August 23, 2004  ·  Richard Posner

I’ve received some interesting comments on my last posting. One of the commenters asked me to explain the fair use doctrine; here goes.

The doctrine, which has close counterparts in patent and trademark law, permits a degree of unauthorized copying of copyrighted works. Shocking! If a teenager takes a joyride in my car and is arrested, can he defend by arguing that it was a “fair use”? No, but the example points up an important difference between physical and intellectual property, a difference obscured by the use of words like “theft” and “piracy” to describe unauthorized copying. If someone takes my car, he deprives me of its use. If he copies my copyrighted book, I still can read, use, and sell the book, although my publisher’s and my income may be less because one fewer copy will be sold. But maybe not–maybe the copycat wouldn’t have bought the book if he’d had to pay the retail price. And if instead of copying an entire book, a book reviewer quotes a paragraph from it, I may well be better off (in contrast, say, to someone who doesn’t want to drive my car but just store stuff in the trunk); and if he had to get my permission to quote, I might be worse off, especially since reviews would lack credibility if reviewers needed the author’s permission to quote. Unauthorized quotation by book reviewers is an example of fair use.

The fair use doctrine originated as a judicial doctrine, and like many judicial doctrines was general in terms, setting forth a standard rather than a set of precise rules. Congress put a clumsy thumb in the pudding in 1976, when it “codified” the doctrine. It wasn’t really codification, because Congress did not set down a legislative rule to supplant the judicial one; it just listed four factors for courts to consider, and it made clear, as is sometimes overlooked but as I tried to make clear in my opinion in one of my court’s countless (and fascinating) “Beanie Baby” copyright cases, Ty, Inc. v. Publications Int’l Ltd., that the four factors are neither exclusive nor mandatory.

Where does that leave us? The general view, which you find in advice to authors, as in “Copyright and Fair Use,” is that fair use is very vague: “The only guidance is provided by a set of fair use factors outlined in the copyright law. These factors are weighed in each case to determine whether a use qualifies as a fair use. For example, one important factor is whether your use will deprive the copyright owner of income. Unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate.”

That’s certainly true if fair use is applied on a case by case basis, using either the four factors or some more general–and more accurate–standard such as that unauthorized copying is permissible when it does not seriously infringe the legitimate interests of the copyright owner. But that isn’t the right approach; it’s much too vague. The right approach is categorical. Book reviewers can quote from the books they’re reviewing. Period (unless, perhaps, the book is so short, and the review so long, and the review quotes so much of the book, that the review becomes an actual substitute for the book–but I’ve never heard of such a case). Parodists can copy a big swatch of the parodied work–otherwise it won’t be recognized as a parody. And so on–and, Patry and I believe, copying of old copyrighted works should be permitted if the copyright owner has not taken minimal steps to place copiers on notice of his interest.

  • Joe H.

    I have a couple of concerns about the registration/notification proposal.

    First:
    How will works be identified? Copyright notices are no longer required — some works don’t even list a title or author.
    This is a problem for the person wishing to register the copyright and also for anyone trying to verify if a copyright interest has been registered.

    Second:
    How can ownership be validated? I can envision people registering everything they can find, if it the copyright is owned by them or not. Similarly, if there are two registrations how can one tell which is correct?

    Third:
    What would be the standard for invoking this type of fair use protection? Would due dilligence be all that is required? This is important because there might be many places to search, some less well known than others, and some might charge fees to do searches.

  • Ramesh Mantha

    Judge Posner,

    Most of your fair use discussion seems oriented towards various creative or editorial uses of material (e.g. reviews, parody, etc.). This is consistent with various discussions I’ve found on fair use doctrine and the four factors on the web.

    However I don’t see how the case of copies for personal use is addressed. I can’t see a compelling legal justification of me ripping a purchased CD for use on my own MP3 player. I of course think such activities should be permitted but how can this be justified within the context of existing fair use doctrine?

  • http://www.lawhacker.com Andrew Greenberg

    I’m fairly excited about this notion, and indeed there is a precedential path to track to the idea. I have been musing about the evolution of case law from William & Wilkins case, which considered whether research copying of articles from journals was fair use. In 1973, at a time when journals were very expensive, and it was virtually intractable to negotiate individual duplication rights — if they were available at all, it made sense to bless a certain amount of copying, which to me explained the result of the case: fair use.

