Engelberg Center Live!

Proving IP 2019: Keynote - Fair Use: A Ramble Through the Bramble

Episode Summary

Judge Pierre Leval, U.S. Court of Appeals for the Second Circuit delivers his keynote address.

Episode Notes

Full video is available on YouTube.

Episode Transcription

- All right we are going to roll quickly into the next part of the program without a break there'll be a break after this. But I am very excited for the next part of the program because we have our keynote for today from Judge Leval who is here? Yes, great. Judge Leval probably needs no introduction in this room or at many of the rooms actually he speaks in but it is my opportunity to give it anyway. Judge Leval is a judge on the US Court of Appeals for the Second Circuit. Prior to that he was a district court judge in the Southern District of New York. And probably one of the main reasons he is here is because he is the author of the highly influential, I think it's hard to underestimate the influence, towards a fair use standard article that argued about the importance of transformativeness in fair use. He also was the author of the landmark Authors' Guild versus Google, Google Books opinion. Closer to home for NYU, he has been adjunct faculty here at NYU, and is a member of the Engelberg Center advisory board. His keynote today is titled, "Fair Use: A Ramble Through the Bramble," And so please join me in welcoming Judge Leval.


- Thank you. It's a huge honor to have been invited to join the extraordinary advisory board of the Engelberg Center, and all the more so to be invited to talk to you at this symposium. It's also something of an emotional booster to be back in this room because this is the room where 30 years ago I gave the Brace lecture which became a law review article on fair use standards. When I was a young judge in the district court, some 30, 40 years ago, having come to the bench like most judges without even the tiny experience or knowledge of copyright, the random spin of the wheel of case assignments in the clerks' office sent me a statistically unbelievable succession of fascinating fair use cases. J.D. Salinger, L. Ron Hubbard, Igor Stravinski, photocopying by Texaco geologists for scientific research. I groped for explanations of the doctrine and understanding of it. My first two rulings were dismissively rejected by the Court of Appeals, and I consoled myself that it was exhilarating to be at the cutting edge of the law even in the role of the salami. I will talk today about a few areas of fair use inquiry where I think the precedential body of law could use some sharpening of focus. I begin with the statute itself, section 107, its very existence and significance. The most important lesson I think with respect to section 107, is that we shouldn't read too much into it. I'm not suggesting any disrespect for Congress. I'm not saying that judges should substitute their judgment for Congress's judgment. My intention is rather to fulfill the intention of Congress. Congress made clear in the report that it did not intend to dictate law or policy, but simply rather to see to it that such an important judge-made doctrine should be reflected in the statute itself where anyone can find it. So Congress in the specifics of the words was not dictating law or policy, but was rather making a deferential attempt to summarize a common law doctrine adhering closely to Justice Story's 1841 economical description in Folsom v. Marsh. It leaves the future development of the common law to the common law engine that created it. Judges often look at the statute and scratch their heads and say to themselves, "What did Congress want me to do with this case?" And the answer for them should be, Congress wanted you to continue the judicial common law development of the doctrine as if section 107 had simply never been passed. Now the statute lists four factors to be considered in the analysis. And it's generally recognized that the first and the fourth are the most important. The third is merely an aid to the application of both the first and the fourth, and about the second I will say a few more words later. I begin now with the first, which is perhaps the most challenging and perhaps the least well understood. It's wording is significantly unhelpful. It's building on Justice Story's also-obscure reference to the objects of the selections made, the statute says to look at the purpose and character of the copying work, but it gives no clue what sorts of purpose or character are favored. And I think our understanding of the law and of the role of the first factor could be improved by greater attention to a word that reoccurs in some key precedential markers. And the word I have in mind is justification. The first factor essentially asks, given the objectives of copyright is there arguable justification for this copying of the plaintiff's work? Justice Story summarized by saying, "The question is then, "whether this is justifiable use of the original materials, "such as the law recognizes as no infringement "of the copyright." The word also received significant play when the Supreme Court undertook in Campbell, to lay out the gist of fair use analysis. With reference to a hypothetical act of copying that claims fair use while offering no commentary or illumination of any sort about the original, but instead simply helps to communicate the secondary author's independent message on some other subject, Campbell raised the question of the justification for the very act of borrowing. I suggest it would be helpful to courts' understanding of factor one's reference to purpose or character of the use, as essentially asking the question, given the purposes of copyright, is this the sort of copying that has arguable justification? Now what do we mean by justification? What sort of justification? Justification in relation to the overriding justification of copyright itself, which is public edification. What value does the copying bring to edification, of course not including the value that is inherent in the original? I'm not suggesting that the copy necessarily needs to be publicly distributed, I think it can serve the benefit of edification if it edifies the person