Fair Use and Access

Try this hypothetical. Writing a novel seems to be the thing for law professors to do these days, so I pen a law-and-economics thriller (how could it not be?). You want to read it but I have not released any copies but you know that I have one printed sitting in my bedroom at home. You break into my house, steal the novel, immediately read it, and blog a book review, which includes juicy quotes (“He had the supply, she had the demand, and in the heat of the moment they vertically integrated.”)

Where does this put us when the cops catch you? Do you go to jail? Can I sue you for copyright infringement?

We need to distinguish use and access. Section 107 of the Copyright Act addressed fair use and all it does is pull certain uses out of the general infringement regime created by copyright law, meaning that if you do one of those uses, you can’t be held liable for copyright infringement. By itself, section 107 doesn’t create an independent right of access to works and doesn’t limit the ability of a copyright holder to condition access to the work. Limits on those conditions will have to be found elsewhere, if anywhere.

I can readily imagine three possibilities as to how use and access should interact:

1. Full Separation. Use and access are separate questions. Your right to use the material doesn’t turn on how you obtained access. It is what it is independent of how you got access. If a book review of a book borrowed from the library would be fair use, so would your review of the stolen book. Note in passing that the copyright cases used to make a distinction between published and unpublished works with more limited fair use of unpublished works, but Congress amended that statute to put published and unpublished works on even footing.

But, more independence, your immunity to use the material if you have access also doesn’t change your right to gain access to the material. If stealing the book is a crime, you don’t get off the hook by saying that the use that you made of the book was a fair use. So in the hypo, the state has a criminal action against you for burglary, but I wouldn’t have an action against you for copyright infringement.

2. Fair Use Penalties. I could imagine a regime of fair use penalties, meaning that we take into account how access was obtained and limit usual fair use because of the way in which access was obtained. So in the hypo, we say that the use that would usually be fair—the book review—loses that status because the manuscript was stolen. The state gets to put you in jail for the theft and I can sue you for copyright infringement.

3. Fair Use Trumps. The flipside of fair use penalties would be fair use trumps: we use the fact that the use would not be copyright infringement because it would be fair to trump the punishment that could attach to the method used to acquire access. In the hypo that would mean that the state could not prosecute for burglary because the book review was fair use.

I am quite skeptical about the role for regime 3. I could go either way on 1 or 2, but regime 3 effectively converts a particular copyright privilege into something much, much broader. Bill Patry lays out some of the relevant caselaw in a December, 2005 post; I think that a fair reading of that suggests that we are in 1 or 2, but if you know of cases that suggest otherwise please comment.

What cases might fall within my third situation? The hypo obviously, but that is the most extreme version. Consider two other situations: (1) contractual access limits and (2) digital rights management technologies. I give you access to the manuscript of my l&e thriller but I make you promise not to post a review on your blog. You breach the promise. Do I have an action in contracts? Copyright infringement? What is the interaction between the two?

The case against enforcing the contract would focus on the third-party benefits of fair use. Fair use benefits not merely the person making the use, but also those who are exposed to the use. The book review isn’t so much about the reviewer as the potential audience for the book. A recipient of the manuscript who agrees to contractual limits on use might not take into account fully the third-party benefits associated with not being subject to the limits. If you thought that the author would grant access even without the contractual limit, we would be better off barring the enforcement of the contractual term. If you thought that, you might say fair use trumps the contract.

Even putting to one side the empirical judgments required, I am skeptical that you can do that easily in the current statute. As suggested before Section 107 just excludes certain uses from copyright’s rules regarding infringement. Preemption of the usual rules regarding contracts would take another step and probably turns on how we understand Section 301 of the Copyright Act. The caselaw on that is mixed. Bowers v. Baystate, 320 F.3d 1317 (Fed. Cir. 2003) is a relatively recent discussion of the issue and comes out, 2-1, in favor of enforcing a contract that barred reverse engineering of a copyrighted work.

The leading caselaw discussion of the DRM question is probably Universal City Studios, Inc. v. Courley, 273 F.3d 429 (2nd Cir. 2001). Courley contended that the DMCA meant—in particular, Section 1201(c)(1)—that DRM schemes could be circumvented if that would allow fair use of the materials. The Second Circuit rejected that, but also concluded that the fact that fair use resulted from a breach of the DMCA didn’t somehow render that use unfair (“Section 1201(c)(1) ensures that the DMCA is not read to prohibit the ‘fair use’ of information just because that information was obtained in a manner made illegal by the DMCA.”). This is to embrace the full independence view.

