Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2019 Fair Use in the United States: Transformed, Deformed, Reformed? Jane C. Ginsburg Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Computer Law Commons, Intellectual Property Law Commons, and the Internet Law Commons Recommended Citation Jane C. Ginsburg, Fair Use in the United States: Transformed, Deformed, Reformed?, SINGAPORE JOURNAL OF LEGAL STUDIES, VOL. 2020, P 265, 2020; COLUMBIA PUBLIC LAW RESEARCH PAPER NO. 14-639 (2019). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2676 This Working Paper is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. Forthcoming 2020, Singapore Journal of Legal Studies Fair Use in the United States: Transformed, Deformed, Reformed? -- Jane C. Ginsburg* Abstract Since the U.S. Supreme Court’s 1994 adoption of “transformative use” as a criterion for evaluating the first statutory fair use factor (“nature and purpose of the use”), “transformative use” analysis has engulfed all of fair use, becoming transformed, and perhaps deformed, in the process. A finding of “transformativeness” often foreordained the ultimate outcome, as the remaining factors, especially the fourth (impact of the use on the market for or value of the copied work), withered into restatements of the first. For a time, moreover, courts’ characterization of uses as “transformative” seemed ever more generous (if not in some instances credulous). Lately, however, the fair use pendulum’s outward swing may have arrested, as courts express greater skepticism concerning what uses actually “transform” content copied into new works or repurposed into copyright-voracious systems. As a result, courts may be reforming “transformative use” to reinvigorate the other statutory factors, particularly the inquiry into the impact of the use on the potential markets for or value of the copied work. The restored prominence of the fourth factor should also occasion renewed reflection on its meaning. As digital media bring to the fore new or previously under-examined kinds of harm, courts will need not only to continue to refine their appreciation of a work’s markets, but also to expand their analyses beyond the traditional inquiry into whether the challenged use substitutes for an actual or potential market for the work. Courts should acknowledge that the * Morton L. Janklow Professor of Literary and Artistic Property Law, Columbia University School of Law. Thanks to Shyamkrishna Balganesh, June Besek, David Lindsay, David Louk, Tim Wu, and for research assistance to Anna Iskikian and Brandon Zamudio, both Columbia Law School class of 2020. Professor Jane Ginsburg delivered the second EW Barker Centre for Law & Business Distinguished Visitor in Intellectual Property Lecture at the Faculty of Law, National University of Singapore on 12 November 2019. This article is based upon that lecture. 1 Electronic copy available at: https://ssrn.com/abstract=3484949 statute’s designation of “the value of the copyrighted work” identifies an independent kind of harm, and entails considerations distinct from market substitution. Those include creators’ economic and moral interests in being recognized as the authors of the copied works. Introduction The U.S. Copyright Act of 1976 codifies the “fair use” doctrine developed by the American courts from the middle of the 19th century. It is the most general exception in U.S. copyright law. Judicious balancing of its four statutory factors assists the happy cohabitation of private rights in works of authorship with public rights of free expression.1 It also has tempered claims of copyright infringement in order to foster technological innovation. Many lay the credit—and some, the blame—for the recent expansion of fair use to favour increasingly parasitic new works and aggressively copyright-dependent new business models on the U.S. Supreme Court’s 1994 adoption of “transformative use” as a criterion for evaluating the first statutory fair use factor. As the previous EW Barker Centre for Law & Business Distinguished Visitor in Intellectual Property, Barton Beebe, has observed (albeit not in last year’s lecture), since the U.S. Supreme Court’s 1994 adoption of “transformative use” as a criterion for evaluating the first statutory fair use factor (“nature and purpose of the use”), “transformative use” analysis has engulfed all of fair use, becoming transformed, and perhaps deformed, in the process.2 A finding of “transformativeness” often foreordained the ultimate outcome, as the remaining factors, especially the fourth (impact of the use on the market for or value of the copied work), withered into restatements of the first. Initially deployed to assess whether the challenged use resulted in a work that transformed the copied material with “new expression, meaning, or message,”3 transformative use evolved into transformative purpose, enabling a variety of technological fair uses that copied entire works without accompanying commentary, criticism or other substantive 1 See, e.g., Harper & Row v. Nation Enters., 471 U.S. 539, 558 (1985) (copyright is the “engine of free expression”); Eldred v. Ashcroft, 537 U.S. 186, 219 (2003); Golan v. Holder, 565 U.S. 302, 328 (2012). 