who makes the copy, such as for example, by making a digitized copy of the document for the purpose of discovering how many words per sentence it has, or any other of the sort of research functions that can be found by making such a copy. I think such justification should be recorded, regarded as a minimum threshold requirement, an entry ticket. I think that factor one should be seen as an essential element of fair use. This essential element of course can be defeated by harm to the copyright under the fourth factor. But without a justifiable copying objective that can satisfy factor one, the court will not have adequate reason to find fair use, even in the absence of fourth factor harm. Of course if there's neither justification for the copying, nor fourth factor harm, the copying might conceivably escape liability under the de minimis doctrine, but that's a completely different proposition. It's not fair use. The Supreme Court suggested in Campbell that transformative uses favor a finding of fair use. Why transformative? Because of the likelihood of substitution, and the difficulty of finding justification where the copying is done for the same communicative purpose as intended by the original. The word transformative is important and helpful but it's at best an imprecise directional indicator for subtle and complex inquiry, where prior to Campbell the body of our precedent furnished little guidance as to what purpose or character was favored. Prior to Campbell, courts largely ruled instinctively from the gut without expressing any guiding standards at all. The word transformative does not purport to give clear boundaries. In the Campbell passage that I mentioned a moment ago that invoked justification, the Supreme Court gave further guidance on the circumstances where copying should be deemed transformative so as to pass this justification threshold. I think that guidance has been underappreciated. Speaking of the difference between parody and satire, Campbell explained roughly as follows. Parody quotes from the original in a mocking or critical way for the purpose of making a commentary on the original. Parody requires quotation to make critical points about the original. The commentary about the original is the justification for quoting it. In contrast, what Justice Souter referred to as satire, is taking from the original to make the copier's independent point, which is not about the original. Such an appropriation piggybacks on the fame or the felicitous expression of the original to give punch, or humor, style, or persuasiveness to the taker's message. The Supreme Court doubted the justification for such appropriation. The Campbell court put those observations in terms of parody versus satire because in that case the defendant was claiming the well-established protective mantle of parody as a fair use. But the importance of the observation goes far beyond the difference between parody and satire. It addresses a common form of copying that is neither parodic nor satirical where one simply piggybacks on a famous song, or poem, passage, or logo, playing on public recognition of the original to give punch or humor to a new, unrelated message. Aware that copying is essentially either to harness the expressive brilliance of the original for the delivery of the copier's message, or to gain an audience impact for the new message by freeriding on the fame of the original expression, courts should ponder whether such changes can qualify as transformative, whether they have arguable justification for copying. It's difficult to see why the original author should not be entitled to a fee for licensing such a utilization of her work. My next port of call is factor two. The nature of the original. I believe this factor has not been correctly understood. I believe that case law has at times given it a misleading meaning and at times has simply failed to recognize the proper role it regularly plays in a fair use exploration. A number of courts, groping for a way to find significance in the underappreciated second factor, have treated Justice O'Connor's commentary in "The Nation" on the importance of factual works, as supporting a conclusion that if the original work is factual that is a factor supporting a conclusion of fair use. Whereas the fictional, artistic, or fantasy nature of the original would be a factor disfavoring fair use. First of all the "Nation" opinion didn't say that, and furthermore the proposition simply makes no sense. Whether the use made by the copier is fair use does not depend at all on whether the original was a work of fact or fantasy, it depends on the character and purpose of the use made, the justification for copying, in combination with the potential for harm to the value of the original that results from substitution. If one copies a factual work's expression without transformative justification, that should be an infringement, just as when one copies the expression of a fictional work without transformative justification. Consider for example, suppose that physics professor B, copies professor A's treatise on physics, where B has copied A's expression for the purpose of explaining the laws of physics to students. Factual? Yes. Transformative? No. The purpose of B's copying was the same as the purpose of A's original, is it justifiable, no. B's copy offers a substitute for A's treatise, in Story's words, it supersedes. By the same token, copying from a fictional work, or an artistic work, if done for the purpose of analyzing its artistic successes or failures, should qualify to win factor one as a transformative justification. Whether the original work was fact or fantasy is a useless distraction from what matters, and it should have no role in answering whether the copy is a fair use. Now not withstanding attribution of some erroneous significance to the second factor, most court decisions have found that the second factor contributed nothing of significance to their decisions. The heavy emphasis given by courts to factor one, coupled with the very small significance given by courts to factor two, has led some observers to complain that courts are dissing the statute and substituting their judgment