CS-202: Law For Computer
Science Professionals
Class 7: More Copyright Law
David W. Hansen, Instructor
November 30, 2006
© 2006 Skadden, Arps, Slate, Meagher & Flom LLP
Fair Use
Fair Use
• The “fair use” doctrine is an equitable
rule of reason that allows the use of
copyrighted materials in limited
circumstances.
• “In determining whether the use made
of a work in any particular case is a fair
use the factors to be considered shall
include -– (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.
(17 U.S.C.§107)
Fair Use
• Section 107 does not provide an
exclusive list of fair use factors.
• Rather, the fair use doctrine:
– “permits and requires courts to avoid
rigid application of the copyright
statute when, on occasion, it would
stifle the very creativity which that law
is designed to foster.”
• The fair use doctrine cannot be
"simplified with bright-line rules,"
and instead "calls for case-by-case
analysis.“
• The fair use copier must copy no
more than is reasonably necessary to
enable him or her to pursue an aim
that the law recognizes as proper
Eldred v. Ashcroft (US 2003)
• The “fair use” defense allows the
public to use not only facts and
ideas contained in a copyrighted
work, but also expression itself in
certain circumstances.
• Section 107 provides that “fair
use” doctrine protects against
copyright infringement for such
things as “criticism, comment,
news reporting, teaching
(including multiple copies for
classroom use), scholarship, or
research.”
• Fair use affords considerable
“latitude for scholarship and
comment,” and even for parody.
Campbell v. Acuff-Rose (US 1994)
Parody: A "literary or
artistic work that imitates
the characteristic style of
an author or a work for
comic effect or ridicule."
Campbell v. Acuff-Rose (US 1994)
Roy Orbison
2 Live Crew – Luther Campbell
Campbell v. Acuff-Rose (US 1994)
• 2 Live Crew was sued for copyright
infringement based on its parody of Roy
Orbison’s “Oh, Pretty Woman.”
• 2 Live Crew claimed that its song,
“Pretty Woman," was intended, "through
comical lyrics, to satirize the original
work . . . ."
• 2 Live Crew's manager informed AcuffRose that they:
– They had written a parody of "Oh, Pretty
Woman.”
– They would afford all credit for ownership
and authorship of the original song to
Acuff-Rose, Orbison and Dees (co-author).
– They were willing to pay a fee for the use
they wished to make of it.
Campbell v. Acuff-Rose (US 1994)
• Acuff-Rose's agent refused, stating:
– "I am aware of the success enjoyed by
'The 2 Live Crew', but I must inform
you that we cannot permit the use of a
parody of 'Oh, Pretty Woman.'"
• Nonetheless 2 Live Crew released
records, cassette tapes, and compact
discs of “Pretty Woman” in a
collection of songs entitled “As
Clean As They Wanna Be.”
• The albums and compact discs
identify the authors of “Pretty
Woman” as Orbison and Dees and
its publisher as Acuff-Rose.
Campbell v. Acuff-Rose (US 1994)
• Almost a year later, after nearly a
quarter million copies of the
recording had been sold, AcuffRose sued 2 Live Crew and its
record company, Luke Skyywalker
Records, for copyright
infringement.
• The Supreme Court held that the 2
Live Crew parody “may” be a
protected “fair use” within the
meaning of §107.
• The burden is on the purported “fair
user” to establish what otherwise
would be a copyright infringement.
Campbell v. Acuff-Rose (US 1994)
• First factor: “The purpose and
character of the use, including whether
such use is of a commercial nature or is
for nonprofit educational purposes.”
– parody has an obvious claim to
“transformative” value – adds something
new, with a further purpose of different
character, altering the first work with new
expression, meaning, or message.
– Like less ostensibly humorous forms of
criticism, it can provide social benefit, by
shedding light on an earlier work, and, in
the process, creating a new one.
• Parody is thus eligible to claim “fair
use” under § 107 even if the parody is
for commercial gain.
