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 Note in passing that the copyright cases used to make a distinction between published and unpublished works with more limited fair use of unpublished works, but Congress amended that statute to put published and unpublished works on even footing.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.