monopoly protects her expressive contributions to a work, but does not protect any facts (or ideas) that might be embedded in the work.

For example, where two authors write about the same underlying historical event, the first author may prevent the second author from copying too much of her expressive prose (these were the facts of the pioneering fair use decision Folsom v. Marsh, in which verbatim copying from an exhaustive biography of George Washington to create a second, shorter biography was found to be infringing), but she certainly can’t prevent the second author from relying on facts uncovered in her research (as, for example, in Miller v. Universal, where an author’s “research” on a famous kidnapping case was held not to be the proper subject of copyright protection as against a second author). Facts are not created by anyone (pace post-modernism etc.), and are no one’s property, according to copyright law. And, crucially, wrapping facts in a crunchy, flaky layer of your copyrighted expression is not enough to give you rights in the underlying facts.

Despite the bedrock status of this proposition, and its seemingly clear embodiment in the statute at § 102(b) of the Copyright Act, courts had trouble resisting the impulse to reward “sweat of the brow” or “industrious collection” by granting copyright protection to facts first revealed in a work of authorship. It wasn’t until the 1991 resolution of a dispute over the wholesale copying of names and numbers in telephone directories in Feist that the Supreme Court gave us a strong, clear articulation of both the principle and its deep Constitutional foundations:

The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. [citations omitted] Thus, if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them.


It may seem unfair that much of the fruit of the compiler’s labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not “some unforeseen byproduct of a statutory scheme.” Harper & Row, 471 U. S., at 589 (dissenting opinion). It is, rather, “the essence of copyright,” ibid., and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but “[t]o promote the Progress of Science and useful Arts.” Art. I, § 8, cl. 8. Accord, Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975)To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. Harper & Row, supra, at 556-557. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. …This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art. (Emphases added.)

The Supreme Court subsequently called this distinction (also known as the “idea/expression dichotomy”) part of the “traditional contours of copyright” and a “built-in First Amendment safety valve.” This is, in other words, about as fundamental a proposition as there can be in copyright law, grounded in both the Copyright Clause and the First Amendment of the Constitution. To the extent that fact and expression in a protected work can be separated, the facts are free for the taking. Whether it’s a phonebook or a newspaper article, expression is protected, but facts are free.

But, it turns out that one of the most powerful ways to extract and use all the facts embedded in a wide variety of creative works, to separate them from the expression in which they subsist, is to use text and data mining. But in order to perform text and data mining, a computer has to do things that ordinarily require the permission of the copyright holder, namely, copying the full text of the works into a computer, and in many cases displaying to the public contextual snippets that substantiate your claims. All this takes place thanks to technology that the Founders certainly couldn’t have foreseen, and that even the drafters of the 1976 Copyright Act might not have anticipated. Enter fair use, with the flexibility required to adapt to a changing world.

While there was already plenty of smart writing on the issue, and a long line of cases pointing in the right direction, the question of whether using computers to read in-copyright texts and extract facts from them got its fullest, and perhaps final, answer when Judge Pierre Leval decided the Google Books case. Google Books was the result of a massive digitization effort in which university libraries (including ours) provided millions of books to Google to digitize and crawl, just like they crawl websites, to help people find books. (Libraries got to keep the digital copies, which we deposited with the HathiTrust Digital Library.) Leval more or less created the modern fair use doctrine in a law review article first published 30 years ago, so it was fitting that he was the judge to finally give a broad blessing to text and data mining. In his opinion, Judge Leval answers two fundamental questions:

  1. Is Google’s purpose transformative, i.e., is it different from the author’s original expressive purpose and does it “serve[] copyright’s goal of enriching public knowledge” by using the protected material to “communicate[] something new and different from the original or expand[] its utility.” And,
  2. Does Google’s use provide the public with a “substitute” in the market for the original works in a way that does “meaningful” “significant” harm to the market for the work?

The ethos of Feist informs these two questions in a fundamental way. First, Judge Leval finds Google’s purpose to be transformative because of its fundamentally factual, informative character. The core purposes of Google Book Search—to locate relevant books by providing facts about the occurrence of search terms inside of books, and to reveal facts about the occurrence of words and phrases throughout the entire corpus of books—are of course radically different from the expressive purpose(s) of any particular book. And, not only is that purpose different, but it is consonant with the design of copyright itself, which is tailored to facilitate the free circulation of facts. It also serves the ultimate purpose of copyright, which is to “promote the Progress of Science” (where “Science” means all manner of learning and culture). Google Books is transformative because it is Feist-y – it liberates facts from expression in a way that adds to the world’s knowledge and doesn’t implicate the expressive monopoly of authors.