Campbell v. Acuff-Rose (US 1994)
• First factor (cont.):
– “If a parody whose wide dissemination in
the market runs the risk of serving as a
substitute for the original or licensed
derivatives, it is more incumbent on one
claiming fair use to establish the extent of
transformation and the parody's critical
relationship to the original.”
– “By contrast, when there is little or no
risk of market substitution, whether
because of the large extent of
transformation of the earlier work, the new
work's minimal distribution in the market,
the small extent to which it borrows from
an original, or other factors, taking parodic
aim at an original is a less critical factor in
the analysis, and looser forms of parody
may be found to be fair use, as may satire
with lesser justification for the borrowing
than would otherwise be required.”
Campbell v. Acuff-Rose (US 1994)
• Second factor: “The nature of the
copyrighted work.”
– Draws on Justice Story's expression,
the “value of the materials used.”
– Some works are closer to the “core”
of intended copyright protection than
others, and as a consequence, fair use
is more difficult to establish.
– Orbison’s original creative expression
“falls within the core of the
copyright’s protective purposes.”
– “This fact, however, is not much help
in this case . . . Since parodies almost
invariably copy publicly known,
expressive works.”
Campbell v. Acuff-Rose (US 1994)
• Third factor: “The amount and
substantiality of the portion used in
relation to the copyrighted work as
a whole.”
– In Justice Story's words, “the quantity
and value of the materials used.”
– Parody's humor/comment “necessarily
springs from recognizable allusion to
its object through distorted imitation.”
– “Its art lies in the tension between a
known original and its parodic twin.”
– “When parody takes aim at a
particular original work, the parody
must be able to ‘conjure up’ at least
enough of that original to make the
object of its critical wit recognizable.”
Campbell v. Acuff-Rose (US 1994)
• Third factor (cont.):
– “This is not, of course, to say that anyone
who calls himself a parodist can skim the
cream and get away scot free.”
– “In parody, as in news reporting context is
everything, and the question of fairness asks
what else the parodist did besides go to the
heart of the original.”
– “It is significant that 2 Live Crew not only
copied the first line of the original, but
thereafter departed markedly from the
Orbison lyrics for its own ends.”
– “Suffice it to say here that, as to the lyrics,
we think . . . that ‘no more was taken than
necessary,’ but just for that reason, we fail to
see how the copying can be excessive in
relation to its parodic purpose, even if the
portion taken is the original's ‘heart.’”
Campbell v. Acuff-Rose (US 1994)
• Fourth factor: “The effect of the use
upon the potential market for or value of
the copyrighted work.“
– Court must consider “not only the extent of
market harm caused by the particular actions
of the alleged infringer, but also ‘whether
unrestricted and widespread conduct of the
sort engaged in by the defendant . . . would
result in a substantially adverse impact on
the potential market’ for the original.”
– “Because ‘parody may quite legitimately
aim at garroting the original, destroying it
commercially as well as artistically,’ the role
of the courts is to distinguish between
‘biting criticism [that merely] suppresses
demand [and] copyright infringement
[,which] usurps it.’”
Digital Sampling
(fair use and de minimis infringement)
Newton v. Diamond (9th Cir. 2004)
The Beastie Boys
Newton v. Diamond (9th Cir. 2004)
• The appeal involved:
– “the difficult and important issue of
whether the incorporation of a short
segment of a musical recording into a new
musical recording, i.e., the practice of
“sampling,” requires a license to use both
the performance and the composition of the
original recording.”
• The “sample” – a 6 second, 3 note
segment from “Choir,” written and
recorded by jazz flutist James Newton.
• The “samplers” – Beastie Boys.
• Used in “Pass the Mic” – “looped” as a
background element throughout.
• License:
– Obtained a license to sample the “sound
recording” from ECM Records.
– No license from Newton to use the
underlying composition.
Newton v. Diamond (9th Cir. 2004)
• District court:
– No license was required because the notes
in question (C, D flat, C – over a held C)
“lacked sufficient originality” to merit
copyright protection.
