1. Although sometimes referred to as "rights" of the users of copyrighted works, "fair use" and other exemptions from infringement liability are actually limitations on the rights of the copyright owners. Thus, as a technical matter, users are not granted affirmative "rights" under the Copyright Act; rather, copyright owners' rights are limited by exempting certain uses from liability. It has been argued, however, that the Copyright Act would be unconstitutional if such limitations did not exist, as they reduce First Amendment and other concerns. Others have argued that fair use is an anachronism with no role to play in the context of the NII.

2. See 17 U.S.C. § 107 (1988 & Supp. V 1993). The judicially created doctrine, although now codified in the Copyright Act, has been described as "so flexible as virtually to defy definition." See Time Inc. v. Bernard Geis Assoc., 293 F. Supp. 130, 144 (S.D.N.Y. 1968).

3. Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 1177 (1994). As an affirmative defense, the burdens of persuasion and coming forward with evidence both must be carried by defendants to avoid liability (i.e., a copyright owner need not prove an accused use not fair, but, rather, the defendant must prove its fairness).

4. Id.

5. See id.

6. 17 U.S.C. § 107 (1988 & Supp. V 1993).

7. Harper & Row, supra note 34, at 561.

8. Justice Story stated that courts should "look to the nature and the objects of the selections made, the quantity and value of the material used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work." Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841) (No. 4,901).

9. See Sony, supra note 22, at 456 (videotaping by individuals at home of off-the-air television broadcast programming for purpose of "time-shifting" -- as distinguished from "librarying" -- held fair use).

10. See Stewart v. Abend, 495 U.S. 207, 216 (1990) (theatrical and television distribution of motion picture over objection of owner of renewal copyright in underlying short story held infringing); Harper & Row, supra note 34, at 569 ("Nation" magazine's scoop of "Time" magazine's first serial rights in President Ford's memoirs held infringing, notwithstanding newsworthiness of the account of the Nixon pardon set out therein).

11. See Campbell, supra note 229, at 1177-79 (parodic lyrics of popular song not per se unfair by virtue of commercial purpose of parody; case remanded for further factual determination).

12. See 464 U.S. at 451. The subsequent Campbell decision indicates that the presumption is strongest in cases of "mere duplication" and weakest when a second commercial comer makes a transformative use and creates a derivative work. See Campbell, supra note 229, at 1177.

13. Congress has expressly declined to enact a specific exemption from copyright liability for educational uses. See HOUSE REPORT at 66-67, reprinted in 1976 U.S.C.C.A.N. 5680. Cases holding reproduction of an entire work as a fair use are few. In Haberman v. Hustler Magazine, Inc., 626 F. Supp. 201, 212 (D. Mass. 1986) a magazine's reproduction of an artist's post cards was found to be fair use because there was no market harm.

14. The consequences of denying a fair use defense in certain legitimate educational contexts are far smaller than in the commercial context. Under the provisions of Section 504(c)(2), statutory damages (damages that may be imposed without proof of the quantum of actual harm to the copyright owner) may not be imposed against a nonprofit educational institution, its employees or agents -- when acting within the scope of their employment -- in respect of copying that they performed with reasonably based grounds for believing the copying was fair use. 17 U.S.C. § 504(c)(2) (1988).

15. Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983).

16. Encyclopaedia Britannica Educ. Corp. v. Crooks, 558 F. Supp. 1247 (W.D.N.Y. 1983).

17. Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991).

18. See Twin Peaks Prods., Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1376 (2d Cir. 1993).

19. See New Era Publications Int'l, ApS v. Henry Holt & Co., 873 F.2d 576 (2d Cir. 1989), cert. denied, 493 U.S. 1094 (1990).

20. See National Rifle Ass'n v. Handgun Control Fed'n, 15 F.3d 559, 562 (6th Cir. 1994).

21. See New Era Publications Int'l, ApS v. Carol Publishing Group, 904 F.2d 152, 157 (2d Cir. 1990).

22. See Harper & Row, supra note 34, at 569 (taking of some 300 words held infringing).

23. 3 NIMMER ON COPYRIGHT § 13.05[A] (1993) (footnotes omitted).