for the judgment of Congress. I believe that is incorrect, it is incorrect that courts are giving no importance to factor two even when they say they are giving no importance to factor two. I believe this is simply a matter of confusion as to the proper box in which to place certain observations. Since the Campbell decision, virtually every single court decision on the claim of fair use has considered whether the defendant's use of the original is transformative. That inquiry is inherently comparative. While courts place this issue in their discussion of factor one, consideration of whether the copying is transformative inevitably involves a comparison of the nature and purpose of the original with the nature, character, and purpose of the copying work. Consideration of transformativeness necessarily gives attention to the nature and communicative purposes of the original by comparing it to the character and purpose of the copying work. Courts have neither ignored nor undervalued the statute's instruction to consider and weigh the nature of the original. They have merely failed to recognize that they were doing what factor two requires as well as what factor one requires when they've considered transformativeness. I come now to what is surely the most important thing that I have to say, to the most dangerous and distorting trend, in my view, in fair use analysis. A misconception that can cause seriously erroneous results, as well as imposing needless, onerous burdens on everyone. I refer to the Supreme Court's ill-conceived proposition in "The Nation" that fair use presupposes good faith and fair dealing. This idea emerged in part from a historically inaccurate perception that fair use is an equitable rule of reason, which I think when uttered by courts was intended to mean only that the standards of fair use were vague. Courts may have also been misled by the presence in the title of the word, fair, which has an apparent association with the notion of fair and equitable conduct. But today's name, fair use, emerged from an earlier form, fair abridgment, which more clearly referred to the appropriateness of the manner of abridgment, that is, it should show invention and should not supersede, otherwise put, not substitute, for the original. Bill Patry's exhaustive and impressive treatise on fair use explains furthermore that as copyright plaintiffs' demands for damages were heard in law courts, and their demand for injunctions were heard in equity, the litigation of a particular dispute went back and forth, proceedings in the law courts, proceedings in the equity courts. The defense now known as fair use was as much a defense in a suit for damages as for an injunction. And when a plaintiff sought only damages, the equity court had no participation whatsoever. Fair use was no more, according to the history that I've looked at, no more a defense in equity than it was a defense in law. Nor do the foundational documents support a requirement of good faith. Justice Story did not acknowledge such a requirement, although observing that good faith is not a bar to liability. Good faith is of course not even mentioned in section 107's enumeration of relevant factors. More importantly, the proposition simply misconceives and disserves not only the nature of the fair use defense, but also the very nature and justification of copyright itself. Copyright is a property right. It entitles the owner to bar others from certain types of copying of the work. Why, and to what end? Because incentivizing authors to create and publish serves the overriding goal of public enlightenment. Fair use serves public enlightenment. This exclusive property right of authors is not an absolute right. It has definitional boundaries, and the justification for those boundaries does not change regardless of whether the copier acted inequitably. The right ends where it's exercise would harm, rather than advance, copyright's overall goal of enlightenment. For this reason the copyright has three major confining boundaries. The copyright in the work does not bar others from copying facts. It does not bar others from copying ideas. And it doesn't bar copying that satisfies the more complex definition of fair use. All three boundaries derive from copyright's overriding objective to serve what our 18th century Constitution described as, "the progress of science." The collective wisdom of the common law had determined over time that it would be seriously detrimental to the progress of science to allow owners of copyrights to exert exclusive control over the copying of facts, the copying of ideas, and copying that serves fair uses. In the words of Lord Ellenborough, "One must not put manacles on science." When a work of authorship is quoted to communicate a fact, or idea, or a fair use, the author of the original has not lost any part of her copyright entitlement. She never owned a right to bar such a copying. I think Pam Samuelson made something like the same point earlier in speaking of Lydia Loren's article, saying that copyright doesn't cover fair use. In the words of section 107 a fair use is not an infringement of the copyright. No one would seriously contend that the entitlement of the public edification to publish facts and ideas taken from a copyrighted text should depend on whether the copier acted in good faith. There's no reason why the issue should be viewed any different when the original author seeks to suppress the publication of a fair use. For all these questions, whether the copier observed fair dealing is completely irrelevant to the public interest in the dissemination of knowledge. The harm and loss that this doctrine from "The Nation" causes can be very great. Now consider the case of a journalist who discovers and exposes that the writings of a prominent public figure, perhaps a holder of high public office or a religious leader, exhibits lies, distortions, cruelties, bigotries. To gain access to revelatory documents journalists and commentators frequently must conceal their intention to criticize. They pose as a Boswell on a mission to sing the praises of Dr. Johnson. Are the objectives of copyright served by allowing the author of the lies and