– Alternatively, use of a brief segment was a
“de minimis” use of the composition and
thus not actionable.
• Ninth Circuit:
– “We affirm on the ground that the use was
de minimis.”
– The sampled segment was “simple,
minimal and insignificant” to the work as a
whole.
– “An average audience would not discern
Newton’s hand as a composer, apart from
his talent as a performer, from the Beastie
Boys’ use of the sample.”
Newton v. Diamond (9th Cir. 2004)
• Actionable infringement requires
“significant” or “substantial”
copying.
• “Trivial copying” not enough for
actionable infringement.
– Reflects the legal maxim de minimis
non curat lex (“the law does not
concern itself with trifles.”)
• Issue: Would an average audience
recognize the appropriation?
• If not, the use is “de minimis.”
Newton v. Diamond (9th Cir. 2004)
• The infringement focuses on the notes
Newton wrote in the score.
– Must “filter” the particulars of Newton’s
creative performance since licensed.
• “Fragmented literal similarity”
– A high degree of similarity/limited scope
of copying.
– Does the copying go to trivial or
“substantial” elements?
• “Substantiality”
– Measured by considering the qualitative
and quantitative significance of the copied
portion of the work relative to the work as
a whole.
– So much taken “that the value of the
original is sensibly diminished.”
– Importance to infringer’s work irrelevant.
Newton v. Diamond (9th Cir. 2004)
• No “reasonable juror could find
the sampled portion of the
composition to be a quantitatively
or qualitatively significant portion
of the composition as a whole.”
• “Quantitatively”
– The three-note sequence appears
only once in Newton’s composition.
– The segment lasts only 6 seconds
and is roughly two percent of the 41/2 minute recording,
• “Qualitatively”
– The section is no more significant
than any other section.
– Does not represent the “heart or the
hook” of the work.
Bridgeport Music (6th Cir. 2004)
N.W.A.
Bridgeport Music (6th Cir. 2004)
• Case involved the use of a sample from
the composition and sound recording
“Get Off Your Ass and Jam” by George
Clinton, Jr. and the Funkadelics.
• The sample was used in the rap song
“100 Miles and Runnin’” which was
included in the sound track of the
movie I Got the Hook Up (Hook Up).
• “Get off” opens with a 3 note
combination solo guitar riff that lasts 4
seconds.
• “100 Miles” contains a 2 second sample
from the guitar solo.
• The sample lowered the pitch and
“looped” the copied portion for 16
beats.
• The sample appeared in “100 Miles” in
five places for a total of 35 seconds.
Bridgeport Music (6th Cir. 2004)
• The analysis for determining
infringement of “a musical
composition copyright is not the
analysis that is to be applied to
determine infringement of a sound
recording.”
• The decision only addressed
sampling as relates to “sound
recording copyrights.”
Bridgeport Music (6th Cir. 2004)
• Advances in technology coupled with
the advent of the popularity of hip hop
or rap music have made instances of
digital sampling extremely common
and have spawned a plethora of
copyright disputes and litigation.
• The music industry, as well as the
courts, are best served if something
approximating a bright-line test can be
established.
• Not necessarily a "one size fits all" test,
but one that, at least, adds clarity to
what constitutes actionable
infringement with regard to the digital
sampling of copyrighted sound
recordings.
Bridgeport Music (6th Cir. 2004)
• Benefits of a “bright-line” test:
– Ease of enforcement: “Get a license
or do not sample.”
– The market will control the license
price “and keep it within bounds.”
– “Sampling” is never accidental.
• No “de minimis” taking of a
copyrighted sound recording:
– Under§ 114(b), the copyright owner
“has the exclusive right to ‘sample’
his own recording.”
– Even when a small part of the sound
recording is sampled, “the part taken
is something of value.
– A de minimis test would involve
“mental, musicological, and
technical gymnastics.”
