{"id":412,"date":"2021-02-22T04:12:05","date_gmt":"2021-02-22T04:12:05","guid":{"rendered":"http:\/\/blogs.harvard.edu\/copyrightosc\/?p=412"},"modified":"2021-02-22T04:37:31","modified_gmt":"2021-02-22T04:37:31","slug":"fair-use-week-2021-day-one-with-guest-expert-kenneth-d-crews","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/2021\/02\/22\/fair-use-week-2021-day-one-with-guest-expert-kenneth-d-crews\/","title":{"rendered":"Fair Use Week 2021: Day One With Guest Expert Kenneth D. Crews"},"content":{"rendered":"

We are delighted to kick off the 8th Annual Fair Use Week with a guest post by the worldwide copyright expert, Kenneth D. Crews, as he contemplates an important question on the most recent U.S. copyright legislation. -Kyle K. Courtney<\/em><\/p>\n

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Can Fair Use Survive the CASE Act?<\/strong><\/h2>\n

by Kenneth D. Crews<\/p>\n

When Congress thinks of COVID, it seems to also think about copyright.\u00a0 Congress made that connection at a critical moment this last December.\u00a0 Embedded in the appropriations bill<\/a> that gave emergency funding to citizens in need, was a thoroughly unrelated provision establishing a copyright \u201csmall-claims court,\u201d where many future infringements may face their decider.\u00a0 The defense of fair use will also be on the docket.<\/p>\n

The new law, known as the CASE Act<\/a>, establishes the Copyright Claims Board within the U.S. Copyright Office, where parties may voluntarily allow their infringement cases to be heard.\u00a0 A copyright owner, as \u201cclaimant,\u201d may choose to commence legal action in the new agency.\u00a0 The user of the work, or the \u201crespondent,\u201d may allow the matter to proceed or may choose to opt-out, effectively sending the case back to the copyright owner to decide whether to drop the matter or file a full-fledged lawsuit in federal court.<\/p>\n

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Realistically, this new court-like Board may be a dark hole where cases mysteriously disappear.\u00a0 Some claims will be filed and then bounced as the respondents opt-out.\u00a0 Other claims will be launched, and respondents will simply vanish or fail to understand or react at all, sending the matter into default.\u00a0 When a proceeding finally comes to fruition, the parties will investigate and present evidence, and the three appointed Copyright Claims Officers will determine the outcome of each case.\u00a0 Any claim of infringement will be subject to relevant defenses, such as expiration of the copyright, as well as fair use and other copyright exceptions.<\/p>\n

The Copyright Claims Board will not open for business until late in 2021 at the soonest, but this is a good time to contemplate how fair use might play out.\u00a0 Think of these stages and possibilities:<\/p>\n

 <\/p>\n

Raising the Defense.<\/em><\/strong>\u00a0A proceeding begins with the filing of a claim and the formal delivery of notice on the respondent.\u00a0 The first mention of fair use (or any other copyright exception) will typically appear in the respondent\u2019s reply.\u00a0 But surely the claimant will foresee fair use asserted in many of these small-claims proceedings.<\/p>\n

Gathering the Evidence.<\/strong><\/em>\u00a0<\/strong>Courts and commentaries regularly remind us that fair use is a fact-specific matter, and the details of each case can determine the outcome.\u00a0 Staff attorneys working for the Board have the authority to investigate a matter, and the Officers have the authority to allow the introduction of evidence.\u00a0 Think of that fourth factor of fair use: the effect of the use on the market for or value of the work.\u00a0 A court will often need confidential economic data about the sales of the work in question and the revenue earned.\u00a0 The Copyright Claims Officers, parties, and staff attorneys do not have clear authority to compel disclosures and discovery.\u00a0 They can \u201crequest\u201d documents and information.\u00a0 As a result, the Board could frequently be called upon to decide questions of fair use, but without the needed evidence.\u00a0 The choices at that point will be far from satisfactory.<\/p>\n

Reporting the Decision.<\/em><\/strong>\u00a0The Board is required to make a public disclosure of its decisions and the legal basis for rulings, but the statute includes few other details.\u00a0 The public announcement of a ruling might be little more than a conclusion, leaving only by implication the resolution of the fair use argument and the reasoning.\u00a0 On the other hand, the ruling on fair use could<\/em> be an elaborate legal analysis.\u00a0 Because the parties have limited ability to appeal a ruling, the Officers might not feel the need to hand down complex opinions.<\/p>\n

Depth of the Analysis<\/strong>.\u00a0<\/em>On the other hand, all judges know that their rulings on fair use are convincing to parties and lawyers only if their analyses are solidly persuasive.\u00a0 The same will be expected of the new Copyright Claims Officers, and for that reason they might want to pursue trenchant examinations of fair use.\u00a0 The Officers will also be looking to the parties for their arguments, and the parties are permitted to be represented by attorneys (or even by law students).\u00a0 Keep in mind that the typical proceeding will involve a modest use of a single work, and such users will also typically not be in position to retain specialized and expensive legal counsel.\u00a0 Consequently, the legal analyses presented to the Officers will often be far from equitable as between the parties.<\/p>\n

Creation of Precedent.<\/em><\/strong>\u00a0Decisions from the Copyright Claims Board will not be binding on anyone other than the immediate parties, and they officially will have no precedential value in later actions in a court or before the Board.\u00a0 Yet conventions of lawyering and the inevitability of human reasoning will surely press to the contrary.\u00a0 As the Board builds a record of rulings, the outcomes and the reasoning will undoubtedly be fodder for scrutiny and statistical tabulation.\u00a0 Individual rulings will in some manner be referenced in later proceedings.\u00a0 Analyses of trends and patterns will be pursued for their scholarly value and as insights for parties and attorneys thinking about the next case to come before the new Board.<\/p>\n

Can fair use survive in this small-claims Board? Technically, the answer is definitely yes. However, fair use may also be vulnerable to distorted determinations, resulting from the lack of critical evidence, the pressure to manage a growing roster of legal proceedings, and the inequities of legal representation. Until the court can demonstrate a record of wise and effective rulings on fair use, any party to a claim that is likely to hinge on an innovative or nuanced question of fair use would probably we wise to opt-out of small claims and send the case to settlement or federal court.<\/p>\n

Kenneth D. Crews<\/em><\/a> is an attorney and copyright consultant in Los Angeles, and he was previously a faculty member and copyright policy officer at Indiana and Columbia Universities.\u00a0 He is the author numerous publications on fair use, including <\/em>Copyright Law for Librarians and Educators<\/em><\/a>, published by ALA Editions. The publisher has kindly made the new fourth edition of the book available at half price during Fair Use Week.<\/strong><\/a><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

We are delighted to kick off the 8th Annual Fair Use Week with a guest post by the worldwide copyright expert, Kenneth D. Crews, as he contemplates an important question on the most recent U.S. copyright legislation. -Kyle K. Courtney Can Fair Use Survive the CASE Act? by Kenneth D. Crews When Congress thinks of […]<\/p>\n","protected":false},"author":6259,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[257,690],"tags":[138869,65,138870,138871],"class_list":["post-412","post","type-post","status-publish","format-standard","hentry","category-copyright","category-fair-use","tag-copyright","tag-copyright-law","tag-fair-use","tag-fair-use-week"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p7gxeS-6E","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/412","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/users\/6259"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/comments?post=412"}],"version-history":[{"count":11,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/412\/revisions"}],"predecessor-version":[{"id":429,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/412\/revisions\/429"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/media?parent=412"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/categories?post=412"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/tags?post=412"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}