bigotries to prevent the principal intended beneficiary of copyright, the public, from learning of the lies on the ground that the agent of their disclosure concealed his purpose? A few examples, I mean an example I think of, is Michael Wolff's recent book about the White House, should it have been subject to injunction because he pretended his writing would be idolatrous? A quoter who is deceived about his intentions to criticize may of course be conceivably liable for various torts, perhaps for fraud, perhaps for conversion, trespass, but that does not justify depriving the public of the educational benefit of access to a revelatory quotation that passes the legitimate fair use criteria. In short it's easy to be against bad faith, but the law governing copyright in this regard should not differ from other forms of property laws, such as real and personal property. Consider for example, suppose a defendant charged with trespass and they acted in bad faith, secretly fishing in a neighboring stream when both the plaintiff and the defendant believe that that stream was owned by the plaintiff. The defendant's bad faith in fishing there doesn't render him a trespasser when it turns out that the plaintiff didn't own the stream at all. Because the copier who brings fair use to the public does not impinge on any right of the original author, the copier's good or bad faith should be completely irrelevant. Now it's not just that imposition of a good faith requirement undermines the principal justifying objectives of copyright, and causes bad results, and imports undesirable unpredictability, it's worse than that. The introduction of this irrelevancy also inflicts unjustifiable burdens on all persons concerned. If good faith is a prerequisite to fair use, everybody turns out to be the loser. Why is this so? Well while there are without question some difficult cases, perhaps many difficult cases, in most instances it's not really very difficult to make an informed judgment whether copying should qualify as a fair use, simply from comparing the two documents. When a publisher considers publishing a biographical manuscript presented, which includes quoting from the subject's writings, the putative publisher will usually be able, in consultation with the attorney, to make a confident prediction whether the quoting qualifies for the protection as fair use simply by comparing the two texts. On the other hand, if good faith is a prerequisite to fair use, the publisher is gonna be at sea without a chart or a compass. She can ask her quoting author, "Did you or anyone you depended on deceive anyone, "conceal investigative intentions, "abuse anyone's trust, use any dirty tricks "to get access to your materials? "Is this a vengeance for a grudge? "Are you cheating in some way?" But assuming that the author insists on irreproachable probity, what does the publisher do next? Hire detectives to investigate the author's conduct? All of this introduces needless mistrust, expense, delay, and risk, and it will often cause publishers to decline to take the risk of publishing a valuable work, lest it turn out that the secondary author deceptively sweet-talked some gatekeeper into giving access to the materials. The same problem, exactly the same problem, burdens courts and the parties in litigation. If the law of fair use is properly understood, the court can rule relatively cheaply and expeditiously on a fair use defense. It can often be resolved, at least on a motion for summary judgment, but very frequently as well even on a motion to dismiss under 12 on the basis of the complaint by simply comparing the two documents. But if good faith is a prerequisite, wasteful, expensive discovery will be required, jury trials with huge attendant expense and years of delay will be required for cases that could have been resolved in a few weeks on a motion to dismiss. In a low-profit industry, publishers will be increasingly unwilling to incur the expense of publishing books that quote and everyone will be the loser. So I recognize that it's difficult to eliminate from the law a proposition that the Supreme Court has endorsed, but the Supreme Court reconsidered "The Nation"'s dictum 10 years later in Campbell. Now given that the justice who wrote "The Nation" and three others who joined remained on the court, the Campbell court went about as far as it could go to repudiate the proposition without risking to alienate those votes. The text of the Campbell opinion lays out a blueprint of how courts should analyze fair use. Nowhere in that blueprint does it mention bad faith. If the Campbell court believed, as was stated in "The Nation", that fair use presupposes good faith and fair dealing, surely that would have been included in this blueprint analysis of how to appraise a fair use defense. Instead, in footnote 18, the Campbell court characterized the pertinence of good faith as an open question because of disagreement between what the Supreme Court said, and a law review article. Really? Criticism of a Supreme Court decision in a law review article is usually not viewed as leaving an open question. It appears that the Campbell court was tactfully backing away from its prior utterance. The footnote goes on to say that the result of the Campbell case would not change, and I quote, "even if good faith were central to the fair use analysis." The use of the subjunctive in the phrase, "even if it were", is very telling. The subjunctive is used to designate a condition that is contrary to the fact. As I remember learning on the first day of law school I think, it's not an assault to say, "Were it not assizes' time I would give thee a thrashing." The inference is strongly suggested by the Campbell discussion that the court deemed the "Nation" dictum a mistake, but the requirements of tact prevented outright repudiation. So where does that leave us? I submit that "The Nation"'s assertion of the relevance of good faith to fair use is so harmful, so distorting, so contrary to the fundamental principles of copyright, that every scholar in the field should seize on every possible opportunity to try eventually to secure its eventual repudiation by the Supreme Court. I thank you.