Reverse Engineering
(Fair Use)
Sega v. Accolade (9th Cir. 1992)
• Accolade used a two-step process to
make its video games compatible with
Sega’s “Genesis” console:
– First, Accolade “reverse engineered”
Sega’s video game programs in order to
discover the requirements for compatibility
with Genesis. Accolade:
• Disassembled the object code in commercially
available copies of Sega’s game cartridges into
source code.
• Used the disassembled code to discover the
interface specifications.
• Created a manual that contained “functional
descriptions of the interface requirements and
did not include any of Sega’s code.”
– Second, Accolade created its own games
for Genesis.
• No copying of Sega code.
• Relied only on information in the manual.
Sega v. Accolade (9th Cir. 1992)
• The Issue: The case presented the
following “difficult question of first
impression”:
– “Whether the Copyright Act permits
persons who are neither copyright holders
or licensees to disassemble a copyrighted
computer program in order to gain an
understanding of the unprotected
functional elements of the program.”
• The Holding:
– “In light of the public policies underlying
the Act, we conclude that, when the person
seeking the understanding has a legitimate
reason for doing so and when no other
means of access to the unprotected
elements exists, such disassembly is as a
matter of law a fair use of the copyrighted
work.”
Sega v. Accolade (9th Cir. 1992)
• Preliminary Issues:
– Intermediate copying. The computer
file generated by the disassembly
program, the printouts of the
disassembled code, and the computer
files containing Accolade’s
modifications of the code all satisfy
the “copy” requirement (“fixed in
some tangible form”).
– Copyrightability of object code.
Although “some scholarly authority”
supports the view that object code is
not entitled to a “full range of
copyright protection,” this view
previously rejected by the 9th Circuit.
Sega v. Accolade (9th Cir. 1992)
• Fair use: First factor
– The fact that the copying was for a
commercial purpose weighs against fair
use; this is only a matter of degree, not an
absolute.
– The use was “an intermediate one only”
and any commercial exploitation was
“indirect and derivative.”
– Accolade’s purpose “was simply to study
the functional requirements for Genesis
compatibility so that it could modify
existing games and make them useable
with Genesis.”
– There was “no other method for studying
those requirements.”
– Accolade copied the code for a “legitimate,
essentially non-exploitive purpose,” and
“the commercial aspect of its use can best
be described as of minimal significance.”
– Public benefit – increase in number of
independently designed Genesis cartridges.
Sega v. Accolade (9th Cir. 1992)
• Fair use: Second factor
– Not all copyrighted works are entitled to
the same level of protection.
– Computer programs “pose unique
problems for the application of the
‘idea/expression distinction.’”
• “To the extent that there are many possible
ways of accomplishing a given task or fulfilling
a particular market demand, the programmer’s
choice of a program structure and design may
be highly creative and idiosyncratic.”
• Computer programs are, however “in essence,
utilitarian articles – articles that accomplish
tasks.”
• As such, “they contain many logical, structural,
and visual display elements that are dictated by
the function to be performed, by considerations
of efficiency, or by external factors such as
compatibility requirements and industry
demands.”
Sega v. Accolade (9th Cir. 1992)
• Fair use: Second factor (cont.)
– Because of the “hybrid nature of computer
programs, there is no settled standard for
identifying what is protected expression
and what is unprotected idea.”
Sega v. Accolade (9th Cir. 1992)
• Fair use: Third factor
– Accolade disassembled entire
programs written by Sega.
– This factor weighs against Accolade
but does not “preclude a finding of
fair use.”
– In fact, where “the ultimate (as
opposed to direct) use is as limited as
it was here, the factor is of limited
weight.”
Sega v. Accolade (9th Cir. 1992)
• Fair use: Fourth factor
– A use that effectively usurped the market
for the copyrighted work would preclude a
“fair use” finding.
– Not true of a use “which simply enables
the copier to enter the market.”
– Accolade did not attempt to “scoop” Sega’s
release of games, but sought only to
become a legitimate competitor in the field
of Genesis-compatible video games.
