Maristella Feustle: All right, I think we’ll go ahead and get started. Welcome again to, to everyone joining us today. This is the third of three sessions in a series on copyright, particularly as it as it pertains to radio, but also more broadly to, to recorded sound. This is uh uh sponsored by the Radio Preservation Task Force, which is a project of the, the Library of Congress. And uh and today we have with us Brandon Butler who is uh currently the Director of Information Policy at the University of Virginia. Uh He serves as an expert consultant to UVA librarians, to groups and individuals within the university and to national and international efforts focused on questions relevant to, to copyright and surrounding issues. Uh He provides guidance and expertise to the libraries. He develops plans and strategies to, to address the challenges that it faces in the leading university research library. And of course, those are wide widely, those issues are widely shared across the, across the profession and across archival collections. Uh He serves as an advocate for creative legal strategies to help the university library advance the institution’s mission to record, preserve and disseminate the results of intellectual discovery and creative endeavor. Uh also as the director of Public Policy Initiatives at ARL, the Association of Research Libraries. Uh He represented the association in a variety of policy matters and was co-principal investigator of a project to develop and promote what became the, the well known code of best practices and fair use for academic and research libraries. And uh today, the the subject for discussion is, is again a fair, fair use and overcoming risk aversion. So, um, um, welcome to, to Brandon and, uh, we’re, we’re delighted, we’re delighted you’re here and looking forward to hearing your talk.
Brandon Butler: Excellent.
Maristella Feustle: Oh, sorry, I just, uh, yeah, I just did a, uh, a global mute and it does the hosts too.
Brandon Butler: Totally. No, that’s always good, uh, good Zoom hygiene at the very beginning. Um So, uh, yeah, it’s, I’m thrilled to be here and to speak with you all today. Um This is, you know, uh I’m a, I’m a indie rock music nerd, uh, lifelong, uh, you know, kind of sound recording enthusiast. So, uh, I love talking in particular about recorded sound and copyright. Um, so, uh, I appreciate the chance to speak with you all today. I’m gonna share my screen and, um, and get started and I, what I want to talk to you today about is, is how to do fair use, uh, without being fearful about it. Um, and how to overcome the kind of risk aversion that is too often associated with um taking advantage of what is ultimately actually a, a right uh that, that we have um uh to make fair uses. It’s an important legal right. That’s just as legitimate as the copyright uh rights of, of uh authors and others. So, um here’s a, a, an overview of what I’m gonna talk about first, I’ll sort of introduce the fair use doctrine. What is it, how does it basically work right now? Um And then I’ll talk about the strategy for overcoming fear that I am most familiar with, which is the development of best practices statements, um, which has been a really successful sort of movement, um, that’s been iterated across, uh, uh, more than a dozen communities to try to, you know, enunciate fair use values and, um, announce a kind of a set of fair use practices that the community endorses as legitimate.
Brandon Butler: I’ll talk about why those things work and how they’ve worked so far in some of the communities that have used them. And then finally, I’ll talk about some other kind of risk reducers and perspective shifters around fair use that I find helpful when I talk to people about fair use and why you shouldn’t be fearful when you take advantage of it. And then, um, we can talk. Um, so I will try to move, uh, quickly without talking too fast here. Um, so first, right, you can’t talk about fair use or I can’t talk about fair use without talking about the purpose of copyright. And uh this is um an artist’s rendering of the constitution. Uh article one section uh uh article one section eight, clause eight of the constitution. You know, it’s the part where the Congress shall have the power to raise armies and tax people and regulate interstate commerce and blah, blah, blah, blah. And uh somewhere in that list, you will find Congress shall have the power to promote the progress of science and the useful arts by securing for limited times to authors and inventors, the exclusive rights in their writings and discoveries, right? Um So that’s, that’s the constitutional basis for copyright. And it’s really interesting because you’ll hear people say, you know, sort of like copyright is, is, is constitutional, it’s a constitutional right, kinda sorta right? But if you actually read the text, which I I like to do that, um you will see Congress has the power to promote the progress of science, right? That’s what Congress has the power to do and it can do that by securing for limited times, et cetera, et cetera, right? Um And so the the the upshot of that structure, you know, which the scholar scholars of copyright sometimes call this the the two by structure of, of the clause. It means that the purpose is to promote progress and securing limited rights is a means to an end, right? And so the Supreme Court put it uh uh put a point on it in the 1970s when they said private motivation, that is the author’s motivation to secure a copyright and make money. Or, you know, the Disney Corporation’s motivation to monetize copyrights must ultimately serve the cause of promoting broad public availability of literature, music and the other arts, right? So copyright is only working when as an end result of the copyright system, the American people have the broadest possible access to culture, right? And if copyright starts to undermine that access and limit access in a way that doesn’t uh that doesn’t serve the public interest, then it’s straying from its constitutional foundations. And so, and what that means is that copyright is a, is actually a complex system that has exclusive rights as a part of the bargain, but it has rights of users as the other part of the bargain. And that that rights of users part is just as important because again, it serves the same umbrella purpose of promoting broad public access.