- [Moderator] Thank you so much. If you are willing we'd love to open the floor to a couple of follow-up questions.


- As long as they're not hard questions.


- [Moderator] Does anyone have any easy questions they want answered? Please come to the mics and we'll just switch off.


- [Questioner] Good afternoon Judge Leval. I've been dealing with a lot of copyright cases from copyright trolls lately.


- From what?


- [Questioner] Copyright trolls? So there are 100s and 100s of cases that have been filed, I'm sure you're aware, seeking large damages, it's basically become legal extortion, right? They go to court on cases that would otherwise not have come to court, because they're too small, the damages are too tiny. What just happened in the Southern District was on a pre-motion letter seeking a motion on fair use. The judge responded, "You don't need to make the request," he received a response from the plaintiff, and decided right there on those letters to say, "Yeah that use was fair use." Which was great as far as I was concerned because I didn't even consider in some of these cases using the fair use defense because the party did take a photograph that existed, may not have had any market for sale, but took that picture, put it on their own websites, to depict the same thing that was being depicted in the original, it wasn't for commentary, it was just for, a zillion different purposes 'cause there were a zillion different defendants. The question I have is, is this something now that the courts might consider a little differently based upon the level of damage, or the level of, or the inherent value, of the justification?


- Well I'm not sure I understand all the implications of your question but I think part of it is, I have always believed that a useful understanding of copyright requires that de minimis be a muscular doctrine. I'm a little uncomfortable, I'm more than a little uncomfortable with using fair use as a kind of a garbage pail to collect all cases that seem like they don't really have merit. Copyright is a very problematic doctrine because of transaction costs and other sorts of difficulties. The business of trying to secure a license can be not only expensive, time-consuming, burdensome, it can be impossible just to even get the attention of the person who's being asked for a license. So there are a lot of problems in copyright. And it's a great temptation to courts and everybody else, and some value to treating it as a dumping ground, as kind of a collect-all excuse to get rid of crap.


- [Questioner] Right.


- But I fear that doing that risks to do serious damage to the understanding of the doctrine, and so I'm kind of resistant.


- [Questioner] So in your talk Judge Leval you propose a new use for factor two. I just wanna talk about what we would do with the old use. So in an opinion by the late Judge Reinhardt in Sega versus Accolade, Judge Reinhardt looks at the copying of some software to extract essentially user interfaces from the software to design competitive software. And he says, well, under factor two, the nature of this work is that there's factual elements kind of mixed up with expressive elements in software, and to extract those factual elements you can't just read the software, you actually have to copy it and then decompile it. So the nature of this work is such that to access the things that the law allows you to access, you have to copy it, and so a wider latitude must be given for copying than would ordinarily be given. So that's a use he makes of factor two. Are you meaning to exclude that use from factor two, if so do you think it belongs somewhere else, is there some other factor where that consideration is better housed?


- No I didn't mean to exclude any, well I meant to exclude one consideration, I meant to exclude the fact that the original is a fact work, or the fact that the original is a fictional work, isn't a factor that favors factor two, that's all I meant to exclude. I was simply suggesting that in the innumerable opinions, including some of mine, in which courts have said, "I look at factor two and I find nothing in it "that affects my judgment," the courts were failing to recognize that in their discussion of factor one they had necessarily considered factor two. Now of course there is another aspect to factual works which is that facts are not protected by the copyright and you have the merger doctrine in addition, so that in many cases the copying of facts is not going to be an infringement because it's simply not an infringement without need to go to fair use to reach that conclusion. Have I approached an answer? You regarded that as an easy question? This one's gonna be worse.