I’m not sure that I agree with the Second Circuit that 1201(c)(1) adopts full independence. The section says that 1201 itself isn’t intended to change the usual rules regarding copyright infringement, including the fair use rule. As I have suggested above, fair use addresses use, not access. The fair-use penalty idea is a within-in fair use doctrine, a fair use version of clean hands, where you can forfeit fair use if you don’t get access to the material in a legitimate way. I wouldn’t understand 1201(c)(1) to limit a judge from applying this version of the cleans hand doctrine to what would otherwise be a fair use.

Comments

[anon]

That is singlehandedly the most disturbing quote I have ever read on this blog.

[bcowan]

I am not so sure that the Court meant to decree the complete independence principle.

The quoted passage contains this: "just because that information was obtained in a manner made illegal by the DMCA."

It seems, having so said, the Court could still deny fair use protection if the plaintiff could show other, extra-DMCA (pre-DMCA?), ways in which the particular mode of access to the information could be unlawful, such as common-law breach of contract, conversion, fraud. Trespass (in the hypo)

What types of access are "made illegal" by the DMCA that are not also at least potentially unlawful acts under other classifications? Are there modes of access made illegal by the DMCA that could never before it have been classified as unlawful?

Is it really possible that a new technical means of access to information could be so subtle as not to be caught in the common law net, thus needing technologically informed Federal Statutes to uphold the American Way?

[Bruce Boyden]

Interesting post. Your focus is on the impact access should have on use liability, but on the flip side of that coin, the Chamberlain v. Skylink decision, 381 F.3d 1178 (Fed. Cir. 2004), held that use has an impact on *access* liability, namely that access for uses that bear no "reasonable relationship to the protections that the Copyright Act otherwise affords copyright owners" is not prohibited under 1201. The analogy there is if I break into your house and use your manuscript as a fan to cool myself off, that's neither prohibited access nor use. The court declined to reach the fair use question, 1199 n.14, but didn't rule out a fair use defense to a circumvention claim either. So it's possible at least one circuit thinks we're in regime 3, at least in some circumstances.

[Kimball Corson]

I don't want to get to technical legally about this, but how can the thief get to fairly use it if he stole it? The author certainly did not give it to him and say, "Here, why don't you do a review of this." Without access, their can be no use, fair or not, Also, the childhood maxium of law "finders keeps, loosers weepers" does not apply, because the one off book was not available to be found in a public place. It was stolen, indeed, while trespassing and probably eating a purloined donut found on a plate in the house. Access and use cannot be separated here. You cannot have use without access, but you can have access without use. But the law does not care about the latter, so the former has to apply to have an issue. The thief should be jailed on the donut in an effort to avoid the copyright claim and defense.

[bcowan]

The only ideal combination with regard to which the law is unsettled (as Patrey, Picker, Boyden and Corson convincingly demonstrate is the case) is "bad access/good use," a generic situation which remains a long-ragged edge of property jurisprudence.

Owners want bad access to taint everything that follows it, however good, or at least to confiscate all benefits. They want second bites at stopping, if not punishing, uses that they always believe only others could think "fair."

Trespassers, adverse possessors, fathers stealing bread for their families, Brazilian reverse engineers of AIDS drugs, pioneer breakers of treaties with Native Americans, Napster users and other historic appropriators, some of whom it is still impolite to mention, want their good or necessary purposes to purge their actions of all such taint.

A coherent and adequate jurisprudence still eludes us on this edge. I think if it were to emerge, it would understand "access" and "use" as always involving types of human actions taking place within a complex mereology of overlapping contexts dominated by different types of social order for different, limited purposes. Where the diverse purposes of the relevant contexts and the character of the action that brought the case about could be mutually harmonized most effectively, that would be where the rule would come down.

Because subsequent occasions would be internally constituted by the rule in the case in question, at least to some degree, the Law could develop case-by-case, exhibiting a fairly reliable relationship to stable-while-changing social reality.

The Law would, in other words, be relational rather than substantialist, focusing on rules that would promote balanced recognition of the various natural and institutional contexts involved in complex human actions, rather than hammering down abstract schemes of overly deep-cut ontological distinctions over them.

To revise the hypo, if Randy had left his sensational manuscript in the Green Lounge (does it even exist any more?) to get a cup of coffee, not returning to pick it up because he slipped on spilled coffee and was injured and had to go to Billings for treatment, and the person who found it knew of Randy, was putting her son through the School of Social Services Administration by janitoring at night and reviewing underground culture on a highly successful, advertising-supported blog by day, sought to do Randy good, by, as she said, "putting the word out to people she knew would dig the book." How bad an access? How good a use?