Brandon Butler: And so fair use isn’t crucial is just as crucial just as central to the copyright system as the exclusive rights of authors. And so what is fair use? Well, fair use is this broad flexible open-ended right to use in-copyright works without permission or payment. And what that means, what I mean by broad flexible open-ended. There’s no um if you go to to other, other countries, if you look at the laws of other countries, there are, um, there are similarish provisions to fair use in, in many other countries. But, but most of them are sort of closed ended lists. Right. And so they’ll say sort of, you know, um, if you’re, if you’re engaged in scholarship, criticism or education, uh, or news reporting then you can do fair use. And that is the, that is, those are those four things and if you’re not doing those four things, you can’t have fair use, right? You can’t have fair dealing, you can’t have whatever the sort of right is, but fair use is open ended. It uses uh sort of flexible language like such as, you know, so fair use for purposes such as scholarship, criticism, comment, um is, is not an infringement of copyright. And so what that means is that judges have this very flexible power to on a very case-by-case basis, permit unauthorized unpaid uses. Um uh in cases where that use actually supports the public interest and the, and the, and the true umbrella goal of copyright, um fair use is as old as copyright itself. It was created by judges. Um It’s part of the sort of Anglo-American common law tradition whereby judges could uh make stuff up um to, to put it not to fine a point on it. Um When judges would hear cases, uh someone would come before them and say, you know, this guy, this, this this, this person infringed my copyright and the judge periodically, uh, as the fair use law was developing, judges, you know, from time to time would say, you know, technically, yes, this looks like an infringement. It meets the test of what, you know, would be an infringement and yet it seems good, you know, it seems like this is good for the public. It seems like this is not the kind of thing that copyright should actually stop. And so I’m gonna let it go. This might be the time to disclose that I’m dealing with the early days of the COVID virus right now. Um And so I apologize for my occasional coughing. Hopefully, I’m still lucid enough to give this talk. Thanks for bearing with me. But so it was a judge made doctrine, right? Judges, judges sort of created it on the, on the, uh, over time and evolved it and it eventually evolved into this four factor balancing test which was written into American law in the late 1970s, um, but written into the law in a flexible way. So that judges still have broad leeway to apply these four factor balancing factors, um, uh, in a flexible way and to take note of changing circumstances in the world, right? So these are the four factors, right? The, the, the, the statute says judges, uh, fair use is not an infringement.
Brandon Butler: Uh, anyone who makes fair use that’s not infringing, you’ll know if the use is fair by thinking about these four factors and weighing them together. Uh uh uh And these are the factors, right? What is the, the purpose or character of the use? The reason for the use is the way I shorthand that. What kind of work is being used? Uh How much is used? And what is the effect of the use on the ordinary traditional reasonable market for the, for the work that was used? Um, you may notice something about these four factors. They’re not enough heh they’re just not enough. Um, they don’t settle the issue for you. Right? You can, you can consider those four factors and you still won’t know if a use is fair. Um, uh, the, the, the analogy I sometimes use is, you know, it’s as if I told you, you know, go out in the woods, uh, and find me a, a bear and you’ll know if something is a bear by factoring in, uh, the color of its fur, its size, its shape and what it smells like. And if that’s all I tell you, you know. Right, you can say, well, ok, so it’s big, it’s brown, smells bad. Um, you know, et cetera. You don’t know if that’s a bear or not, right? Like you’ve considered all the factors, but you need to know in light of what, right? What do these factors need to say to me in order for me to know that something is fair and for a little while, actually, unfortunately, in the, uh, seventies and eighties, after these factors were codified, there was some confusion in the courts. Um, and one of the biggest sources of, uh, sort of legal problems or problems in getting good legal advice about fair use is that if you have a, a lawyer who has not been keeping up with fair use law, who sort of went to law school in the eighties, right? Um, you know, your general counsel, generation of lawyers, um, if they’ve not been keeping up with fair use law, they might still think fair use looks like it did in the seventies and eighties, which was pretty confused, the, the courts, um, fell into this confusion for a while, um, and couldn’t quite make sense of the factors, but there’s good news, um, there’s good news, uh, uh, since then. So first of all the judges, the judges in the federal courts have, have really embraced fair use and the kind of balancing the balancing feature that fair use plays in, in copyright, especially as copyright has gotten longer and stronger. Right.