24. See Stewart v. Abend, supra note 236, at 238.

25. Cf. American Geophysical Union v. Texaco, Inc., 37 F.3d 881, 895 (2d Cir. 1994) ("analysis under the fourth factor must focus on the effect of [defendant's] photocopying upon the potential market for or value of these individual articles"); Salinger v. Random House, Inc., 811 F.2d 90, 99 (2d Cir.), cert. denied, 484 U.S. 890 (1987) (protecting potential market for author's letters notwithstanding author's profound disinclination ever to publish them).

26. See Sony, supra note 22, at 443-47 (plaintiffs "failed to carry their burden with regard to [the harm of] time-shifting . . . . Harm from time-shifting is speculative and, at best, minimal").

27. See Harper & Row, supra note 34, at 562.

28. See Stewart v. Abend, supra note 236, at 238.

29. See Campbell, supra note 229, at 1173.

30. The inability of our common law system to provide guidance covering every possible permutation of behavior is not necessarily a weakness. By permitting courts to reach decisions on a case-by-case basis, our system permits both necessary gap-filling and jurisprudential evolution without requiring repeated pleas to Congress for additional elaboration.

31. See supra notes 210-16 and accompanying text (discussing Playboy and MAPHIA decisions).

32. Playboy, supra note 211, at 1558.

33. MAPHIA, supra note 216.

34. MAPHIA, supra note 216, at 688.

35. See infra pp. 83-84.

36. 802 F. Supp. 1 (S.D.N.Y. 1992), aff'd, 37 F.3d 881, 892 (2d Cir. 1994). The Court of Appeals noted, with respect to Texaco's argument that such photocopying was "reasonable and customary," that "whatever validity this argument might have had before the advent of . . . photocopying licensing . . . the argument today is insubstantial." This suggests that, together with Section 108's proscription on most "systematic" photocopying (discussed below), the precedential value of Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973) (Federal libraries not liable for infringement where no licensing option existed as between full price subscription to scientific journals and holding of fair use) may be reduced.

37. Existing guidelines cover certain copying by and for teachers in the classroom context, the copying of music for educational purposes, the copying of relatively recent journal articles by one library for another, and the off-air videotaping of educational broadcast materials.

38. See HOUSE REPORT at 68-74, reprinted in 1976 U.S.C.C.A.N. 5681-88.

39. See discussion of the Working Group's proposed amendments to Section 108 infra pp. 225-27.

40. The laws of economics and physics protect producers of equipment and tangible supplies to a greater extent than copyright owners. A university, for example, has little choice but to pay to acquire photocopy equipment, computers, paper and diskettes. It may, however, seek subsidization from copyright owners by arguing that its copying and distribution of their works should, as a fair use, not be compensated.

41. Hereinafter, the term "library" will be used to refer to a library or archives, or any of its employees acting within the scope of their employment.

42. See 17 U.S.C. § 108(a) (1988). Section 108 limitations are additional exemptions provided specifically for certain libraries. Libraries, of course, may also take advantage of fair use privileges or any other exemptions to the Copyright Act (see 17 U.S.C. § 108(f)(4) (1988)), but the exemptions in Section 108 generally exceed fair use. See generally Report of the Register of Copyrights on Library Reproduction of Copyrighted Works (1983).

43. See 17 U.S.C. § 108(a) (1988).

44. See 17 U.S.C. § 108(g) (1988).

45. 17 U.S.C. § 108(h) (1988).

46. See 17 U.S.C. § 108(b) (1988).

47. HOUSE REPORT at 75, reprinted in 1976 U.S.C.C.A.N. 5689.

48. 17 U.S.C. § 108(c) (1988); see HOUSE REPORT at 75, reprinted in 1976 U.S.C.C.A.N. 5689.

49. 17 U.S.C. § 108(d) (1988).

50. Id.

51. 17 U.S.C. § 108(e) (1988).

