Fair Use in the Digital Age: Reflections on the Fair Use Doctrine in Copyright Law

On November 12, 2015, the Program on Information Justice and Intellectual Property (PIJIP) at American University Washington College of Law hosted the Fourth Peter A. Jaszi Distinguished Lecture on Intellectual Property. It comes as no surprise that a lecture honoring Prof. Peter A. Jaszi – a prominent figure in copyright and fair use activism – would have an opportunity to feature an equally prominent fair use figure such as the Honorable Judge Pierre N. Leval, of the United States Court of Appeals for the Second Circuit. Both Judge Leval’s 1990 article – “Toward a Fair Use Standard” – and his decision on the Authors Guild v. Google, Inc. (Google Books) case have made him a household name within the intellectual property community. At the lecture on Thursday, he was asked to provide insight on how the doctrine will apply in the digital age. To provide some background, Judge Leval started the lecture by taking the audience back in time to his first encounters with fair use: “copyrights supposedly elusive ‘Firefox’.”

He confessed that despite it being a subject “dear to [his] heart,” during law school he did not heed others’ suggestions to take the copyright course taught by Prof. Benjamin Kaplan. “In a moment of mature judgment,” Judge Leval mentioned,” I thought to take something more useful for the future.” Regardless, fortune dealt Judge Leval with an array of fair use which have culminated to a thirty year process of answering one question: “How does one distinguish and tell fair use?

During his time as a judge for the Southern District of New York, Judge Leval encountered a variety of fair use cases – four of which he spoke of at the lecture. He started at the beginning with Salinger v. Random House (1986) in which a fair use defense was raised against J.D. Salinger’s allegations of infringement. The fair use doctrine had recently been codified within 17 U.S.C. and had precedents that explained the need for it, but there was no actual guidance offered for its application. “Judges had really always ruled from the gut,” Judge Leval said, “and that’s what I did.”

Judge Leval found fair use and ruled in favor of the defendants. However, this was quickly reversed and remanded by the Second Circuit Court of Appeals under the logic that that previously unpublished works were immune from fair use due to a right of privacy. Leval now thinks his opinion deserved to be reversed, but the Court of Appeal’s opinion was even more problematic. He opined that the “[i]nability to quote from unpublished documents would seriously impair history, political commentary, [and] journalism.” As he described Craft v. Kobler (1987), New Era Publications v. Henry Holt & Co. (1988), and American Geophysical Union v. Texaco (1992), a pattern became clear: Judge Leval’s application of the fair use doctrine throughout the past thirty years has been based on furthering the advancement and edification of the public.

Judge Leval then weighed in on the prominent fair use cases the Supreme Court decided around the same. He stated that Sony Corp. v. Universal City Studios – the infamous Betamax case –was a problematic decision because it presented an “incomprehensible” observation: If a use is commercial, then it could not benefit from a fair use defense. “The most conventionally accepted forms of fair use . . . are commercially done,” Judge Leval said, giving examples such as parody, news reporting, and media reviews.

He also expressed concern with– Harper & Row v. Nation (1985). While the Supreme Court provided “a sound and well-explained” decision, it also complicated fair use by presupposing good faith and fair dealing to the doctrine. Judge Leval explained: “Fair use copying does not trespass on an author’s exclusive rights, nor does it become a trespass because the non-infringing act was done in bad faith.”

The recounting of these concerns lead the discussion to Campbell – the case that cited to Judge Leval’s 1990 law review article. The case arrived at the Supreme Court after the Sixth Circuit did not find the defendant’s fair use argument for their parody convincing under the Sony precedent. Campbell presented an opportunity to address the concern Judge Leval had with the Supreme Court’s presumption in Sony that fair use was not applicable to commercial use. Justice Souter provided piece of mind and “put to an end 250 years of rudderless drift” by applying fair use within a balanced, non-conflicting context of copyright’s two main purposes. These purposes are to allow authors to profit from their works and to promote the public knowledge. In order for that non-conflicting balance to be found, Justice Souter looked at the whether the copying would create a substitute of the original market and whether there was a transformative use of the original. Judge Leval noted that even this test was balanced by having a limit on what different purposes would qualify as fair use since some uses would unjustifiably feed off the expression of the original work.

Judge Leval noted four observations that come from the Campbell opinion:

• Simply being a commercial use does not prevent finding fair use;
• The statute is there to reference and establish approval of fair use – not to provide answers or standards;
• The decision allowed there to be doubts on reading a good faith standard into fair use;
• The decision cautioned courts not to readily enjoin people when the accused infringer has presented a reasonable fair use defense.

At the conclusion of his fair use history lesson, Judge Leval rhetorically asked what possibly some audience members were thinking: “So, what about the Google Books case?” His answer was that he had been talking about the Google books – understanding Campbell helps in understanding the Google Books case. Even though the Campbell opinion was written before Google was even created, Judge Leval asserted that the opinion was tailored in a way that it makes it adaptable to the digital age.

The first aspect considered in the Google Books case was whether the class action was appropriately brought. Doubt about the class action arose from the possibility that not all the class members wanted the same relief. However, it was decided that answering this question was dependent on how the district court would rule on the fair use issue. The district court found fair use, the question became moot, and the plaintiff’s appeal focused on the fair use defense.

The first issue that needed to be addressed was the nature of the copies that make up Google Books. Leval mentioned that the definition of “transformative” was not particularly helpful in identifying whether the copies were derivative works since it defines both fair usage and derivative works; both stand on the opposite spectrums of infringement. The dilemma was clearly presented when he walked through what Google had done: they copied physical books and made those copies digital. In itself, Judge Leval admitted, Google had made a transformation. If Google just stopped there and posted the entire copy online, then it would have been infringement. Yet, Google did not do this. It placed the full copies on protected servers, and this worked in its favor.

At this point, Judge Leval referenced Vanderhye v. iParadigms, LLC to illustrate that making full, digitized copies does not automatically constitute infringement. This served as segue into the case’s second issue: Google Books ‘snippet’ feature. Judge Leval affirmed that this feature limited the access a user would have to the full copy – they would only be able to view brief passages with the words they searched for. Judge Leval’s pattern for finding fair use popped up again when he stated that Google Books was there to further public education through research. However, the main issues with the ‘snippet’ views was whether they were transformative and whether they provided a market substitute.

For the transformative use question, a ‘snippet’ provided important information about a book that would help a person determine whether a book would be useful or not for their research. Therefore, he found it to be “a transformative use . . . favored by Campbell.”

On the question of market substitution, one of the two the arguments made against Google Books was that people could potentially make a substitute through multiple searches. Judge Leval said that this was trumped by the impracticability of the notion. A user would only get a fragmented substitute after spending a lot of time doing multiple searches. The other argument e was that a snippet could contain the information a person needs, so he or she would no longer seek out the book. This argument was made moot by Judge Leval when these potential substitution ‘snippets’ carry facts – something which is not protected under copyright. As a result of this analysis, Judge Leval found fair use in favor of Google.

Judge Leval ended his discussion on the Google Books case by restating that the Campbell decision is “sensible for the digital future.” His central message was that fair use is comprehensible and it is a standard that applied is through the appraisal of common sense. With an extensive history with fair use and his recent Authors Guild v. Google, Inc. opinion, Judge Leval has shown that fair use is not the ‘”Firefox” some make it out to be.