– Accolade’s market entry “undoubtedly
‘affected’ the market.”
– No basis for concluding the Accolade
games affected the market for Sega games
– “a consumer might easily purchase both.”
– Attempting to monopolize the market by
making it impossible for others to compete
“runs counter to the statutory purpose of
promoting creative expression.”
– Disassembly of the object code “was
necessary in order to understand the
Kelly v. Arriba Soft (9th Cir.)
Kelly v. Arriba Soft (9th Cir. 2003)
• The Plaintiff: Leslie Kelly, a professional
photographer who has copyrighted many
of his images of the American West.
• Brought suit for copyright infringement.
• The Defendant: Arriba Soft, now
Ditto.com, operated an Internet search
engine that displayed results in the form of
low resolution “thumbnails” of pictures
obtained by web crawlers.
• Once the thumbnails were created, the
full-sized originals were deleted from
Arriba’s servers.
• Although users could copy thumbnails, the
resolution of the thumbnails could not be
increased; enlargement resulted in a loss
of clarity.
Kelly v. Arriba Soft (9th Cir. 2003)
• Between January and June 1999:
– Clicking on the thumbnail produced an
"Images Attributes" page, which used in-line
linking to import the original full-sized picture
and incorporate the image in a page with text
describing the size of the image, a link to the
original web site, the Arriba banner, and
Arriba advertising.
• From July 1999 to August 2000:
– The results page contained thumbnails
accompanied by two links: “Source” and
"Details”
• The "Details" link produced a screen similar to the
Images Attributes page but with a thumbnail rather
than the full-sized image.
• Clicking the "Source" link or the thumbnail resulted
in two new windows on top of the Arriba page,
include a page that contained the full-sized image.
• After August 2000:
– Clicking on the thumbnail results in a window
of the home page of the image appearing on
top of the Arriba page. There is no window
just containing the image.
Kelly v. Arriba Soft (9th Cir.)
Kelly v. Arriba Soft (9th Cir. 2003)
• Arriba conceded that Kelly had
established a prima facie case of
infringement of his “reproduction”
rights.
• The only issue on appeal was
whether Arriba’s display of the
“thumbnails” was a protected “fair
use.”
Kelly v. Arriba Soft (9th Cir. 2003)
1. “Purpose and character of the use”:
is the use for “commercial purposes”
– Although commercial, the use of Kelly’s
images “was more incidental and less
exploitative in nature than more
traditional types of commercial use.”
– “Arriba was neither using Kelly's images
to directly promote its web site nor
trying to profit by selling Kelly's images.”
– “Kelly's images were among thousands
of images in Arriba's search engine database.”
– “Because the use of Kelly's images was
not highly exploitative, the commercial
nature of the use weighs only slightly
against a finding of fair use.”
Kelly v. Arriba Soft (9th Cir. 2003)
1. “Purpose and character of the use”:
is the use “transformative”
– “Although Arriba made exact replications of
Kelly's images, the thumbnails were much
smaller, lower-resolution images that served
an entirely different function than Kelly's
original images.”
– “Kelly's images are artistic works intended to
inform and to engage the viewer in an
aesthetic experience.”
– Arriba's use of Kelly's images is “unrelated to
any aesthetic purpose” but rather serves “as a
tool to help index and improve access to
images on the internet and their related web
sites.”
– Users “are unlikely to enlarge the thumbnails
and use them for artistic purposes because
they are of much lower-resolution than the
originals” and lose clarity when enlarged
making them inappropriate for display.
Kelly v. Arriba Soft (9th Cir. 2003)
2. Nature of the copyrighted work:
– “Works that are creative in nature are
closer to the core of intended copyright
protection than are more fact-based
works.”
– Photographs like Kelly's are generally
“creative” in nature.
– Published works like Kelly's are more
likely to qualify as fair use because the
first appearance of the artist's
expression has already occurred.
• Considering both of these elements,
the Court found that this factor
weighs only slightly in favor of Kelly.