52. Id.

53. See 17 U.S.C. § 108(f)(3) (1988).

54. 17 U.S.C. § 108(g)(2) (1988).

55. See H.R. REP. NO. 1733, 94th Cong., 2d Sess. 72-73 (1976), reprinted in 1976 U.S.C.C.A.N. 5810, 5813-14 (hereinafter CONFERENCE REPORT).

56. Id. at 72, reprinted in 1976 U.S.C.C.A.N. 5813.

57. See discussion supra pp. 87-88.

58. See discussion supra pp. 87-88.

59. See T.B. Harms Co. v. Jem Records, Inc., 655 F. Supp. 1575, 1582 (D.N.J. 1987); Columbia Pictures Indus., Inc. v. Aveco, Inc., 612 F. Supp. 315, 319-20 (M.D. Pa. 1985), aff'd, 800 F.2d 59 (3d Cir. 1986).

60. 17 U.S.C. § 109(a) (1988).

61. See 17 U.S.C. § 109(b)(1)(A) (Supp. V 1993). The prohibition with respect to record rental does not apply to nonprofit libraries or nonprofit educational institutions for nonprofit purposes. Id. In addition, a nonprofit educational institution may transfer possession of a lawfully made copy of a computer program to another nonprofit educational institution or to faculty, staff and students. Id. Nonprofit libraries may also lend a computer program for nonprofit purposes if each copy has a copyright warning affixed to the package. 17 U.S.C. § 109(b)(2)(A) (Supp. V 1993). The prohibition with respect to computer program rental does not apply to a computer program "which is embodied in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product" or "a computer program embodied in or used in conjunction with a limited purpose computer that is designed for playing video games and may be designed for other purposes." 17 U.S.C. § 109(b)(1)(B) (Supp. V 1993).

62. K. Corsello, The Computer Software Rental Amendments Act of 1990: Another Bend in the First Sale Doctrine, 41 CATH. U. L. REV. 177, 192 (1991).

63. See H.R. REP. NO. 98-987, 98th Cong., 2d Sess. 2 (1984), reprinted in 1984 U.S.C.C.A.N. 2898, 2899 (justifying the Record Rental Amendment of 1984).

64. See 17 U.S.C. § 109(a) (1988) ("the owner of a particular copy or phonorecord . . . is entitled . . . to sell or otherwise dispose of the possession of that copy or phonorecord"); HOUSE REPORT at 79, reprinted in 1976 U.S.C.C.A.N. 5693 (under the first sale doctrine in Section 109 "the copyright owner's exclusive right of public distribution would have no effect upon anyone who owns 'a particular copy or phonorecord lawfully made under this title' and who wishes to transfer it to someone else . . .") See also, e.g., Columbia Pictures Indus. v. Redd Horne, Inc., 749 F.2d 154, 159 (3d Cir. 1984) ("first sale doctrine prevents the copyright owner from controlling the future transfer of a particular copy once its material ownership has been transferred").

65. HOUSE REPORT at 79, reprinted in 1976 U.S.C.C.A.N. 5693 (under the first sale doctrine, "the owner of the physical copy or phonorecord cannot reproduce or perform the copyrighted work publicly without the copyright owner's consent").

66. If the reproduction is lawful under another provision of the Copyright Act, the transmission would likely not be an infringement. See infra p. 95.

67. See HOUSE REPORT at 79, reprinted in 1976 U.S.C.C.A.N. 5693.

68. 17 U.S.C. § 109(c) (1988).

69. Section 109(e) reversed the decision in Red Baron-Franklin Park, Inc. v. Taito Corp., 883 F.2d 275 (4th Cir. 1989), cert. denied, 493 U.S. 1058 (1990), which held that video games could not be operated in an arcade without the permission of the copyright owner because such operation entailed violation of the copyright owner's exclusive rights to perform and display the work publicly. Section 109(e), however, does not allow the public display or performance of any other work of authorship embodied in the audiovisual game if the copyright owner of the game is not also the copyright owner of the other work. See 17 U.S.C. § 109(e) (Supp. V 1993).