    A few decades later, in the American Geophysical case against Texaco, revisited the question when research scientists made photocopies of shared original copies of journals for their research files. Judge Leval was impressed by the intervening creation of the Copyright Clearance Center, which made it possible for an entity to readily obtain with nominal transaction costs (and at an arguably fair price) the right to make a copy of an article, using any means available and the original obtained from any source. This, to me, explained the results of that case: not fair use.

    If by her conduct, a copyright owner has orphaned a work or failed to give notice how and where she should be contacted to obtain licenses in the work, it may well be fair use to exercise virtually all of the exclusive rights under appropriate auspices.

    I daresay that this argument might bleed into some of the secondary liability issues as well, in cases where a technology is accused of having primarily infringing uses — precisely because the consortium refused to provide its content using the technology. Compare the percentage of legal viewing of movies today using video tape machines, given plenary access to content at a reasonable price, as compared to that pre-Sony. Is it possible that the unilateral refusal to deal (with respect to formatting of content) may justify tools enabling owners of lawful copies to adapt to the new technology?

    I imagine there may be concerns that this approach, at least for orphaned content, might create a de facto registration requirement (at least for past damages), and that this may reintroduce formalities in violation of the Berne Convention. But maybe not.

    In any case, I will look forward with interest to the paper — where will it be published?

  • AJ

    Hi Judge Posner,

    I really enjoy reading your publications and, believe it or not, your judicial opinions too. I think you are the brightest and best judge in the country, and probably the world. You made law school a lot of fun – and I didn’t even attend Chicago.

    You explained the meaning of fair use in copyright law, and briefly stated there are counterparts in patent law as well. Could you elaborate on the “fair use” doctrine as it concerns patent law? I understand the Federal Circuit has exclusive appellate jurisdiction in these cases – and you are not on the Federal Circuit – but I bet you have enough academic insights to adequately explain this. Besides, I never considered fair use an issue in patent infringement cases.

    That reminds me, how come you dedicated only one substantive chapter on patent law? That was my only disappoint with your and Landes’ recent IP book.

    A.J.

  • http://www.newmediamusings.com JD Lasica

    Your honor,

    It strikes me as absurd that parody is allowed under fair use but satire is not. What’s your view?

    In the modern age, with thousands of people taking up the tools of digital expression and creativity and wanting to borrow from the culture at large (as Larry Lessig has so capably documented), isn’t it time to revisit and revise the copyright laws to make them accord with the behavior and desires of the public?

  • http://law.shu.edu/faculty/fulltime_faculty/pasquafa/pasquale.html Frank

    First of all, I want to commend your Ty, Inc. v. PIL decision to anyone interested in fair use issues–it’s probably the most insightful opinion on the topic in the past 10 years. However, I think the “categorical approach” you endorse in this post would undermine future opinions like Ty–i.e., opinions in which an economically sophisticated judge attempted to impose some order on the fair use doctrine by looking at the actual economic effects of a use. That’s because judges would be too eager to classify contested uses as “satire” or “parody” or whatever other improvised category exists, instead of looking at the actual economic effects of a work.

    I also hope that your article avoids the literature’s current obsession with text-based copyrighted works. Perhaps literary property cases form the core of classic copyright doctrine, but copyright’s effect on our economy (and cultural life) is now felt much more in the areas of software, music, movies, and software-embedded consumer items like printer cartridges. Judge Leval’s focus on text makes his key work on the subject, Toward a Fair Use Standard in Copyright, basicallly obsolete today.

  • Andrew Leifer

    Frank,
    I disagree with your post. Text-based copyright works are neither economocally insignificant nor obsolete. Professor Wu wrote an article in Slate not so long ago about J.K. Rowling’s now-successfull efforts to destroy foreign parodies of her Harry Potter books via international copyright law. The case raises issues about the validity of fair use overseas. As far as economics go, Rowlings is now the richest female in Britain and the richest author of all time and spearheads a 2 billion-pound Potter franchise including books, films and toys.

