COPYCENSE

A recent thread on the listserv Liblicense prompted some observations about the utility of fair use in an environment where contracts increasingly govern the legal relationships between creators, copyright owners, and customers.

Since the issues are so important in today’s information environment, and since Copycense readers may not subscribe to the Liblicense listserv, I have decided to repost my comments.

Last week, I posted the first part of my listserv response; this week I post the second part. This post examines — and hopefully resolves — a common fallacy that fair use is a right. The title of the thread is “Fair use / fair dealing – a fantasy?” A complete listing of all the comments in the thread is available from the Liblicense archives.

“2. Fair use

“As for the sole issue of fair use, all the commentators I’ve read or spoken to — David Nimmer, Bill Patry, and Jessica Litman among them — conclude that fair use under Section 107 is an affirmative defense to copyright infringement. Fair use is not a right.

“In a typical copyright infringement lawsuit, a copyright owner needs to prove (and plead) the following:

– The owner owns the copyright;

– Defendant violated one or more of the copyright owner’s exclusive rights (Sections 106, 106A); and

– Defendant has no defense or excuse (limitation of exclusive rights) in Sections 107-122.

“In order to clarify this issue for myself, I posed the following hypothetical to Patry earlier this month because I wanted to make sure I had taught my class correctly (especially pursuant to Federal Rules of Civil Procedure 8 and 11). (Please forgive misspellings from both of us.)

Let’s say that Party A (copyright owner) files an infringement lawsuit against Party B, and A sues B to stop B’s acts of reproducing and publicly displaying A’s content. B is going to claim fair use as a defense. For procedural purposes, does B have to claim the fair use defense against both of A’s claims the reproduction and public display claim, or does the fair use defense serves as a defense to both of A’s exclusive right claims?

In other words, is it procedurally possible that B could claim a fair use defense on the reproduction claim and win, but claim a fair use defense on the public display claim and lose?

Does the answer change depending upon how A pleads its complaint?

Any clarification (or source referral) is appreciated.

“Patry’s response follows:

… Most complaints that I have seen have different counts for violation of the reproduction and display right, but as an affirmative defense, fair use is pled generally — that is not on a count by count basis. Depending on the facts, it is possible for fair uise to apply on one but not the other …

“In a 2005 blog post, Patry cites Harper Row v. Nation, 471 U.S. 539 (1985), as authority for the premise that fair use is an affirmative defense, and not a right.

“So here’s the practical problem with fair use being an affirmative defense. Since fair use is an affirmative defense, any party seeking to use fair use as an affirmative defense has to plead that pursuant to FRCP 8(c) in response to a plaintiff’s complaint. This necessarily means that if you are that party, you are under the jurisdiction of federal court as party to an infringement lawsuit.

“I presume that most of us … would rather not be a defendant in a copyright infringement lawsuit, even for the purpose of pleading a fair use defense pursuant to FRCP 8(c). To close the loop, this gets us back to the initial question posed by this thread: is fair use a fantasy?

“If fair use is rendered irrelevant by contract, and can be used only as a pled defense within the scope of a copyright infringement lawsuit (and we don’t want to be in a lawsuit to begin with), then what utility does it have?

“I teach my class to use fair use (and the other information professional exceptions codified in Sections 110, 109, and 108) as a form of business risk analysis to decide the extent to which they may use, access, or invoke one or more of the owner’s Section 106 rights without paying a fee and without asking permission.

“But as a statute applied within a digital information environment governed by contracts, I’d conclude that fair use provides little legal protection for readers, users, or information professionals. I believe the explicit preservation of fair use rights within the digital/contractual environment is is an issue worth lobbying for.

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