Fair Use Michael I. Shamos, Ph.D., J.D. Institute for Software Research School of Computer Science Carnegie Mellon University LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Policy Goal of Copyright Congress had the power to grant EXCLUSIVE rights to authors, yet did not exercise that power. It granted certain rights to the public. U.S.: economic incentive, encouragement of creativity through reward Japan: educational purpose Copyright never confers an absolute monopoly U.S. Government cannot be enjoined from infringement, but must pay for use States cannot be sued for copyright infringement Compulsory licenses – rights for which payment is made Fair use – rights allowed to the public for free LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Compulsory Licensing Owner may not refuse to license. User must pay. Fees may be statutory, or set by an independent commission, sometimes case-by-case Example: U.S. compulsory license for sound recordings of non-dramatic musical works, set by Copyright Royalty Tribunal Per-copy rate: greater of 9.1 cents or 1.75 cents per minute of playing time; ringtones: $0.24 Also compulsory license for retransmission of television programming. Widespread in Canada. Japan has an extensive compulsory licensing scheme Problem: for public uses, where does the money come from?

Public Lending Right (PLR) Not recognized in U.S. When books are borrowed from libraries, the author receives nothing. Reduces revenue from the work In the UK, Government provides a fixed annual pool of funds (since 1979) Number of times a book is checked out is counted. Pool divided pro rata to authors: 8.20 pence per loan, up to a maximum of £6,600 per work Pool of about £6.6M. About 22,000 authors received payments for 2016. 202 received £6,600 Fewer books are being checked out! No payment for in-library use Who benefits? Already wealthy authors of best-sellers, e.g., J.K. Rowling (Harry Potter)

Berne Convention for the Protection of Literary and Artistic Works 1886 copyright treaty now signed by 176 countries US signed in 1989, 103 years later! PRC signed in 1993 Fundamental concept: “national treatment” – foreigners have the same rights as nationals. “Registration” is not required to secure rights. All works except photographic and cinematographic shall have a term of at least 50 years after the author's death Certain rights MUST be granted; certain others MUST NOT be granted. LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS Compulsory License Treaty limitations Berne Convention nations (e.g. U.S.) may provide for compulsory licensing of certain types of works (e.g. musical works) May NOT provide for compulsory licensing of other types (e.g. cinema) Silent on other classes of works (e.g. books) LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS Fair Use Not all use of copyrighted works is prohibited “Fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” 17 U.S.C. §107 LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Fair Use: Purpose and Application Purpose: Balance rights of the author with rights of the public To encourage progress, people must be able to build on existing work Fair use cases are very fact-specific Equitable doctrine Based on fairness “Unclean Hands” Defense to copyright infringement LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Statutory Fair Use Test “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work [e.g. factual v. fictional]; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect [on] the potential market for or value of the copyrighted work [does it reduce the demand for the original?]” 17 U.S.C. §107 Nature of the work: More creative uses are likely to get more protection. Fact-based, historical, or nonfiction works have “thin copyright.”

LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS Transformative Uses The “purpose and character of the use” test takes into account whether there has been bare copying or some “transformative use,” i.e. the creation of new material from the original Has the material taken been transformed by adding new expression or meaning? Was value added to the original by creating new information, new aesthetics, new insights and understandings? If so, the use is transformative and may be fair (Preparing entire derivative works is usually not fair.) LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Nature of the Copyrighted Work Certain kinds of works are “closer to the heart” of copyright protection. Nonfiction, fact-based, historical: “thin copyright” The most fanciful/creative works get more protection. Use of these types of works is less likely to get a fair use defense. Use of more utilitarian works is more likely to have successful fair use defense. LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Amount and Substantiality Look at portion used in comparison to the work from which it was taken, not the work in which it was used. It doesn't matter if the portion used is only a small part of the borrowing work. “Amount and substantiality”: Fair use depends not only on how much of the work was used, but how important the part was. Example: Republishing the good parts of Gerald Ford’s new book before publication of the book was not fair use, even though only a small part of the book was republished. Harper & Roe Publishers v. Nation Enterprises, 471 U.S. 539 (1985). LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS Fair Use Examples Time-shifting Recording TV shows for personal use Backup Making extra copies of software (not for use, but for archive) Finding aids Indexes, lists of tables of contents, abstracts Parody LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS Classroom Use “Classroom use” literally means use in the classroom, not “course use.” A teacher may pass out copies (e.g. of poetry) in class, but the copies must be collected a students leave the room LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Fair Use Questions Entire publications of the Church of Scientology were posted on the Internet by individuals without Church permission Not a fair use The Washington Post used three brief quotations from Church of Scientology texts posted on the Internet Fair use A company published a book of trivia questions about the “Seinfeld” television series. It included questions based on events and characters in 84 episodes and used actual dialogue from the show in 41 of the book's questions.

LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS Fair Use Questions A television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin's death. Not a fair use The makers of a movie biography of Muhammad Ali included 41 seconds from a boxing match film. Fair use Copying to disassemble a computer program to obtain its unprotectible methods of operation. Downloading music allegedly to decide whether to buy a copy LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS Time Shifting Universal City Studios v. Sony Corp., 464 U.S. 417 (1984) Sony marketed a video recorder called the Betamax, which could be used by consumers to make videotapes of TV programs Universal was a producer of TV programs. It sued Sony for contributory infringement LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Universal City Studios v. Sony Corp., 464 U.S. 417 (1984) Supreme Court decision: Home videotaping of a TV program is a fair use, even though an entire show (100%) is recorded Evidence: most viewers were “time-shifting” (taping in order to watch later) and not “library-building” (collecting the videos in order to build a video library) The delayed system of viewing did not deprive copyright owners of revenue. LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Sony v. Connectix 203 F.3d 596 (9th Cir. 2000) Sony makes the PlayStation, which contains a firmware BIOS Connectix makes the “Virtual Game Station,” which is an emulator for the PlayStation so people who buy PlayStation games can use them on a PC To create the Virtual Game Station, Connectix repeatedly copied the software from PlayStation to reverse engineer it Sony sued. The District Court found that the copying was not a fair use and enjoined distribution of the Virtual Game Station. Connectix appealed. LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS Sony v. Connectix On appeal, the 9th Circuit held that copying for purposes of reverse engineering, to make a non-infringing substitute, was a fair use Copying necessary to obtain the unprotected methods of operation, ideas, processes, etc. Contents of the BIOS could not be deduced by observing the operation of the PlayStation, so copying was necessary LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS Viewing Web Pages Is it a copyright infringement to view a web page? Exactly why or why not? Is it a copyright infringement to make a copy of a web page on your hard disk? Is it copyright infringement to put a copy of someone else’s web page on your website? Is it copyright infringement to put portions of someone else’s web page (e.g., images) on your website? LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

American Geophysical Union v. Texaco, 60 F.3d 913 (2d Cir. 1994) American Geophysical Union and 82 other plaintiffs are publishers of scientific journals Texaco, in one of its research laboratories, maintains three paid subscriptions to the journal Catalysis. Texaco regular photocopies and distributes articles from Catalysis to its research scientists Is institutional, systematic copying of articles for research purposes by a company a fair use? The District Court said no, and certified an interlocutory appeal to the Second Circuit LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

American Geophysical Union v. Texaco First factor: purpose and character of the use Does the user stand “to profit from exploitation of the copyrighted material without paying the customary price”? Here, Texaco bought 3 subscriptions but made many copies Also, use not transformative Second factor: nature of the copyrighted work The work is predominantly factual, which favors Texaco Third factor: amount and substantiality of the taking Entire articles were copied. “militates against” fair use Fourth factor: effect on potential market Because of lost revenue, this factor favors the publishers With three out of four factors against fair use, the use was not fair LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Parody Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) Luther Campbell of 2 Live Crew wrote “Pretty Woman,” a parody of Roy Orbison’s song “Oh, Pretty Woman.” 2 Live Crew’s manager sought permission to license the song for parody. Acuff-Rose refused. 2 Live Crew released the song anyway. A year later, after over 250,000 copies had been sold, Acuff-Rose sued. District court held: parody was fair use. Sixth Circuit reversed. Supreme Court granted review. LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS Parody Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) Purpose and character of use Parody may be fair use. It has “obvious claim to transformative value.” Commercial nature isn’t enough to prevent a parody from being fair use Threshold question: “whether a parodic character may reasonably be perceived.” Whether the parody is in good or bad taste is irrelevant. Nature of the copyrighted work Not much help. Parodies almost always copy published creative works. LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) Amount and substantiality of the portion used Parody requires pulling enough from the source material that it’s recognizable. Copying doesn’t become excessive for parody purposes just because it takes the "heart" of the original. Effect on the potential market Does the use displace or merely disparage the original? Held: Fair use. LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Authors Guild v. Google, Inc., 12-4829-cv (2d Cir. Oct. 16, 2015) Google’s Library Project and Google Books scanned tens of millions of books, many of which are still in copyright Google stores the full text of these works, but for copyrighted works only retrieves “snippets” Libraries that submit books receive a digital copy from Google in return Google does not have permission from the copyright owners LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Paid Ads Search terms Search hits Copyrighted book (Springer) Snippet