Brandon Butler: So over the course, certainly of, of my lifetime and, and I’m sure many of yours, right. Copyright term has gotten extended, you know, 20 more years in the Sonny Bono Term Extension Act in the late nineties. Um, but, you know, but of course it’s got, it was extended many times before that, right. Copyright used to last for sort of 14 years and now it lasts for essentially a century and, and more. Um so as copyright has gotten longer and stronger judges have actually generally, um looked, uh looked for ways to counterbalance the length and strength of copyright. And so fair use has grown in its importance over the last few decades Uum uh accordingly. The other thing that’s important is that the Supreme Court has said in, in two separate decisions that fair use is a, is a kind of First Amendment safety valve in the Copyright Act, right? So copyright would be a kind of private censorship law, if not for fair use. Uh and that would be inconsistent with the First Amendment. And so you need fair use in order to ensure that copyright doesn’t come into conflict with the other values in the constitution. Um So fair use has this kind of First Amendment valance which, you know, again judges love the First Amendment. And then sort of most importantly, the Supreme Court in the early 1990s kind of got its act together and, and helped all of the federal courts kind of um organize themselves a little better in terms of thinking about those four factors, right? So in a case in the early 1990s called Campbell v Acuff-Rose, the Supreme Court embraced uh a version of the fair use calculus that centered largely around the concept of transformative use. And this was a, a concept that was created by a a an appellate court judge named Pierre Laval in a law review article in the Harvard Law Review. Um and Laval was one of these judges in the 1980s who was wrestling with fair use and he kept getting reversed. Uh Back then, he was a district court judge and he kept saying like this is fair use. And the, and the appellate court would say no, it’s not. And he would say this is not fair use. And the appeal court would say yes, it is. And he was really sort of tearing his hair out like I can’t, there’s no consistency in this doctrine. So he wrote a law review article where he tried to really make sense of fair use.
Brandon Butler: And uh and he, his article was able to persuade the Supreme Court. And so in the Supreme Court’s opinion, in Acuff-Rose, they really uh centered Laval’s theory, which was uh which was centered around this concept of transformative use, right? So, taking an existing work and using it or a portion of it for a new purpose or in a new context and in a way that adds insight or uh makes it available to a, a different audience for a different reason from its original kind of creative or economic purpose, right? So it’s not merely sort of the, the opposite of fair use is a, is kind of substitutional use or unfair competition is one way to think about it, right. It’s uh uh I’m on the market and I’m selling copies of your work and competing with you in that market. Well, that’s not fair, right? Copyright is meant to allow the copyright holder to control that market and, and monetize their work. But if you’re not doing that right, if you’re engaged in a different kind of activity altogether, if you’re engaged in scholarship, criticism, et cetera, right? You’re a different part of the cultural landscape from the part that’s being economically and culturally occupied by the creator, then fair use should give you the leeway to occupy that part of the cultural ecosystem. And uh again, remembering copyright’s kind of constitutional purpose of, you know, fostering a flourishing cultural landscape, promoting the progress of science, which capital S science back in the founding era meant learning, right? Education access to information. So if your use does fit that category of a transformative use, a use that is not merely unfairly competing, but in fact doing something different, well, then the only question becomes, is the amount that you’re using appropriate to that transformative purpose? And if it is uh scholars have shown in a, a series of articles that have gotten stronger and stronger over time, uh legal scholars have examined the fair use cases after Campbell, and the most recent one was called “Is Transformative Use Eating Fair Use?”