[JonB]

My initial impression is that preventing fair use, as such, on the ground of improper access is akin to converting a legally purchased donut into a stolen donut because the customer was at the drive-through with a stolen car. The author may have grounds for a civil suit on a theory of undeveloped ideas or misappropriation, which may result in an injunction and damages against the thief, but have nothing to do with the thief's use of the material.

Another question might be: what of the innocent blogger who remarks on the thief's review? Strikes me that the only recourse the author has in this case is to seek any damages caused by the release of his work from the thief, and not from the blogger. I think this illustrates that fair use should be independent.

As for bcowan's hypothetical--the well-intentioned user of "badly" accessed material--without actual damages to the author, an injunction is likely the stiffest civil penalty available. What would be the source of monetary damages? The best theory would be under unjust enrichment, but my guess is that the author is in no way worse off due to the advertisement revenue from the review. Attorney's fees, however, may be substantial ... especially with law students sleeping through ethics classes these days ...

OK, so the original hypothetical was presented as a possible introduction to DRM circumvention. What, then, about the consumer who violates the DMCA in copying their (legally purchased) media and uses those copies in accordance with fair use doctrine? I, for one, don't see any civil claims that could hold water (though I am by no means a DMCA expert), as 17 USC 1203(a) appears to require the complainant to be injured by the DMCA violation, and no injury would result from using the circumvented material only in accord with fair use because no rational person would pay for the rights granted to them under fair use.

Which is to say that DRM may not be legally circumvented, but unless the consumer does something beyond the reach of fair use, the consumer cannot be touched. This is the same as saying that fair use excuses but does not justify copyright violation, which, I believe, is the most popular interpretation of fair use.

One vote for full independence--because the bad actor should be punished for their bad acts, not their character.

[Cyrus]

The problem is that these hypos comparing technology issues with theft and breaking and entering inevitably conceal more than they add. There is much that makes copyright unique, such as the very low costs to adding and removing DRM, the fact that DRM only blocks content you already own, etc., etc.

This comparison, though, is particularly inapt. There are a whole host of reasons that breaking DRM is not the same as *breaking into your house*. (To state the most obvious: there are serious privacy and safety implications with breaking into a house.) If you'd like a better analogy to DRM, how's this: You sell your book on the open market, but each is packaged inside a special cage with a sliding cover that only lets you view one paragraph at a time. The reviewer buys the book, and cuts the cage open in order to more easily extract quotes for his review.

Is what he did all of a sudden so awful?

[jonah gelbach]

Not to be gauche, but wouldn't horizontal integration be more appropriate for the novel? :-)

[Randy Picker]

I think that would be a horizontal merger.

[jonah gelbach]

lol

[Eric Rasmusen]

This sounds a bit like INS v AP, which I discussed a bit in my article cited below and which gets a lot more discussion in Richard Epstein's article of 1992. Can one newspaper make use of info another one laboriously collected? The tort of misappropriation could apply.

I don't see how copyright law would prohibit the posting of fair use excerpts of the stolen book. Rather, we need some more general legal principle about not being able to get benefit from a crime. Suppose I stole Joe's taxicab from his garage and hired it out for a day before returning it, costing him a day's earnings. Surely I would have to return my profits, or at least reimburse his losses, in addition to going to jail for burgling his garage.

See
International News Service v. Associated Press, 248 U.S. 215 (1918).

Richard A. Epstein, International News Service v.
Associated Press: Custom and Law as Sources of Property Rights in News, 78 Va. L. Rev. 85
(1992).

"The Economics of Desecration: Flag Burning and Related Activities." Journal of Legal Studies (June 1998) 27(2): 245- 270 (lead article). When a symbol is desecrated, the desecrator obtains benefits while those who venerate the symbol incur costs. The approach to policy used in this paper is to ask whether the benefits are likely to exceed the costs. I conclude that they usually do not. Desecration is often motivated by a desire to reduce the utility of others, which generally is inefficient. Also, if desecration occurs, people have less incentive to create and maintain symbols. Symbols, like other produced goods, need property- rights protection if the outcome is to be efficient. Laws against desecration are a good way to provide this protection, given the likely failure of the Coase Theorem and the possibility of efficient breaking of the laws. (http://rasmusen.org/published/Rasmusen_98JLS.flag.pdf).

[Ben]

All depends on the size of your wallet. If you're poor, you go to jail and are sued for infringment, then your minimum wage earnings are attached. Of course, you can't declare bankruptcy because you make too much.

[Kenny wayne]

Thanks for such interesting information. But I don't agree with the idea of horizontal merger.
Regards, Kenny. Visit my site: http://urlbounce.com/go/mFYTL