shouting loudly

Internet Researchers and Copyright: Part II

In the previous post, I provided the context of my AIR-L debate about the finer contours of copyright. Here, I’ve added some further thoughts. Comments are very welcome.

Part II: The Response

Professor Burk’s claim that I got it “pretty much wrong” is just inaccurate. Let’s revisit the four factors in order.

1. Purpose and character of the use

We all agree that the first fair use factor supports a finding of fair use. Scholarship and research are generally fair uses; unless the other three factors all weigh heavily against a fair use, this will generally win.

2. Nature of the copyrighted work

I’ve revisited the case law and secondary literature, and I’ll concede that the question of whether a quoted work is commercially valuable is not generally discussed as relevant to the second factor. (The statute suggests that it goes here, but the courts stuff it into 4.) Correction appended.

All the same, this factor would still favor a finding of fair use in this circumstance. Works that are less expressive, such as scholarship, newspaper articles, and political pamphlets, are subject to less protection than highly expressive works such as fiction, poetry, and visual arts.

For instance, I have reproduced two of Prof. Burk’s entire posts as part of an academic discussion. This is still almost certainly fair use—despite the third factor, “amount and substantiality of the portion used,” suggesting otherwise. It would be less defensible for a critic to reproduce an entire short story as part of a similar criticism. The fact that the posts have all been published—made public, albeit in electronic form—also favors a fair use finding on this factor.

3. Amount and substantiality of the portion used

I’m sure we also all agree that reproducing only the amount necessary to make one’s point in said scholarship is also helpful toward a finding of fair use—not to mention good writing.

4. Effect upon the potential market for, or value of, the copyrighted work.

My application of the listserv’s non-commercial nature to the fourth factor is neither irrelevant or tautological. First and most obviously, consider that there is no problem of market substitution; despite implications to the contrary, this is an important consideration in the fourth factor. See, e.g., Campbell v. Acuff-Rose, 510 U.S. 569, 591 (1994):

But when, on the contrary, the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred. Indeed, as to parody pure and simple, it is more likely that the new work will not affect the market for the original in a way cognizable under this factor, that is, by acting as a substitute for it (‘superseding [its] objects’).

Nobody would need to pay to see authorized archives of the original listserv posts, which destroys any claims of monetary value (and thus, of market substitution) in the first market.

Regarding the secondary licensing market: There is obviously none. This is a subset of the claim of no commercial market, which is what I said in the first place.

The “no secondary market” claim is a matter of elaboration, not correctness. Further, the implication that market harm is really a question of the secondary licensing market is misleading, incorrectly implying that we need not consider the possibility of primary market harm via substitution, which we must. Further, one need only consider this question when secondary licensing is “traditional, reasonable, or likely to be developed.” American Geophysical Unoin v. Texaco Inc., 60 F.3d 913, 930 (2d Cir. 1994).

In any case, a critical reuse would outweigh any lost licensing revenue even if there was a secondary market in listserv posts. As the Campbell court further explains, “there is no protectible derivative market for criticism.” Id. at 592. Thus, the question of whether there is a functioning secondary market is wholly irrelevant.

In other words, here’s my score:

Factor 1: 100% correct
Factor 2: Right, but in large part for the wrong reason. Let’s call it 25% correct. (Burk might give me zero here.)
Factor 3: 100% correct
Factor 4: I would argue 100% correct (“no commercial value” is a true claim). Burk probably wants to ding me half for not specifying that there is no secondary market, even though Campbell and American Geophysical remind us that this is irrelevant.

Thus, my overall score on the factors is at least (100 + 0 + 100 + 50) / 4 = 62.5% correct; I’d give myself a score of (100 + 25 + 100 + 100) / 4 = 81.25% correct. Furthermore, I got the final answer (almost certainly fair use) 100% correct.

In short, the claim that “Bill’s fair use analysis is pretty much wrong” is, well, pretty much wrong. Right on three out of four—and on point regarding the final outcome—sounds like “pretty much right” to me.