    Tim Wu’s article:
    http://slate.msn.com/id/2084960/

    My thoughts:
    http://pwr.stanford.edu/publications/Boothe_0304/PWR%20Leifer.pdf

  • Frank

    Andrew,

    I don’t mean to say that text-based works aren’t important–just that the law governing other copyrighted expression (like music and software) shouldn’t necessarily be the same as that governing text based work. Lessig, for example, has argued in Wired that a 5-year term for software copyright would be much better than the current rule, which saddles it with the same term as all other works (which may “deserve” longer protection).

    As for Potter–yes, it’s absurd that Rowling should be able to control or stamp out these parodies/fanfiction/etc. She, her publisher, etc. have clearly been compensated enough to “incentivize” future works in this area. In fact, I think anyone who has over 2 million dollars in the bank has a moral obligation to give away a large portion of their income to the neediest (assuming a standard annuity return of 5%)….and I’d have no problem with the copyright system effectively appropriating some of Rowling’s surplus once she’d reached that point, if the money was put toward, say, health care for the neediest…but that’s another topic!

    –Frank

  • Andrew Leifer

    Frank,

    I apologize, I obviously misunderstood your initial post. It makes a lot of sense to treat digital forms of IP such as software seperately.

    Very good point.

  • mrkmyr

    Fair use is not just an economically convenient doctrine that allows for copying that is beneficial to society. Fair use is a necessary doctrine to protect peoples right to Free Speech. How can one criticize Judge Posner’s forthcoming book, without being able to quote the shoddily written passages? Similarly, it would be difficult for PIL to effectively review and discuss the market for Ty’s beanie babies without showing picture of the items in question. A picture best communicates what the baby in question looks like.

  • http://www.xanga.com/publicdomain WJM

    Fair use is a necessary doctrine to protect peoples right to Free Speech.

    That’s part of the rationale for fair use/fair dealing (FUD), but not all of it.

    FUD exemptions also benefit institutions like schools and libraries. The rationale for those exemptions isn’t founded in free speech; it’s founded in the the idea that those exemptions are for the greater good, that any economic harm to creators, even if quantifiable rather than metaphysical, is outweighed by the benefit to society in general, and to creators in the long run, from the use of their works as a contribution to creating a literate and cultured society.

  • Paul Kamp

    I would like to question an aspect of fair use that may apply to a particular problem the content developers are facing today. That is digitally copying of material.

    There have been a significant number of lawsuits against individuals who downloaded music. However, is it fair use if the individual already owns a particular piece of music but it is on 8-track tape?

    For me the answer is fairly important. I have a large collection of albums. I would like to use the content on my iPod. Can I download copies of that music from the internet without violating the copyright?

    Based upon my reading of the copyright law, as applied to backup computer software, time shifting of television shows, etc., I beleive that downloading music that you may already ‘own’ is permissable.

    However, as with much of this fair use discussion, it is very muddy and undefined. I would appreciate other people’s perspective on this.

  • Joseph Pietro Riolo

    To Paul Kamp,

    I don’t think that you can download digital music
    without paying for it for the music that exists in
    your old albums. Else, the U.S. copyright law could
    explicitly grant an exception.

    For your situation, it is not an issue of “fair use”.
    That is, you want to download digital music not for
    “criticism, comment, news reporting, teaching (including
    multiple copies for classroom use), scholarship, or
    research” but for your pure personal entertainment.

    Others will disagree with me. The reason is that
    because of the DAT (Digital Audio Tape) tax – it is
    not a tax but it is a royalty as required by the
    U.S. copyright law – that is imposed on DAT
    recorders and blank DAT media, people are entitled
    to have an extra copy of music for his/her personal,
    noncommercial use. They claim that this implies
    that you can download a music for the one that you
    have in your old albums. I tend to be conservative
    and I don’t buy that reasoning.

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • Paul Kamp

    Joseph,

    Thanks for you thoughtful post. However, I disagree with the conclusion. Let me explain.

    Assume that I have my albums already. I have a right to listen to them for my personal use. Under the fair use doctrine, I can ‘copy’ it to a cassette so I can listen to them in my car.

    Using this portion of the fair-use doctrine I could record the albums into digital format then manipulate the music to improve the dynamic range,take out skips, etc. and transfer them to my iPod.

    I am trying to understand how far this right extends. Because I have the right to use the music already I am not asking for more rights than I already possess. I am trying to understand whether the fair-use transfer to a different format must follow a particular path.