Authors Guild v. Google, Inc., 12-4829-cv (2d Cir. Oct. 16, 2015) Authors and publishers sued Google for copyright infringement in 2005. Plaintiffs claimed: No fair use because entire works were taken No fair use because ads were sold, hence purpose is commercial No fair use because not transformative Owner’s right to make derivative works, e.g., search engines, is infringed Storage of digital copies exposes entire works to hackers LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Authors Guild v. Google, Inc., 12-4829-cv (2d Cir. Oct. 16, 2015) Second Circuit, October 16, 2015, 51-page opinion: “This copyright dispute tests the boundaries of fair use.” (April 2016: Supreme Court refused review.) “Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them. The same is true, at least under present conditions, of Google’s provision of the snippet function.” LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Authors Guild v. Google, Inc., 12-4829-cv (2d Cir. Oct. 16, 2015) “Plaintiffs’ contention that Google has usurped their opportunity to access paid and unpaid licensing markets for substantially the same functions that Google provides fails, in part because the licensing markets in fact involve very different functions than those that Google provides, and in part because an author’s derivative rights do not include an exclusive right to supply information (of the sort provided by Google) about her works. Google’s profit motivation does not in these circumstances justify denial of fair use. Google’s program does not, at this time and on the record before us, expose Plaintiffs to an unreasonable risk of loss of copyright value through incursions of hackers.” LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Secondary Infringement Liability Direct Infringement Party commits the act of infringement itself Contributory infringement Party knows of direct infringement by another and induces, materially aids or contributes to the infringement, as by supplying essential tools Vicarious Liability Is in a position to control the direct infringer and directly benefits financially from the infringement LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS Major Ideas Fair use is not a copyright infringement Fair use depends on four factors, all of which must be considered. No single one is dispositive. purpose and character of the use (nonprofit, educational? nature of the copyrighted work (factual or fictional?) amount and substantiality of the portion used effect the potential market for the work Transformative uses are more likely to be fair Copying entire works is not likely to be fair, but time- shifting for personal use is fair LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS Q A & LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Secondary Infringement Liability Musical Group SOURCE: WILLIAM FISHER

Secondary Infringement Liability Musical Group Public Audience SOURCE: WILLIAM FISHER

Secondary Infringement Liability Manager Musical Group Public Audience SOURCE: WILLIAM FISHER

Secondary Infringement Liability Manager Theatre Owner Musical Group Public Audience SOURCE: WILLIAM FISHER

Copyright Owner Theatre Manager Owner Musical Group Public Audience SOURCE: WILLIAM FISHER

Copyright Owner Theatre Manager Owner Musical Group Public Audience Direct Infringement Manager Theatre Owner Musical Group Public Audience SOURCE: WILLIAM FISHER

Copyright Owner Theatre Manager Owner Musical Group Public Audience Contributory Infringement Direct Infringement Manager Theatre Owner Musical Group Knows of direct infringement by another and induces, materially aids or contributes to the infringement, as by supplying essential tools Public Audience SOURCE: WILLIAM FISHER

Copyright Owner Theatre Manager Owner Musical Group Public Audience Vicarious Liability Contributory Infringement Direct Infringement Manager Theatre Owner Musical Group Knows of direct infringement by another and induces, materially aids or contributes to the infringement, as by supplying essential tools Is in a position to control the direct infringer and benefits financially from the infringement Public Audience SOURCE: WILLIAM FISHER

LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS Kelly v. Arriba Soft Corp., 114 F.Supp.2d 1116 (C.D. Cal. 1999), aff’d in part, reversed in part, remanded 280 F.3d 934 (9th Cir. 2002) Arriba Soft ran a search engine that displayed images obtained by spidering the web. It downloaded full-size images, reduced them to small thumbnails, then discarded the full-size images. (See, e.g., Google.) Kelly was a photographer Users could search for images; Arriba would display thumbnails Clicking a thumbnail would access the original web page but display only the image Kelly had copyrighted photos on his website; 35 appeared on Arriba LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS

Kelly v. Arriba Soft Corp. Kelly sued for copyright infringement & violation of the DMCA District court held for Arriba Soft; Kelly appealed Held, no copyright infringement for the thumbnails. Fair use as a finding aid Reversed, as to infringement of the public display right for the full-sized images LAW OF COMPUTER TECHNOLOGY FALL 2018 © 2018 MICHAEL I. SHAMOS