Brandon Butler: And the answer was yes. And I think that’s great. It’s good because transformative use is coherent. It is a framework that we can understand. It makes the factors make sense. And uh and that, that a that article uh “Is Transformative Use Eating Fair Use?” came out like last year. It is brand new and it analyzes the case law right up until the most recent Supreme Court fair use case. So you can uh you can take it to the bank that transformative use is really central. So one more thing I wanted to say about fair use for the benefit of this audience, um which is the pedigree of preservation in fair use is deep and strong. So there aren’t cases about it because people don’t sue libraries, knock on wood, right? I mean, you know, uh with, with a few recent exceptions, um high profile exceptions, people don’t sue libraries for preserving things. And so there’s not case law, you can’t go and say, well, here’s uh you know, um uh uh here’s a case that shows that preservation is fair use. People don’t sue libraries, but also it’s just so, uh it’s well entrenched actually. So if you look at the, this is from the legislative history of the Copyright Act, the 1976 the last major overhaul of the act, you can see it’s the House Judiciary Committee’s report on the act says, um uh back then they were really interested in like, right preserving the old nitrate film um efforts of the Library of Congress, the AFI and other organizations to rescue and preserve this irreplaceable contribution to our cultural life are to be applauded and making duplicate copies for purposes of preservation, certainly falls within the scope of fair use, right? So, so there’s a real pedigree for preservation as a fair use. This is not something we’re kind of making up in 2022. This goes back. Um The people who codified fair use in 1978 uh had preservation in mind and it’s, they don’t really mention a lot of other fair uses like preservation is the paradigm case for a fair use.
Brandon Butler: OK. So let me talk a little bit about best practices. Um And I’m gonna have to speed up, I’m go, I’m not making enough progress here. So the best practices codes um I’ve been blessed to work on these. Uh I’ve done several of them now um since 2010 when I was uh first started working 2009 when I first started working with ARL. Um And there are a ton of them. These are just a few examples, documentary filmmakers were the first community to do it uh back in 2010. Um But since then, communication scholars, poets, and poetry scholars, uh the dance community, collections of dance related materials, open courseware, and of course, the ARL code that I worked on. And since then, there have been uh five or 10 more uh after the ARL code, including one I’ll talk about near the end of this segment about software preservation. So lots of communities have done these best practices codes. What are they, how does the, how do they come to be? Well, uh Peter Jaszi and Pat Aufderheide are the kind of uh originators of the process. And they describe it in detail in their book “Reclaiming Fair Use.” Um But the basic idea is that there you need a trusted organization, uh a convenor uh in a way that would sort of sponsor, steer and endorse the best practices. So you need somebody like ARL, right? Um or in the documentary film community, it was the, you know, International Documentary Association IDA. Um And so you need some kind of umbrella organization that will sponsor it, that will help bring it to life and give it legitimacy. Um And then with that organization’s kind of blessing, you start off with confidential interviews to find out what, what are the situations where fair use is, is potentially useful? Meaning what are the situations where people are routinely um hitting a kind of copyright wall when they’re trying to do their work? Right? And they feel like this is something important, this is something I should be able to do, but I’m being told that copyright won’t let me do it. Um And you know, important work is not getting done because there’s uncertainty about what copyright will let me do. Once we identify those kinds of problem areas, recurring problem areas in core kind of mission-critical um parts of the work that you do, then there are like small group deliberations about those problem areas to develop a kind of consensus about how fair use could apply in those areas, right? And so we start from the big principles of transformative use, you know, how is this different, how is your use culturally beneficial and not a substitute? Right? And we reason about that and we think about, OK, so what could you do to keep your use within the bounds of that transformative rubric? Right. And so then we kind of try to figure out, you know, how can we describe what the community thinks is legitimate in a set of principles that apply to these recurring scenarios and we include limitations that say, you know, if you do this much, you know, if you, if you, if you’re gonna invoke this principle, then you need to be sure not to, you know, um use it in this way, right? Or um this principle only goes so far. Um So each principle is usually accompanied by some limitations and some uh some recommended kind of best practices within the principle. Um Once we have a kind of consensus from the community, though there’s always a a kind of panel of independent legal experts who review the statement and put a kind of seal of approval and it’s not their job to say, you know, um, this is exactly the advice I would give. Right? Um, because every lawyer has it’s kind of a unique um personal kind of interpretation of a fair use and they might, they might have, they might have trimmed things over here a little differently or over there a little differently. But I think every expert can acknowledge that there’s a zone of reasonable practice. Right? And this may not be exactly what I would do, but a reasonable lawyer could certainly endorse this approach, right?