Which brings us to the question of market harm and substitution, which is also filtered through a Feist-ian lens. In addition to the obvious point that Google Book Search results are not a substitute for access to the underlying books (snippets are too small, and they are impossible to reassemble into the original work), which is certainly of fundamental importance, the court must contend with two other market-based challenges.

First, the Authors Guild argued that some users will find the information they need in snippets, which will forestall sales of the relevant works (either directly to researchers, or to libraries that serve them). The court’s response here is fundamentally Feist-ian: so what? That is, to the extent that the snippet reveals a fact that obviates a researcher’s need to buy a copy of the book containing that fact, that is all to the good.

Leval observes, by way of example, that a student looking for the year Franklin D. Roosevelt was first stricken by polio can find it in a snippet from Richard Thayer Goldberg’s The Making of Franklin D. Roosevelt (1981) that is returned from a Google Book Search query. The student will not have to buy Goldberg’s book, or even check it out from a library, to find this fact. And that’s fine; this is not a “harm” that copyright cares about. Judge Leval writes:

[The author’s] copyright does not extend to the facts communicated by his book. It protects only the author’s manner of expression.… Google would be entitled, without infringement of [the author’s] copyright, to answer the student’s query about the year Roosevelt was afflicted, taking the information from Goldberg’s book.The fact that, in the case of the student’s snippet search, the information came embedded in three lines of Goldberg’s writing, which were superfluous to the searcher’s needs, would not change the taking of an unprotected fact into a copyright infringement.

Or, as Justice O’Connor says in Feist, “This result is neither unfair nor unfortunate.”

The Authors Guild also argued that Google’s scanning harms a “derivative” market, namely the market for creating search databases and displaying snippets. At first glance, this may be the Guild’s most compelling argument. Maybe Google Book Search users never see the entire work, but of course Google itself necessarily does copy the full text, so the status of Google’s use behind the curtain could be less clear.

Judge Leval doesn’t think so. To the contrary, he says “There is no merit to this argument.” Why? Because

“The copyright resulting from the Plaintiffs’ authorship of their works does not include an exclusive right to furnish the kind of information about the works that Google’s programs provide to the public. For substantially the same reasons, the copyright that protects Plaintiffs’ works does not include an exclusive derivative right to supply such information through query of a digitized copy.”

Judge Leval goes on to argue that the right to create derivative works is limited to works that “re-present the protected aspects of the original work, i.e., its expressive content, converted into an altered form.” As has already been established, the Google Book Search project does no such thing. Indeed, Judge Leval distinguishes Google Book Search from other projects that have sought permission to display shorter portions of books or songs (as in ringtones) by observing that,

Unlike the reading experience that the Google Partners program or the Amazon Search Inside the Book program provides [or the listening experience that Ringtones provide], the snippet function does not provide searchers with any meaningful experience of the expressive content of the book. (emphasis added)

So, the fact/expression dichotomy, defended most memorably in Feist, does a lot of work in the Google Books opinion. And that is a good thing, because it grounds the right to text and data mine in fundamental copyright and Constitutional principles with roots as deep and broad as the fair use doctrine itself.

Brandon Butler is Director of Information Policy at University of Virginia.  There he works on implementing programs to guide the University Library on issues of intellectual property, copyright, and rights management for scholarly materials. He was a Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law from 2013 to 2016. Before that, Brandon was Director of Public Policy Initiatives at ARL from 2009 to 2013.

Fair Use Week 2020: Day One With Guest Expert Kenneth D. Crews

Presidents, Politics, and Fair Use

by Kenneth D. Crews

It’s February in an election year, and that can only mean that fair use is everywhere.  It is on the television, in the political rallies, and in the leaks and machinations of governmental grinding.  We might often think of fair use as the basis for quotations in books, classroom materials for students, and innovative art and music built on generations of creativity that came before.  But fair use is an inherently political creature.

Fair use originated in United States court cases from nineteenth century, and it was enacted by Congress as Section 107 of the Copyright Act of 1976.  Getting anything through Congress is of course a political challenge, and every bit of the 1976 law was a belabored exercise that required almost two decades of hearing and compromises before Congress was ready to make the political decision affirming fair use into American copyright law.

Fair use is also political because it represents a policy choice by lawmakers in courts and Congress to allow limited uses of other people’s copyrighted works, taking into consideration variables of fairness, now known as the four factors of fair use.  Congress at the same time made the political decision to empower individuals to engage in fair use – to determine what is good and proper as the law directly affects the copyright owners and users – and to evaluate how uses might affect broader public interests and promote the mission of copyright to encourage creativity.

