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Page 5 of 6
Analyses
A comprehensive look at fair use is outside the scope of this Article.
However, a brief overview is necessary to punctuate why fair use is a necessarily unpredictable defense that is inconsistent with the knowing material misrepresentation standard of § 512(f).
Fair use originated as a common law doctrine developed by judges “to perform the vital constitutional goal of ensuring that the balance between encouraging authors to create through the grant of a limited monopoly and the need to permit reasonable, unconsented-to and uncompensated uses by second authors and the public is not upset by overbroad assertion of rights.”
In other words, the doctrine protects uses that are “of a character that serves the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity.” Determining which uses are of such a character requires a fact specific “case-by-case determination.”
The fair use doctrine remained absent from the Copyright Act until 1978, when the Copyright Act of 1976 became effective. Although Congress included a fair use provision in the 1976 Copyright Act, the legislative history indicates that Congress did not intend to alter the common law doctrine or to freeze it in time.
Instead, Congress intended to recognize the legitimacy of the doctrine while also preserving the flexibility of the common law artifice.
Section 107 of 17 U.S.C.
consists of a preamble that lists exemplary categories of fair uses, four non-exhaustive factors (taken from case law) for judges to consider, and a final sentence clarifying that fair use may be made of both published and unpublished works:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 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.The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
What is lacking in § 107, and in the common law development of fair use as well, are bright line rules.
Despite repeated attempts by lower courts to read rigid rules into the fair use doctrine,
the United States Supreme Court has resisted this temptation.
In fact, the Court's most recent articulation of the fair use doctrine is devoted, in large part, to ridding the field of such rules.
Thus, judges are left with their general understanding of the purpose of fair use, the four statutory factors, inevitably distinguishable precedents, and their own gut instincts to assist them in their fair use analyses. While the four factors provide helpful starting points, their treatment by various appellate circuits, and even by district courts and appellate panels within circuits, has been inconsistent.
This inconsistent treatment leads to frequent appellate reversals of district court decisions
and to dissenting and concurring opinions on the issue, even at the Supreme Court level.
Although the doctrine's lack of rules leads to its unpredictable nature, which some commentators wish to remedy,
it also creates a malleable fair use standard which can be applied in various contexts over time without requiring statutory revisions to accommodate each and every technological, cultural, and creative development.
This flexibility makes the doctrine a more effective judicial tool that need not remain one step behind the changing times.
Nevertheless, the doctrine's flexibility and lack of rules can make it difficult to counsel clients as to whether a particular use of copyrighted material is fair.
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And recently, the Register of Copyrights, Marybeth Peters, cautioned against listening to those who claim to know what fair use is before asking a court whether it agrees.
The wisdom of the Register's warning can be seen when reviewing articles written by judges on the subject. Judges often feel inspired to publish their personal views on fair use, and despite their efforts to seek consensus amongst their peers on the issue, other judges inevitably publish subsequent works proposing very different approaches.
All of this adds up to a doctrine that is wholly inconsistent with the phrase “self evident” and inconsistent with making knowing material misrepresentations regarding whether a use is fair. If judges, treatise writers, and the Register of Copyrights cannot comfortably predict the outcome of fair use cases, how can we hold a copyright owner liable for asserting in a takedown notice that something is infringing when a potentially successful fair use argument exists? Moreover, how can we hold a user of copyrighted material who sends a putback notice liable for seeking the replacement of material that the user mistakenly believes to be fair?
The simple answer to both questions is that, under the statute, we cannot. As the Rossi court held, in order to violate § 512(f), a copyright owner must have “actual knowledge” that a use targeted by a takedown notice is noninfringing.
Conversely, an Internet user who requests a putback must have “actual knowledge” that the use is infringing in order to violate § 512(f).
It is impossible for a copyright owner or an Internet user to possess such knowledge with regard to an alleged fair use because every fair use case presents different facts at different times, which can result in different legal outcomes, no matter how slight the factual or temporal differences, even for uses that, on the surface, appear to be analogous or even identical.
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