- [Questioner] So I have two questions and one comment. So my first question is about the good faith fair dealing as a sub-factor, and I very much agree with you that it's a good idea not to give too much emphasis to that. I do wonder though whether indirectly by talking about justification, that justification will lead to at least some parties to basically say, well, bad faith, therefore not justified. So I think one of the things about purpose and character of the use is that it's more objective, and so I think you may be right and I'm gonna be thinking about the justification as a way of thinking about that first factor but I can see ways in which good or bad faith could end up sliding into this and so I wanted your comment about that. And my second question has to do with--


- You know what, let me deal with that first, let me answer that then get to your second 'cause otherwise I'll forget the first when thinking about the second. I think those are very pertinent remarks but it involves an ambiguity in the word justification and also an ambiguity in the word purpose. And I think that those are things to be viewed objectively. I don't mean justification in the sense of that it is just that this should be done, I meant more justification in terms that it serves the objective of copyright, the objective edification of copyright. Now a purpose has the same ambiguity and authors can take the witness stand and say, "Well my purpose in doing this was," and they can devise purpose. But those are not really what we mean, those kinds of things that might be jury questions. What we mean is really what the work communicates, and if the copying work undertakes to show that the statement in the original was a lie, it doesn't matter whether the emotional purpose of the copier was to get vengeance against the original or to do harm, or to serve a political purpose or whatever, it's exposure of a lie or intended exposure of a lie, undertaking to expose a lie, that's an educative purpose. And I mean justification in that sense of serving the objective of copyright, not that it seemed like a just and fair thing to do.


- [Questioner] So my second question is a question about the relationship between that purpose or justification factor and the amount factor. So you talked about the relationship between the first and second factors and I think that's very helpful. One of the developments in fair use law that I think has been really a very positive one is thinking about whether the amount that was taken was reasonable in light of the purpose. And that seems to connect the kind of justification with the amount taken. And so I hope if you publish this that you might actually reinforce the reasonable in light of the purpose as another consideration that should be weighed in the fair use analysis.


- I think I very much agree with that, you know I think that the reasonableness of the amount taken in light of the purpose bears on how likely the copying work can serve as a substitute. And when it goes far, if the objective of the copying is to show that a factual statement was untrue, but then it copies an awful lot more that is in no way relevant to that analysis, the more it copies the more it proffers itself as a substitute, and the less that can be justified for the demonstration of the falsity of the premise, I agree completely with what you're suggesting.


- [Questioner] And my last comment? I sure would like to see a Second Circuit opinion that basically says that fair use is a defense not an affirmative defense but that's just a hope for the future.


- [Questioner] So Judge Leval, I wanted to ask you about the Cariou against Prince case from the Second Circuit. I know you were not on the panel and that case has since settled. This is the case where Cariou's photographs of Rastafarians was taken by Richard Prince, a so-called appropriation artist, and he added things like guitars to the images and then sold those as works of art and for quite a lot of money. And in thinking about the idea of justification, which is a great way to, I think, frame the question of, you know what are the purposes of copyright law, how does fair use play into that, it's useful to think about analogies, how do we actually apply those standards to cases? The fair use decision from the Second Circuit in Cariou is one that's gotten a lot of attention by fair use scholars and by copyright practitioners as really pushing the boundaries of fair use so far, in part based on the idea of transformation. And yet Richard Prince, as someone who calls himself an appropriation artist, that almost tells you a lot about the justifications. And I wonder if you have any thoughts or comments on how your approach to the justifiable purposes of the copyright law, might apply in a situation like the Cariou against Prince case.


- These cases are so much a matter of comparison of the original and the copying work. As I was suggesting in talking about the likelihood of being able to answer, to solve most of these cases, on a 12 motion, and I really just haven't done the looking at the originals and the copies in the Cariou case to be able to give an answer to your question.


- [Questioner] All right thanks.


- I haven't done the homework.


- [Questioner] I'm going to follow up on the question before about de minimis and fair use. We've had more commentary on it in terms of sampling and so is there a separate rule, separate from fair use, that deals with de minimis and says de minimis is okay simply because it's de minimis, could you articulate something more definitive about?