70. See discussion of rental rights with regard to phonorecords and copies of computer programs supra notes 287-89 and accompanying text.

71. See 17 U.S.C. § 110(1) (1988).

72. See 17 U.S.C. § 110(2) (1988).

73. Section 117 of the Copyright Act provides:

Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

17 U.S.C. § 117 (1988 & Supp. V 1993). Any identical copies made in accordance with Section 117 "may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program." Adaptations made may be transferred only with the authorization of the owner of the copyright in the original program. Id.

74. See 17 U.S.C. § 110(3) (1988).

75. See 17 U.S.C. § 110(6) (1988).

76. See 17 U.S.C. § 110(7) (1988).

77. See 17 U.S.C. § 110(8), (9) (1988).

78. See 17 U.S.C. § 110(10) (1988).

79. See 17 U.S.C. § 110(5) (1988).

80. See, e.g., the decision in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975), which was essentially codified in Section 110(5) (owner of a small food establishment exempt from infringement liability for the performance of copyrighted works via a radio and four small ceiling speakers). See also Sailor Music v. The Gap Stores, Inc., 516 F. Supp. 923 (S.D.N.Y.), aff'd, 668 F.2d 84 (2d Cir. 1981), cert. denied, 456 U.S. 945 (1982); Rodgers v. Eighty Four Lumber Co., 617 F. Supp. 1021 (W.D. Pa. 1985); Springsteen v. Plaza Roller Dome, Inc., 602 F. Supp. 1113 (M.D.N.C. 1985).

81. See 17 U.S.C. § 112(a) (1988). This limitation of the copyright owner's reproduction right is applicable only if:

(1) the copy or phonorecord is retained and used solely by the transmitting organization that made it, and no further copies or phonorecords are reproduced from it; and

(2) the copy or phonorecord is used solely for the transmitting organization's own transmissions within its local service area, or for purposes of archival preservation or security; and

(3) unless preserved exclusively for archival purposes, the copy or phonorecord is destroyed within six months from the date the transmission program was first transmitted to the public.

Id.

82. See 17 U.S.C. §§ 111, 119 (1988 & Supp. V 1993). These provisions are referred to as "compulsory licenses" because under such provisions, copyright owners are compelled to grant the licenses. No license agreements are signed and the terms of such licenses are set forth in the statute; the copyright owner cannot object to the use of the work and must be satisfied with the license fees collected under the statute, which are distributed among all of the affected copyright owners by arbitrators impaneled by the Librarian of Congress.

83. The Copyright Office issued a regulation in 1992 stating that a cable system is a facility that both receives and transmits signals from within the same state. See 37 C.F.R. § 201.17(k) (1994). This ruling makes clear that Section 111 should not be applicable to any entities other than community-based cable systems. Moreover, in Satellite Broadcast Networks, Inc. v. Oman, 17 F.3d 344 (11th Cir.), cert. denied, 115 S. Ct. 88 (1994), the 11th Circuit upheld the regulation, finding it valid, enforceable and to be used by courts when determining whether a facility qualifies as a cable system. Since facilities used to transmit works through the NII will generally be inherently capable of receiving and transmitting outside any particular state, these facilities will not qualify for the cable compulsory license.

84. A "satellite carrier" is defined as "an entity that uses facilities of a satellite service licensed by the Federal Communications Commission to establish and operate a channel of communications for point-to-multipoint distribution of television station signals . . . ." See 17 U.S.C. § 119(d)(6). Unless the NII transmission occurs through a satellite service licensed by the FCC for the statutorily prescribed purposes, the compulsory license provisions would not be applicable.

85. See 17 U.S.C. § 116 (Supp. V 1993). This compulsory license may only be invoked if private negotiations fail to produce a consensual license.

86. See 17 U.S.C. § 118 (1988 & Supp. V 1993).

87. See 17 U.S.C. § 115 (1988).

Ladas & Parry Home Page
National Information Infrastructure - Copyrights

Revised 4/13/96
http://www.ladas.com/NII/
Contact Ladas & Parry