South Park and University Librarians: a Potential Alliance in the Fight to Preserve Fair Use Rights for America’S Universities
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NOTE SOUTH PARK AND UNIVERSITY LIBRARIANS: A POTENTIAL ALLIANCE IN THE FIGHT TO PRESERVE FAIR USE RIGHTS FOR AMERICA’S UNIVERSITIES Evan Miller TABLE OF CONTENTS INTRODUCTION ............................................................................................... 307 I. COPYRIGHT LAW AND FAIR USE ................................................................. 310 II. THE COPYRIGHT CLEARANCE CULTURE .................................................... 314 A. Industry Customs and Risk Aversion .............................................. 314 C. The Copyright Clearance Center ................................................... 321 IV. STRATEGIC LITIGATION ............................................................................ 323 A. Brownmark Films, Inc. v. Comedy Partners .................................. 323 B. Cambridge University Press v. Becker ........................................... 326 C. Melding South Park’s Procedural Victory with GSU’s Substantive Victory ...................................................................... 331 1. Distilling Fair Use Principles from Cambridge University Press ...................................................................................... 331 2. Lessons Learned from Brownmark Films ................................ 332 3. Preemptively Addressing Criticism ......................................... 333 IV. CONCLUSION ............................................................................................. 335 INTRODUCTION Jane, a spunky red-haired librarian, was discussing copyright law with three wide-eyed college professors. To Jane’s dismay, a professor named Tim distributed a journal article to his students through an online course management system. Jane seemed intrigued and asked: “Oh boy, did you check with the copyright holder to see if it’s okay to post that article?” Tim was perplexed. “I’m using it for educational purposes, so I don’t need permission,” he told Jane. Jane began explaining copyright law to her colleagues. “We have a responsibility to protect the rights of copyright holders, no matter how we share their work,” Jane warned the group. “Sure, but who is really going to know if we illegally share content? Does it really 307 308 B.U. J. SCI. & TECH. L. Vol. 20:2 matter?” asked another professor. “Oh, it matters. It’s the law,” Jane replied.1 The scene transcribed above is part of an animated video that is prominently featured on the Copyright Clearance Center’s (“CCC”) website.2 The CCC is a digital licensing clearinghouse that sells licensing plans to educational institutions and businesses.3 The CCC’s animated video is set on a fictitious college campus with a plaque reading “veritas,” the Latin term for “truth,” prominently featured in the background.4 Presumably, the CCC chose to prominently display “veritas” to depict its position of “when in doubt, obtain permission” as morally right.5 Unsurprisingly, given that the CCC is a licensing clearinghouse, the video encourages university faculty to approach fair use with caution.6 The United States Constitution authorizes Congress to pass copyright laws intended to “promote the Progress of Science and useful Arts.”7 To be sure, guaranteeing that authors of novel and creative content can protect their intellectual property is critical to encouraging new innovation.8 Overly aggressive enforcement of copyright laws, however, has an undesirable outcome: shrinking the scope of fair uses of copyrighted material for 1 Copyright on Campus Video, COPYRIGHT CLEARANCE CENTER, http://www.copyright.com/content/cc3/en/toolbar/education/resources/copyright_on_campu s.html. 2 Id. 3 About Us, COPYRIGHT CLEARANCE CENTER, http://www.copyright.com/content/cc3/en/toolbar/aboutUs.html. The CCC claims that it was “created in 1978 at the suggestion of Congress . .” Technological Protection Systems for Digitized Copyrighted Works: Written Comments of Copyright Clearance Center, Inc., United States Patent and Trademark Office (Jan. 14, 2003). Although not readily apparent from the CCC’s promotional materials, the suggestion of Congress it refers to appears to be the following line from a 1975 Senate Report: “Concerning library photocopying practices not authorized by this legislation . , the committee recommends that workable clearance and licensing procedures be developed.” S. REP. NO. 94-473, at 71 (1975). 4 COPYRIGHT CLEARANCE CENTER, supra note 1; LATIN FOR LAWYERS: WITH 1000 LEGAL MAXIMS, at 300 (The Lawbook Exchange, Ltd., 1992). 