Kelly v. Arriba Soft (9th Cir. 2003)
3. Amount and substantiality of portion
used:
– “While wholesale copying does not preclude
fair use per se, copying an entire work
militates against a finding of fair use.”
– “The extent of permissible copying varies with
the purpose and character of the use.”
– “If the secondary user only copies as much as
is necessary for his or her intended use, then
this factor will not weigh against him or her.”
• “This factor neither weighs for nor
against either party”
– Arriba needed to copy the entire image so that
users could recognize it and decide whether to
pursue more information about the image or
the originating web site.
Kelly v. Arriba Soft (9th Cir. 2003)
4. Effect of the use upon the potential
market for or value of the
copyrighted work:
– “A transformative work is less likely to have
an adverse impact on the market of the
original than a work that merely supersedes
the copyrighted work.”
– Arriba's thumbnails do not “harm the market
for Kelly's images or the value of his images.”
– Arriba’s thumbnails “guide users to Kelly's
web site rather than away from it.”
– The thumbnails do not “substitute for the fullsized images” because they lose their clarity
when enlarged.
• Because “Arriba's creation and use of the
thumbnails does not harm the market for
or value of Kelly's images,” this “factor
weighs in favor of Arriba.”
Kelly v. Arriba Soft (9th Cir. 2003)
• Arriba’s “creation and use of the
thumbnails in the search engine is a fair
use.”
• “Arriba's use of Kelly's images promotes
the goals of the Copyright Act and the fair
use exception.”
• “The thumbnails do not stifle artistic
creativity because they are not used for
illustrative or artistic purposes and
therefore do not supplant the need for the
originals.”
• “In addition, they benefit the public by
enhancing information-gathering
techniques on the internet.”
• The 9th Circuit remanded for a
determination of whether Arriba’s display
of full size images (pre-September 2000)
was a “fair use.”
Perfect 10 v. Google (C.D. Cal.)
• Perfect 10 operates “adult” website.
• Sued Google for copyright infringement
based on “thumbnails” displayed on
Google Image Search.
• District court granted Perfect 10 injunction
in February 2006.
• No fair use since Google thumbnails
compete commercially with Perfect 10 cell
phone image business.
• Amazon’s A9.com search to be addressed
in separate order.
Google Print
McGraw Hill, et. al. v. Google
• Copyright infringement lawsuit filed in
Manhattan by a number of publishers,
including McGraw Hill and Penguin
Publishers.
• The Authors Guild raised similar concerns
in a separate complaint it filed against
Google in September.
• The Complaint alleges that the Copyright
Act "squarely put[s] the burden on
Google" to obtain permission to copy the
books, and not on the publisher to tell
Google which particular titles ought not to
be copied.
• The Complaint alleges that a copyright
owner is under no duty to self-identify
which among its works it does not want
infringed.
McGraw Hill, et. al. v. Google
• "Both the Google Library Project and
Google's pronouncement that publishers
must provide to Google detailed lists of
books that they wish to be excluded are
contrary to the black letter requirements of
the Copyright Act.“
• The publishers advised Google before the
Complaint was filed that none of their
works should be copied, and that it was
incumbent on Google to search the
libraries' bibliographic records to identify
the pertinent titles to be excluded.
• In response to complaints, Google
suspended work on the project to give
publishers a few months to identify
specific titles in the libraries' collections
that should not be scanned. The deadline
to submit those lists is Nov. 1.
McGraw Hill, et. al. v. Google
• The publishers claim that Google is
attempting to harness their copyrighted
works as a draw for more users to visit the
search engine.
• They argue that the ultimate goal is to
generate more ad revenue from sponsored
links keyed to search terms.
• The publishers fear that Google's program
is "likely to usurp [their] present and
future business opportunities" for
exploiting the works digitally.
• Unlike the thumbnail images at issue in
Kelly v. Arriba Soft, Google is only
displaying a small portion of the work not
the entire work.
• Fair use? We will see.