Brandon Butler: And so we uh we get that kind of a a a sign off from 3 to 4 kind of external reviewers and then we can publish the code. All of the codes live online. They’re collected at the, at the Center for Media and Social Impact um which is Pat Aufderheide’s uh center that she started at American University. And I’m a huge fan of reasoning by analogy and you can go and look at those codes and find a community that sort of looks like yours. And again, I think software preservation might be a good one for, for this group to look at in addition to the ARL Code um and, and get some insights as to how fair use might apply to what you do. The documentary filmmakers code is a good example of how these best practices can really succeed. Uh It’s the oldest code. And so it’s had the longest uh kind of time to take hold and the successes are, are remarkable. Um TV programmers like PBS, you know, Frontline um uh uh uh um um Independent Lens. Um those kind of documentary programs that uh that are really the, the lifeblood of, of doc filmmakers. They started airing the kinds of kinds of movies that they wouldn’t air before. Once the best practices code came out, the films got made, that couldn’t get made before um after the code came out. The probably the most important development was that insurance companies, every film has to get an insurance policy that says, you know, uh that covers them in case they made a mistake. Uh with all of the because films have so many legal, you know, tangle of legal obligations, they have to satisfy um every film gets an errors and omissions insurance policy and the insurers started to insure for fair use. And they said, you know, if you get a legal opinion from a lawyer that says everything in this film is fair, we will insure you uh based on that, um which they didn’t, it used to be, they wouldn’t do that, they would only insure you if you cleared and got permission for everything in your film, anything that you didn’t get permission for, they wouldn’t insure that, but now they insure fair use. And so lawyers have used the statement to build their own practices, giving people advice on how to take advantage of fair use um including me, I advise filmmakers all the time now, based on these principles, in part.
Brandon Butler: What the codes can do as well is they uh provide a kind of input for risk management. They help, they help uh practitioners put legal risks into perspective and think about the the mission risk, which I’ll talk about in more detail later on. But you know, balancing the uncertainty that they may feel about fair use against also the importance of doing your job and doing your work and getting things done, right? Um The codes help people think through in that, in that framework, um codes represent the views of practitioners in a conversation that often can feel like uh one sided. Um You know, you can say this is what my community believes is legitimate. Um And, and, and a and a and that gives you a little bit more voice in a conversation that sometimes can feel like your voice doesn’t matter, right? In a conversation with a a a general counsel or, or a leader or a gatekeeper. Um and also can provide a kind of groundwork for solidarity in the community, right? So if everyone has a kind of set of agreed principles, then you won’t find yourself, um you know, doing something and, and, and someone else in the community saying, oh, that seems risky, right? Um Because we’ve all kind of talked about this, right? We’ve had a, we’ve had a, a consensus that we’ve developed and so there’s solidarity in the community about what’s OK. The best practices also can be a much better front line kind of guide for practitioners versus a lot of the outdated kind of guidelines and rules of thumb around fair use. You know, um if you’ve, if you’ve been working in libraries or archives for, for the last, you know, 10, 15 years, um you’ve surely encountered guidelines like, you know, well, 30 seconds is fair use or, you know, uh 10 pages is fair use or 20% is fair use and none of that stuff is real. Uh uh It’s all sort of made up and, and, and very outdated. A lot of it goes back to the seventies and eighties before the transformative term that I described to you. Uh And so it’s, it’s really um useless, but it’s all we had for a long time. And the best practices approach can provide a kind of replacement for those bad old uh guidelines. Um Often if you’re engaged in kind of a, a big project, you can get, you can develop a kind of legal strategy for that project, right? You can maybe work with your counsel or work with uh uh people in your library that have some copyright expertise and say here’s how we’re gonna do this project, but sometimes you’re just doing kind of a one-off thing and you don’t have the time or the resources to develop a kind of overarching strategy. Again, the best practices can tell you well, if it’s just one of these five common scenarios, here’s what, here’s what you do, you know. And, and that makes it so you don’t feel like you have to go, um, develop, you know, get a memo from your copyright librarian for every time you touch something that’s, that’s protected by copyright. Um, and again, uh it’s really powerful because these, these statements address these common recurring uh scenarios.