5 Copyright Basics Video, COPYRIGHT CLEARANCE CENTER, http://www.copyright.com/content/cc3/en/toolbar/education/resources/copyright_basics1.ht ml. 6 The “when in doubt, obtain permission” philosophy would pressure university faculty to seek licenses, even when the majority of their unlicensed use falls under fair use. See Cambridge Univ. Press v. Becker, 863 F.Supp.2d 1190 (N.D. Ga. 2012) (finding Georgia State University liable for only five of the ninety-nine counts of copyright infringement). 7 “The Congress shall have Power . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. CONST. art. I, § 8. 8 Tom Braegelmann, Copyright Law in and Under the Constitution: The Constitutional Scope and Limits to Copyright Law in the United States in Comparison with the Scope and Limits Imposed by Constitutional and European Law on Copyright Law in Germany, 27 CARDOZO ARTS & ENT. L.J. 99, 104 (2009). 2014 South Park and University Librarians 309 permissible purposes, such as educational purposes.9 This Note argues that academic institutions should pair two recent court decisions, Cambridge University Press v. Becker and Brownmark Films, Inc. v. Comedy Partners, to aggressively defend their right to reproduce unlicensed copyrighted materials for classroom use. In Cambridge University Press, three publishers brought a copyright infringement suit against Georgia State University (“GSU”) claiming its unlicensed reproduction of copyrighted works violated federal copyright law.10 The district court overwhelmingly found in GSU’s favor on fair use grounds, finding for the publishers in only five out of the seventy-five triable counts of copyright infringement.11 This Note contends that nonprofit educational institutions can, and should, employ the lessons learned in Cambridge University Press to protect their fair use rights. In Brownmark Films, a copyright holder sued South Park Digital Studios claiming South Park unlawfully copied its protected music video without a license.12 The district court granted South Park’s pre-trial motion to dismiss because South Park’s use was protected under fair use.13 This Note will later suggest that nonprofit educational institutions can pair the substantive principles from Cambridge University Press and procedural principles from Brownmark Films to better protect their fair use rights. First, this Note discusses the fair use defense to copyright infringement and its importance to our system of copyright law.14 Second, this Note explores scholarship regarding the effects that industry customs and risk-averse attitudes have on intellectual property law. Specifically, this section discusses the “clearance culture” problem and how the litigiousness of the CCC threatens educational institutions’ right to fairly use unlicensed copyrighted material. Third, this Note proposes a potential strategy to solve, or at least alleviate, the clearance culture problem by encouraging educational institutions in the United States to strategically use the hard-fought substantive victory in Cambridge University Press and the significant procedural victory in Brownmark Films to defend their rights. 9 Michael W. Carroll, Fixing Fair Use, 85 N.C. L. REV. 1087, 1089, 1148 (2007). 10 Cambridge Univ. Press, 863 F.Supp.2d 1190. 11 Id. 12 Brownmark Films, LLC v. Comedy Partners, 800 F. Supp. 2d 991, 995 (E.D. Wis. 2011). 13 Id. 14 In an effort to limit the parameters of this discussion, this Note will only discuss copyright issues relevant to nonprofit educational institutions. Additionally, this Note’s focus is further limited to the fair use defense. Scholarship that advocates for the expansion of Section 108 to give colleges and universities broader freedoms when distributing copyrighted material does exist, however, such positions, while interesting and supportive of this Note’s general purpose, are beyond the scope of this discussion. 310 B.U. J. SCI. & TECH. L. Vol. 20:2 I. COPYRIGHT LAW AND FAIR USE The Copyright Act of 1976 affords a copyright holder a number of exclusive rights, including the right to reproduce the copyrighted work.15 Not all works are copyrightable; this statutory protection is reserved for original content that has some creative characteristic.16 If an unauthorized user intrudes on the copyright holder’s exclusive right to reproduce his or her work, in whole or in part, then the copyright holder has the right to sue the user for copyright infringement.17 A person is allowed to use copyrighted work without permission when Section 107’s multi-factor analysis weighs in the user’s favor.18 In general, a user should consider these four factors before using copyrighted work without permission: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for a nonprofit educational purpose; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the