- Yeah I think it's a separate rule, I think it's a separate rule. Fair use is not really about de minimis, there is a rule of de minimis, there are lots of copyright cases, I don't know how many but there certainly are copyright cases where the judgment has been rendered on the basis that it was de minimis, and it's a universal doctrine in the law, de minimis non curat lex, and you don't need to refer to fair use to reach a decision based on de minimis, a decision in favor of the defendant. I mean it's one of the awkward things about copyright is that, I suppose that when at a party, somebody gets up and sings "Happy Birthday", but maybe that's not under copyright anymore. That's arguably a copyright violation, and everybody does things, just about everybody does things frequently that are arguably copyright violations, and I think it's awkward to think of it in terms of the law being violated right and left, and I think it's a helpful and important notion not to distort copyright law that de minimis be recognized as an independent basis for rejecting a copyright claim without having to go in and reach decisions that might be very difficult to square with the standards that should govern a fair use decision and might cause distortion of the fair use precedents for future cases that were not de minimis.


- [Questioner] Thank you for your comments which I think are very, very important and very right on the importance of taking good faith out of the equation. But it seems to me that--


- Let me just interrupt to say, there's one thing I forgot to say in response to Pam Samuelson, was that she expressed I think some agreement with my proposal to give minimal importance to bad faith, but that was not my proposal, my proposal was to give it zero importance. And that's an important difference because, you know we had a statement in one Second Circuit case that bad faith is part of the analysis but it hardly ever matters. Well as long as it's in there it has the capacity to cause incalculable harm. And I think it's a requirement for fair use to be put on a proper understanding that it be wiped out completely, that it simply not have any relevance because unless it goes that far, all those problems can occur, sorry.


- [Questioner] No that's all right. Thank you for your comments and I think they are important. I think, though, the point you've made about good faith gives every reason to obliterate the distinction between parody and satire. The comments you made distinguishing them made satire sound a little bit like trademark dilution. It was using somebody else's material to call attention to your own independent product, and you referred to freeriding, which well freeriding is lawful and okay as long as one is not violating a right, but freeriding sounds pejorative and it sort of sounded like bad faith. And why would it be different, for example, if I'm using a news clip in a campaign, a news clip of an interview of my opponent to make a satirical point about my opponent? I'm not using the news clip to criticize the news clip, or to comment on the news clip, I'm using it for a different purpose, to send up my opponent. And it seems to me that--


- Wait, wait, you're using it to send up your opponent? So how does it send up?


- To insult my opponent, or to criticize my opponent.


- How does it do that?


- [Questioner] Because I'm taking some news clips of embarrassing statements that the opponent made, which are copyrighted news clips by the broadcaster, I'm using them fairly for a collateral purpose.


- Oh I see you mean you're talking about the copyright of the television station.


- Of the news clip, that's right. I'm using it not to critique the news clip, I'm using it to critique something else. And in society it's very common to use tropes or iconic figures or passages or phrases to make broad comments about society, I don't see why that is any less deserving of fair use protection than a parody. Neither one is particularly affecting the incentives, the ultimate purpose you were referring to, for the original author. And it seems to me that we've gotten tied up in a distinction here that's an artificial distinction for purposes of copyright law, and your point about good faith to me strikes me as though there's nothing wrong with satire other than maybe the suggestion that somebody should be paying for that collateral use, without any effect on the incentive to the author. Thank you.


- Yeah well. I don't think I agree with you, I do agree with you that it's very helpful, it can produce very good stuff to be able to use somebody else's material to communicate one's own message. And once again, I don't really think, although I plead guilty to having used words as rhetorical devices to make my point seem more appealing to use words that seem to refer to moral principles like freeriding sounds bad. But I'm thinking of the interest of the author. The fact that an author creates a useful work, a work that it has great utility to society for all sorts of purposes, it seems to me, does not serve as an argument that the public ought to be allowed free access to the use of that work. It seems to me that that is exactly what the copyright seeks to reward. When an author creates a work that the rest of the world regards as important to have and to use and so forth and to copy, that's what the author is entitled under the copyright to be paid for. So I mean I see a lot of merit to what you're arguing, but it does seem to me that there is an important distinction, the distinction made by Justice Souter in Campbell is an important one. That just because it increases the effectiveness of your communication to communicate it through somebody else's copyrighted work, is not a sufficient reason, not a sufficient justification for you to take it for free. But I can see that it's a debatable point and the kind of examples that you use have some force. It reminds me of, I was in Los Angeles a few years ago, I was invited to the beautiful, what's the name of that gorgeous hotel where the movie stars go? What was that?