Brandon Butler: Another great use for the, for the best practices. And again, you can, you can do this by analogy with, with all of the different best practices documents that are out there is that they are full of rhetoric, you know, they’re, they’re an argument. I mean, ultimately, these are persuasive documents, they are meant to help persuade the gatekeepers and the people who are in a position to say no. And so in the, the front matter, you know, every code has a kind of introductory chapter that says here, it’s the, it says essentially the kind of stuff I just told you about the history of fair use. And it’s meant to catch people up who may not, again, who may not have been paying attention to how fair use works now. And so it’s, it has this educational uh benefit. Um And then within each principle, the way they’re written ah you know, the the facilitators, people like me, Peter Jaszi, you know, we helped to translate the the consensus in the community into a, a kind of a quasi legal argument. You know, here’s why this is fair use. Uh Here’s what we heard from the community about why they think this is legitimate but put into terms that should look more familiar to an attorney who’s familiar with fair use. And so the, the, the beginning of each principle has that kind of miniature fair use argument, which can be helpful. And then whenever, whenever a best practices code comes out, we try to include sort of supporting materials online FAQs, quizzes, you know, uh infographics and all that material helps to kind of build literacy and confidence in the community.
Brandon Butler: Um I wanna suggest that you take a look at the, the software preservation code um as a potentially um especially useful uh resource for, for y’all because it is about preservation. Um And although it’s preservation of software, uh the, I think one of the biggest hurdles that people struggle to get through in terms of um thinking about fair use and preservation is the question of whether and how it’s transformative. And I was actually just going back and looking in my, you know, my sort of like Zotero Library of uh preservation, copyright materials. And uh there’s this, there’s an article by mm you know, my friend and, and yours, Peter Hirtle about uh copyright and archives and, and Peter, you know, sort of in his article says, well, you know, it’s not clear how, how archival practice is transformative because it’s not critical, right? We’re not criticizing the material. We, we don’t, we don’t comment on it, we just sort of present it. Um And that’s fair enough. I get it. Uh I’ve, you know, Peter and I have talked about this. Um but I don’t think that’s the entire story. And if you take a look at the software code, uh what you’ll see is an argument, a series of arguments about why preservation is transformative. Um having to do with the different cultural and social role that preserved cultural heritage materials play relative to the commercial market that these materials might have existed in originally, right? And so it’s, it’s never been the case that you have to literally change the thing, you know, transformative was, is a term of art. It doesn’t mean literally changing the material. It doesn’t mean you have to intervene on it or, or, or even comment on it. Um What it means is you’re doing something different with it. And uh what we argued uh in the software community based on the deliberations within that community about the importance of preserving cultural heritage software. Uh And uh was, you know, look, this material might have been originally meant uh for use by architects to help them design buildings better, right, or whatever. But when we provide it to people in a research context, they wanna know, how did this software work? How might it have influenced the way that architects designed their buildings, right? What does it look like and feel like when I run this software, they’re not designing buildings anymore, right? This is not the market for research access to architectural uh design software um well, frankly doesn’t exist, there is no research access market, right? Um And that’s exactly the point. That is where we fit in, right? That is where cultural heritage institutions come into play. We are not intruding on a market when we preserve materials and make them available for research. It is a separate cultural sphere. And that’s why uh in our view, it’s trans- it’s a transformative activity um that should be protected by fair use. So check that out, I think you will find it um valuable and, and uh interesting.
