Recent (scholarly and popular) fair use victories
The scanning and digitizing of books has been an ongoing battle between Google (with its Google Books service) and the Authors Guild which claims copyright infringement on behalf of authors (Authors Guild v. Google; LEXIS 17988). On October 16 this year, a federal appeals court judge ruled that Google’s practice of making portions of books freely available online is not a violation of copyright law. The first of four factors considered in fair use determinations is the purpose and character of the material’s use. The judge in this case determined Google Books to be providing a “transformative” use, thus deeming it a fair one. This is a victory for fair use advocates and for the millions of us who use Google Books as a research tool.
Earlier this year, two copyright cases involving popular culture serve as illustrations about the power of fair use. In March, a New York federal judge ruled in favor of a parody of the late 1970s TV sitcom Three’s Company and against the entertainment company that owns the sitcom’s rights (David Adjmi v. DLT Entertainment Ltd.; LEXIS 43285). While the writer, David Adjami, borrowed heavily from the original TV show in his off-Broadway play, 3C, the judge considered Adjami’s use transformative and therefore a fair use.
Similarly, in September a federal appeals court in San Francisco ruled in favor of a woman who posted a half-minute video on YouTube of her children dancing as the Prince song “Let’s Go Crazy” played in the background (Lenz v. Universal Music Corp.; LEXIS 16308). Copyright owner Universal Music did not sue the woman for copyright infringement; rather, they sent a notice under the Digital Millennium Copyright Act (DMCA) in an effort to remove the content from the Internet. The advocacy group Electronic Frontier Foundation sued Universal on behalf of the YouTube poster claiming that Universal abused the DMCA by improperly targeting a lawful fair use. Their victory not only affirms that copyright holders must consider whether a use is fair before issuing a takedown notice, but it also illustrates that fair use is a right, not a defense, a contentious and misunderstood point in the world of copyright law.
These three cases are cause for celebration for all of us, researchers and content creators, and a reminder of the power and importance of fair use.