Friday, December 28, 2012

Why Fair Use Is Important

This is not legal advice. Leave audio feedback at (512) 686-6329.

Issue: Should plaintiff's bear the burden of rebutting fair use in their case in chief?

I'd like to start by saying I hope any readers have had a great Thanksgiving and I'm sorry its been so long seen I posted, the holidays can be hectic, especially if you have law school finals.

I believe fair use is the most important aspect of American Copyright law because it is really meant to achieve the purpose of copyright law which is to promote the progress of science and the useful arts. Which is not to say that other aspects of copyright law do not promote science and the useful arts but fair use is an important balance to the economic incentives given to copyright holders and the right of others to communicate freely.

Doug posed an interesting thesis that rebutting fair use should be an aspect of a prima facie case for copyright infringement. I disagree mostly for procedural reasons. Lawsuits start with a plaintiff filing a complaint and then the defendant filing an answer. Then there can be a motion for a judgment on the pleading if it is clear that no real case exists. (or in some rare debt collection cases I believe a plaintiff can win on judgment on the pleadings.) Requiring plaintiffs to rebut a case for fair use in their pleading before discovery would frustrate the doctrine of fair use because fair use is a fact intensive doctrine. Judges need to have a strong grasp on all relevant facts in order to determine whether a use is fair or not. Forcing plaintiffs to allege that fair use is not possible before the plaintiffs have had an opportunity to go through discovery would result in good cases being thrown out because plaintiffs' attorney were unable to obtain all the facts through the procedural process.

As to whether the plaintiff should bear a greater burden to rebut a defense of fair use at trial is an irrelevant issue. The Doctrine of fair use is a four factor balancing test. If a defendant raises the defense in the defendant's answer, then at trial the defendant will argue for the factors they believe favor fair use and the plaintiffs argue for the factors they believe will rebut fair use. Essentially I don't think a shift in the burden would do much unless Doug is arguing to change from the balancing test to something else entirely different. I just do not see the need for change because fair use adequately balances copyright owners economic incentives with everyone's first amendment right to free speech.

Friday, December 7, 2012

Copyright: Week 3-5 - The Ravings of a Mad Man

This is not legal advice. Leave audio feedback at (512) 686-6329.

I believe it was Week 2 when Nick decided he needed to leave the Lawcast for health reasons. It I'm not sure if it was Week 5, but there abouts my grandmother died.

In the interim, Brian came on board and I worked on piecing together articles for those weeks. However, I as the semester went rolling by I never went back and got out those Week 3, 4 and 5 posts.

Below the fold I give you a rough draft of what I had going on. Some say that putting out unfinished content dilutes the brand, but I say release early and release often! Brian should be coming out with critiques of my last three articles and that will knock this off the front page. If people don't like the article it will float away into obscurity. Perhaps though, the unfinished thoughts will provoke some response. Maybe the people are really interested in what I have to say about these topics.

Either way, the people will speak, even if it is with their silence.

Copyright: Week 15 - Upcoming Issues

This is not legal advice. Leave audio feedback at (512) 686-6329.


December 6 – Review & Discussion: Kirtsaeng at the US Supreme Court; Google Book Search & fair use (readings & class assignment follow below)

  1. Listen to the recording of the oral arguments before the US Supreme Court on October 29, 2012:
(NOTE: you may find it helpful to read along with the transcript (provided on the same page as a PDF document) as you listen to the recording.)
  1. Read pp. 364-366 (top) of the SUPPLEMENT to your Casebook.
  1. Watch the following 30-minute video featuring a talk by Professor Lawrence Lessig of Harvard Law School, on whether Google Book Search is fair use or not:

Originally, I was going to talk about preemption this week. Perhaps it is because I am a Constitutional Law junkie, but it is one of my favorite topics. However, Professor Wong removed it from our syllabus. On the plus side, many of our materials (above) are free to the public, so you don't need the book we've been using to follow along.

THESIS FOR REBUTTAL: If Google Books goes to trial, it will not be fair use.

Back in Week 12/13, I didn't have the time to do a lengthy four-factor fair use analysis...and I'm not going to do one this time either. I'll leave that to Brian, because in this case I'm not sure that the four-factors will be the driving force.

First off, let me say that I'm not sure I agree with Professor Lessig about Google Book Search being fair use. It would be great if he was correct, but just like Justice Brennan and Justice Marshall dissent in just about every Criminal Procedure case, I think Lessig is on the wrong end of this (just like he was in Eldred). I'm tempted to say I think it's fair use because there is an ounce of truth that if you repeat something enough times it becomes true. Of course, the honest way to feed that machine is to say simply that it would be good policy for Google Book Search to be fair use. That is a statement I can stand by without an ounce of hesitation. However, I'm afraid the courts are going to want more guidance from Congress before pronouncing something so controversial as fair use.

When Brian and I were discussion this in meat space, he brought up the point that the anti-trust analysis is a different analysis that the fair use analysis. Perhaps then the correct way to announce my pecessism is to say that I think that it *is* fair use but that it won't survive an anti-trust challenge. 

Having not studied anti-trust law, I can't say one way or another how I really feel about the anti-trust challenge. There does, however, seem to be growing distrust of Google. In some sense, even a benevolent giant is likely to destroy a few things under its feet. I can't get past the fact that Google has had skirmishes with the law over its image search, Android and over YouTube. Google thus far has done just enough to stay on the right side of the law. 

Courts are supposed to be neutral and detached, but judges are people too. Whereas a court ruling that made image search, Android or YouTube financially unfeasible would have genuinely alter the commercial fabric of America, I personally can't see a ruling against Google Books as having such dire consequences. This might be a perfect time for a court to tell Google to step away from the infringement line.  
But, maybe I'm wrong. Lessig is not the only law professor that thinks Google should prevail in court and courts do have a history of protecting innovation against over-breadth of copyrights and patents (aside from the obvious misstep of not seeing sampling as innovation).

Law professors have spilled a lot of (digital) ink on the Google Books project. A cursory search of WestlawNext returns 9134 secondary sources on the topic (Google Scholar, which covers more than the law, returns over 1.3 million hits for the search "google book search," ~30k of which are from 2011 or 2012). I encourage all of our readers to read up on the topic. The outcome of a Google Books case could affect the outcome of a similar attempt to have an Alexandria of music online. How an online music library might be different than an online book library was originally going to be the topic of this post, so if that's something that interests you, let me know and I can make it the subject of my next post.

...which will be 2013

Have a Merry Christmas* and a Happy New Year**!

*other holidays are available
** actually, other New Years are available too, which makes me wonder why no one gets in a huff when you wish them a New Year on January 1st? What about Jewish New Year? What about Chinese New Year? Anyway, for those of you in school or taking time off for whatever reason, I hope you enjoy it!