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 2015
© 2015 MICHAEL I. SHAMOS
Policy Goal of Copyright
• 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
• Fair use
LAW OF COMPUTER TECHNOLOGY
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© 2015 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
– 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
• 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: 6.20 pence per loan,
up to a maximum of £6,600 per work
• Pool of about £6.8M. About 22,000 authors received
payments for 2013. 200 received £6,600
• Fewer books are being checked out!
• No payment for in-library use
• Who benefits? J.K. Rowling (Harry Potter)
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 2015
© 2015 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
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© 2015 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
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© 2015 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
LAW OF COMPUTER TECHNOLOGY
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© 2015 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 derivative works is usually not fair.)
LAW OF COMPUTER TECHNOLOGY
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© 2015 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
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© 2015 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
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© 2015 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
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© 2015 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
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© 2015 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.
– Not a fair use
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.
– Fair use
• Downloading music allegedly to decide whether to
buy a copy
– Not a fair use
LAW OF COMPUTER TECHNOLOGY
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© 2015 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
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© 2015 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 “librarybuilding” (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
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© 2015 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.
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© 2015 MICHAEL I. SHAMOS
Sony v. Connectix
• On appeal, the 9th Circuit held that copying for
purposes of reverse engineering, to make a noninfringing 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
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© 2015 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?
– Exactly why or why not?
• Is it copyright infringement to put a copy of someone
else’s web page on your website?
– Exactly why or why not?
• Is it copyright infringement to put portions of
someone else’s web page (e.g., images) on your
website?
– Exactly why or why not?
LAW OF COMPUTER TECHNOLOGY
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© 2015 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
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© 2015 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
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© 2015 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 2015
© 2015 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
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© 2015 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 2015
© 2015 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 2015
© 2015 MICHAEL I. SHAMOS
Search terms
Paid Ads
Copyrighted
book (Springer)
Snippet
Search hits
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
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© 2015 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.”
• “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
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© 2015 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 2015
© 2015 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 2015
© 2015 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 timeshifting for personal use is fair
LAW OF COMPUTER TECHNOLOGY
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© 2015 MICHAEL I. SHAMOS
Q&A
LAW OF COMPUTER TECHNOLOGY
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© 2015 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
Musical
Group
Theatre
Owner
Public Audience
SOURCE: WILLIAM FISHER
Copyright
Owner
Manager
Musical
Group
Theatre
Owner
Public Audience
SOURCE: WILLIAM FISHER
Copyright
Owner
Direct
Infringement
Manager
Musical
Group
Theatre
Owner
Public Audience
SOURCE: WILLIAM FISHER
Copyright
Owner
Contributory
Infringement
Direct
Infringement
Manager
Knows of direct
infringement by another
and induces, materially
aids or contributes to the
infringement, as by
supplying essential tools
Musical
Group
Theatre
Owner
Public Audience
SOURCE: WILLIAM FISHER
Copyright
Owner
Vicarious
Liability
Contributory
Infringement
Direct
Infringement
Manager
Knows of direct
infringement by another
and induces, materially
aids or contributes to the
infringement, as by
supplying essential tools
Musical
Group
Theatre
Owner
Is in a position to
control the direct
infringer and benefits
financially from the
infringement
Public Audience
SOURCE: WILLIAM FISHER
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
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© 2015 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 2015
© 2015 MICHAEL I. SHAMOS