2 See generally Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156 U. PA. L. REV. 549 (2008). For a more recent empirical study, see Jairui Liu, An Empirical Study of Transformative Use in Copyright Law, 22 STAN. TECH. L. REV. 163 (2019). 3 See Campbell v. Acuff-Rose, 510 U.S. 569, 579 (1994) (citing Pierre Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105 (1990)). 2 Electronic copy available at: https://ssrn.com/abstract=3484949 intervention in the work’s content. Moreover, because fair use is “not an infringement of copyright,”4 none of these technological fair uses, however profit-making, required any payment to the authors and copyright owners whose works served as “raw material.” 5 Lately, however, the fair use pendulum’s outward swing may have arrested, as courts express greater skepticism concerning what uses actually “transform” content copied into new works or repurposed into copyright-voracious systems. As a result, in both new work and new purpose cases, courts may be reforming “transformative use” to reinvigorate the other statutory factors, particularly the inquiry into the impact of the use on the potential markets for or value of the copied work. The restored prominence of the fourth factor should also occasion renewed reflection on its meaning. As digital media bring to the fore new or previously under-examined kinds of harm, courts will need not only to continue to refine their appreciation of a work’s markets, but also to expand their analyses beyond the traditional inquiry, i.e., whether the challenged use substitutes for an actual or potential market for the work. Courts should acknowledge that the statute’s designation of “the value of the copyrighted work” identifies an independent kind of harm, and entails considerations distinct from market substitution. Those include creators’ economic and moral interests in being recognized as the authors of the copied works. This article will examine the flow and eddy of the U.S. fair use trajectory, and will consider whether the U.S. experience might offer useful guidance (or cautionary tales) to other jurisdictions, notably Singapore, which are considering adopting or expanding fair use-type copyright exceptions. I. From transformative work, to transformative purpose 4 17 U.S.C. § 107. 5 See Seltzer v. Green Day, Inc., 725 F.3d 1170, 1176 (9th Cir. 2013) (finding a “transformative purpose” where defendant “used [plaintiff’s illustration] as ‘raw material’ in the construction of [a] four-minute video backdrop”); Bill Graham Archives, LLC v. Dorling Kindersley Ltd., 386 F. Supp. 2d 324, 330 (S.D.N.Y. 2005) (finding a “transformative purpose” in defendant’s reproduction of seven copyrighted images in their entirety). See also Authors Guild v. Google, Inc., 804 F.3d 202, 216–17 (2015) (finding “a highly transformative purpose” in Google’s digitization of entire books for the purpose of enabling a search function); Authors Guild v. HathiTrust, 755 F.3d 87, 98 (same). 3 Electronic copy available at: https://ssrn.com/abstract=3484949 A. General observations First, a few general comments about fair use in the U.S. Section 107 of the U.S. Copyright Act of 1976 codifies the “fair use” doctrine developed by the American courts from the middle of the 19th century.6 If applicable, this exception makes unconsented copying from prior works “non-infringing” and thus does not give rise to any payment. Section 107 contains a preamble listing several kinds of uses, notably for criticism, comment, news reporting and teaching, but these examples do not delimit the universe of permitted uses. In fact, the preamble gives a general idea of the scope of the exception (in particular, most, but not all, of the examples concern the inclusion of the copied material in a new work made by the person who carried out the partial copying from an earlier work). Unlike “closed list” systems of copyright exceptions,7 or most “fair dealing” exceptions in Commonwealth countries, a use’s absence from the list does not prevent it from being covered by fair use. Moreover, a use’s inclusion on the list does not in itself lead to the conclusion that the use will be considered non-infringing. On the contrary, the law sets out four non-exhaustive factors “to be considered” by the courts: (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 6 The decision commonly considered the origin of the U.S.