  • Todd Jonz

    Paul,

    There would seem to be an analogy to be drawn between your situation and the original Napster implementation.

    If I recall correctly, Napster allowed its users to upload content from CDs they owned and store it in their personal “lockers” on Napsters servers. This allowed them to listen to their music across the net from a remote location without having to have the physical CD in their posession. As one might expect, a lot of users were uploading the same content, wasting a lot of time, storage, and bandwidth. Napster decided to store popular content on their servers themselves, and when users wished to access this content they were asked to insert their original CD so that Napster’s client software could verify their “ownership” of that content.

    From a practical, common sense point of view, this process made a lot of sense, just as your desire to download digital copies of music you already “own” in another format makes sense. Unfortuanately, however, the court disagreed in the Napster case, and determined that Napster had violated the copywrites on the files they had stored without permission.

    If this is, in fact, a valid parallel, it raises an interesting question. Were any Napster users ever found in violation of copywrite laws for downloading content stored illegally by Napster but which they could prove they already “owned?” If not, then precendent (if perhaps not the law) might appear to be on your side.

  • Paul Kamp

    Todd,

    I understand the analogy and I think it is appropriate. However, I am uncertain about the actual Napster decision. I believe that the court probably ruled more on the file sharing than on the ownership. It may have been because the ‘lockers’ were unlocked and available to all and thus file sharing/stealing would occur. Perhpas if the lockers were shown to be secure then they would have been okay.

    Does anyone have more insight?

  • Joseph Pietro Riolo

    To Paul Kamp,

    Let me point out one misconception. Fair use as
    described in Section 107 does not allow you to
    copy a music from your album to cassette for the
    purpose of entertaining yourself or exercising
    your right to listen to music. None of the six
    purposes in Section 107 covers entertainment or
    right to listen to music.

    It is Section 1008 that protects you from the
    accusation for infringement when you make such
    copy only for your personal, noncommercial,
    private use. Chapter 10 seems to allow you
    to record music from your albums to your
    digital medium for your own private use on
    your iPod. This is very different from your
    earlier post where you said that you want to
    download a music from somewhere outside of your
    own collection of albums.

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • Paul Kamp

    Joseph,

    Understood, that is actually my point. Is there an inherent right to the ‘content’ for personal, noncommercial, private use of ‘content’ that has already been purchased (owned, licensed, etc.). Or if there must be a chain of possession to assert that right.

    The Napster example provided by Todd is on point because you did not need to upload your version of content to your locker as long as you could show that you owned the content already. They provided you the copy for your ‘locker’ from their archive.

    Perhaps I could have worded it better originally to avoid the confusion. But this is what I was asking, is there a right to download content that is already ‘owned’. The 2 scenarios are:

    album -> digital transfer to PC -> digitally modify -> listen

    or

    album (no transfer) download of the same music -> listen

    However, it does not appear that the Napster case determined this component. Does chapter 10 enables this type of transfer for personal, noncommercial, private use? And if so, how far does that right extend? To me it remains unclear.

    Basically, most consumers would strongly prefer not to pay for the same ‘content’ multiple times (album, 8-track, cassette, CD, iTMS). I am one such consumer.

    However, the content industry has made a good amount of money selling people the same content multiple times.

  • Joseph Pietro Riolo

    To Paul Kamp,

    Thanks for explaining more.

    Based on the history of 10th chapter in the U.S. copyright
    law (through the law titled “The Audio Home Recording Act
    of 1992″), you really need a copy that you lawfully purchased
    or possessed or a copy that was lawfully distributed to you
    (such as through radio).

    So, it is not the content that you have a “right” to. (I put the
    word right in the quotation marks because it is not a word
    that is used in 10th chapter. You are only allowed to do so.)
    You have to physically copy from your album to your digital
    audio recording medium even though you could find the same
    content on network that you can download.

    It may sound strange and wasteful not to download the same
    content from network but copyright is about copies. If you
    don’t have a legal copy that you lawfully purchased or
    possessed, you can’t do anything.

    Some (or many, I have no idea how many) people don’t
    bother copying music in old formats to new formats and
    would be content with paying the same content more than
    once.

    One last note: The device that you use to transfer from
    album to PC needs to satisfy some requirements in the 10th
    chapter.

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.