The politics of fair use also has a much more earthy manifestation.  As the campaign season becomes more heated, fair use becomes more prevalent.  Some uses are surely accomplished by license while other works may not be protectable under copyright at all.

Consider the campaign ad that includes a clip of a presidential candidate speaking pointedly on a CNN program.  Depending on the candidate’s exact statements and your point of view, you might want to use that clip in a short TV spot to support or attack this candidate. It matters not whether the speaker is Biden, Buttigieg, Bloomberg, Klobuchar, Sanders, Trump, Warren, or any other election prospect.

Imagine you are the campaign manager for a candidate trying to launch your latest ads, and those several seconds from CNN are perfect.  You could get permission, but unless you have a prior arrangement to expedite the process, permission can be fatal.  It might never come; it might be burdened with conditions; it might have a hefty fee.  Permission can stall the moment, and you are going to miss your constant rolling deadline.

Further, suppose you still want permission; you have to wonder, “Who can grant this permission?” The candidate is speaking her own words; the candidate likely owns the copyright in those words.  The CNN crew members are choosing camera angles and developing the layout and imagery on the screen; CNN surely holds those copyrights.  Other copyrights might creep into the clip, including quotations, signs, and background music.  Theoretically, multiple permissions might be needed for just the momentary passage.

Fair use fills the voids and paves over the uncertainties.  Based on the four factors, this campaign use of the clip is highly likely to be within fair use.  The election purpose advances the social policy of copyright; the work is fact-based news of great public interest; the amount is minuscule; and the use may well promote CNN and not harm it.

Realistically, this kind of use is also a classic calculated risk.  The campaign is in full tilt.  The election is on Tuesday.  The polling is grim.  You’re are holding a prime-time ad slot on the networks tonight.  You have to get this great commercial shot, cut, and launched.  The risk calculation is more than just wishing for the best or hoping no one notices.  The risk is in large part your own determination that a judge will agree that you are within fair use.

Realistically, these things rarely if ever go to court.  In Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014), the court ruled that the makers of t-shirts criticizing the mayor of Madison, Wisconsin acted within fair use when they made transformative use of a photograph of the mayor.  Perhaps most important, the use encompassed only a portion of the photograph for a transformative purpose, and the use did not substitute for objectives of the original work.  Add the pressured production deadline for a campaign ad and that the candidate’s statements are customary political fodder, and the likely result is a stronger case for the copyright exception.

Instead of going to court, political fair use is usually fought in the trenches among well-meaning and stressed professionals.  At the least, they (i.e., their lawyers) should know the fundamentals of copyright and fair use and be ready to assert or respond to an infringement claim.  They should also know that sometimes presidential politics is breeding ground of fair use.  When Justice Joseph Story developed the concept in an 1841 court ruling, he was deciding a case that involved the published papers of George Washington.

Which takes us to Trump and Watergate.  In the thick of the latest impeachment proceedings, John Dean of Watergate fame, was a guest on CNN when the topic turned to leaked excerpts from the forthcoming book by former National Security Advisor, John Bolton.  While other guests that day honed in on the formidable political threat, John Dean chimed, “You also have copyright issues here.  Start releasing books that are not published.”  The rest of the panel hit the boring button and moved on.  But Dean was onto something – a fair use lesson from his past life in Watergate.

Dean went to jail in the 1970s.  President Nixon resigned.  Gerald Ford gave a pardon, and he wrote a memoir.  The Nation magazine quoted about 300 words from the then-unpublished Ford manuscript.  The U.S. Supreme Court ruled in 1985 that The Nation magazine was not within fair use in reprinting those selected words, from a vastly longer book manuscript, into a critical news report (Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)).  Because the work was yet unpublished, the Supreme Court found that the amount was excessive and interfered with potential sales of the book.

Yes, John Dean, there are “copyright issues” surrounding the Bolton book and the Trump impeachment, especially while the book remains unpublished.  However, copyright also offers some solutions.  The press can write about the book, without necessarily using Bolton’s expression.  Moreover, if publication is stalled or if the public interest escalates, the opportunities for fair use may well expand.

Welcome to the season of fair use.  This is the time when fair use fuels elections and news reporting.  This is the season which begins to define the perimeter between the public interest and the economic marketplace.  This is the quadrennial interlude when fair use blossoms in full and is plainly visible for all to see on the daily news and the pressured campaigns.

Kenneth D. Crews is an attorney in Los Angeles and was formerly a professor of law at Columbia University and Indiana University.  He is the author of the book Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions, available in a new fourth edition launched at the end of February 2020.  Download a sample of the new edition and order online