- [Man In Gray Suit] The Beverly Hills or--


- Beverly Hills Hotel, to give a talk to the Los Angeles bar on fair use. Now you gotta be a fool to go from New York to give a talk to fair use to the California bar, they don't like it out there. But anyway I was there to give that talk, and my talk was at 8:30, and I realized that I had left my glasses in my car. And I needed my glasses to be able to see my papers, and so at the Bev you can't just go to your car, you've gotta have a valet bring it, and I was standing in front of the hotel waiting for the valet to bring my car, when I see somebody walked up the path. And the person walking up the path is a filmmaker, Doug Liman, who is the brother of my former law clerk, and I knew him slightly, and he's walking up the path and he's glued to his phone and walking up towards the hotel, and as he gets near me he looks up and he recognized me and I say hello to him, and he says, "Do you know anything about fair use?" And I said, "Well I hope so 'cause I have to give a talk about it in 20 minutes." And he says, "Well I've got this problem, "I'm making this film about the Valerie Plame incident, "and I really need to use the news clips "that were reporting all this stuff "about the nuclear material "in Africa somewhere and all that, "and I can't get a license from the television stations." Well I said, "Well it sounds to me like the thing," I don't know in any event I introduced him to another former law clerk of mine in Los Angeles who was able to help him and get him insurance. And when I saw the film I saw that there was a credit to me. Anyway.


- [Questioner] Thank you judge. I wanted to come back to your discussion of factor one and walking through the factors in particular focus on the discussion in cases of transformative purposes, and the cases distinguished between two types of transformativeness, one in which the defendant takes the original work, takes a portion of the original work, and does something to it and creates a new work, that is different than the original, transforms it in some way.


- It doesn't make any kind of a commentary or illuminate the first, you're saying?


- [Questioner] No, no I'm saying that there are some in which there is a transformation of some kind to the original work, whether it's modifying it's physical appearance, or the commentary, or putting it in a different context, or what have you. And then you have another series of cases where that doesn't happen. Where there's a full-scale reproduction of the original work without modification, think you know the Google Books case for instance where they're scanning the entire work and the whole point is to have it appear, and make the exact use of an identical copy of the original and so there's no transformation of the work itself. And you have a series of cases around the country that then talk about whether or not the purpose of the copying was transformative. And so you have a distinction between transformative use of the work and transformative purpose in using the identical work, or an identical copy of the work. And when I read those cases you then get to factor four, and they talk about, well because you're using it for a transformative purpose, you're using it for a purpose different than the plaintiff intended to use it, there's no effect on the market. And so the fact that you're using it for a different purpose than the plaintiff gets counted under factor one and under factor four, and my question is, is that a double count, and should that matter, should we be concerned about measuring the fairness if all that's happening is that it's for a different purpose but there's no transformation of the work itself.


- Well I don't think that the fact it's for a different purpose means that there's no effect on the market. I think that the point about transformative is that using the original for different purposes reduces the likelihood that it's going to have an effect on the market because the different purpose means that it's likely to be of interest to a different audience, so it's merely a matter of likelihood. But our opinion made what I thought was an important point in Google Books, that the result would have been different if Google had done this in a manner that left the digital copies exposed on the internet in a manner where very easily anybody could grab them off and use them as a substitute. So if you view the purpose of the copying in Google Books as being the purpose to enable the public to identify books that respond to their interest, if I want a book on Einstein I just write Einstein into the search box and it will identify for me all the books that use the word Einstein. And that is a transformative purpose, but that doesn't answer the fourth factor because if Google had simply left the books up there on the internet after using them for that purpose where anybody could pick them off and no longer buy the books to read it, there would be inevitably tremendous fourth factor harm. Virtually the destruction of the market of the book. So the fourth factor is independent, there's a strong inter-relationship between them because a transformative use is less likely to result in a substitution. But the other kinds of factors are, I mean supposing that an art historian writes a treatise on Matisse, and the treatise on Matisse includes some copies of works in order to illustrate certain kinds of points, in order to show how Matisse uses color, or the importance of textiles in Matisse's work, the fact that, well I'm sorry, I chose a bad example. I was going to say that the price of the... Change it from Matisse to Hemingway, supposing that there's quotation from Hemingway for various points and the scholarly book that subsequently quotes is something that sells for $70, whereas you can buy the Hemingway book for $3.50, the fact that the copying book is very, very expensive, and the original whose market is concerned in factor four is quite inexpensive to buy, that's going to effect the fourth factor. There's a relationship between them but the one doesn't answer the other.


- [Questioner] Thank you.


- [Moderator] Please join me in thanking Judge Leval.