Brandon Butler: So let me lay down a few more kind of what I would call risk reducers and perspective shifters, right? For, for folks who might be anxious about fair use um and ways to kind of change the way you think about it. Um So let me get back to this concept of mission risk, right? Often when we often, when we um are thinking about, you know, uh uh is this legal right? Can I do this under the law? Is it gonna be fair use or not? Um The the the the risk associated with infringing copyright is very vivid, right? It’s very vivid to your mind. Um It’s, it’s not hard to imagine, especially those of us who kind of like lived through the copyright wars of the nineties and early oughts when, you know, grandmas were getting fined six figures uh, and more because their grandkids shared two songs on, on a, a file sharing software. Copyright infringement sounds really scary and doing it seems really risky, right? Um, but it’s important to remember the risk on the other side of the ledger, right? So it’s not the case that uh if you, if you don’t preserve this thing, then nothing will happen, but nothing bad will happen, right? If you don’t preserve materials, lots of bad things will happen, right? So you, you preserve materials and you know, if you feel like there’s uncertainty there, there’s a risk, right? There’s a risk that someone will get mad and they’ll write you a nasty letter or whatever and we’ll talk about that risk, not that high, but that if you don’t preserve those materials, there’s, of course, the risk that they’ll go away forever, right? That they’ll be lost, that no one will be able to find them that the last copy will die before it’s put on a durable medium, et cetera, right? Cultural heritage lost, research and teaching opportunities are lost, right? I mean, um copyright risk can actually influence what fields of study are available to researchers, you know, and to teachers. So, for example, um uh I’ve worked with film historians like Peter Decherney at University of Penn at uh Pennsylvania University. Um and Peter teaches, you know, massive open online courses. He’s, he’s a believer in teaching a lot, you know, in kind of spreading the gospel of like film literacy. But um if you go and look at like, what kinds of courses are offered in these big online platforms, there aren’t courses about things like the history of film because people are scared to include clips of films in these big open online courses. They’re afraid that this could be a copyright risk, you know, problem. But what that means is that, um, if you want to take a class on the internet, there’s an infinite number of classes you can take about materials that are in the public domain or about materials that are not copyright encumbered, you know, algebra, but you cannot study contemporary culture online because of copyright fear, right? That’s, that’s messed up, right? Like that’s a problem. That is a risk. Um, that is a downside. And so it’s something to think about. We have a mission to educate and to support research. And um, if we allow uncertainty about copyright to curtail that mission, something is lost. It’s not nothing. Um, research and teaching curtailed. Funding opportunities missed, right? Like if you’re not willing to flex your fair use muscles, then you’re not will-, you’re not gonna be able to apply for grants uh to digitize material for preservation purposes or to make them accessible, right? Um And ultimately, you are the client, that’s the other thing to mention, right? You know, when you talk to somebody like a general counsel, um their job is to help you do your job, right? Um And so ultimately, you know, your goals and your purposes should be the governing, you know, the, the guiding light. You know, of course, they can’t, you know, of course, their job is to, is to sort of um help you do that without incurring undue legal risk. But um but reducing risk to zero in a way that reduces your mission to zero is not an acceptable outcome, right? So remember that.
Brandon Butler: Um fair use cuts Gordian Knots. I am such a a fan of fair use. I sometimes wonder if I’m such a fan of fair use because I’m lazy. Uh You know, III I really hate um the kind of persnickety um uh uh time intensive uh work that is involved in lots of the other ways of trying to clear copyright questions. Um uh So there’s a huge problem of course, y’all may have heard, uh I’m sure by now of the the issue of what are called orphan works, right? Works where the the there’s some copyright holder out there somewhere because they’re less than 100 years old or whatever. And so probably there’s somebody out there who probably holds copyright. Figuring out who that is and where they are and getting them to answer your email is a whole another question, right? Um And if you are um completely beholden to getting express permission every time you try to do something. Well, then an orphan work is just um uh dead to you, right. There’s nothing you can do. If you can’t find a rights holder, then you can’t do anything with it. Um And that’s crazy. That is crazy. That is a failure of the copyright system if it actually worked that way. But again, fair use is meant to ensure that the copyright system doesn’t fail, right? Fair use is the safety valve that says look, the purpose of copyright is to enrich culture. And so if you reach a dead end trying to find people, um and yet, you know, uh what you wanna do is culturally beneficial uh copyright should not stop you, right?
Brandon Butler: And so orphan works are a category uh where fair use can really be helpful to you. Um And of course, in the case of orphan works, um there’s a, there’s a kind of argument that um whoever this person or entity is clearly they’re not gonna be harmed by your use because they’re not on the scene, right? They’re not, they’re not anywhere out there waiting to hear from you. They, they don’t want your money, they don’t want your permission, they, they are unfindable. Um And so fair use can sort of cut through that problem for you.
Brandon Butler: This one, I think uh the next one I think should be kind of near and dear perhaps to this community, which is the layers of multiple rights that can be involved in any particular kind of cultural object, right? So, I mean, thinking about like a radio broadcast, right? There’s songs, there’s the musical record-, there’s the the musical composition on the one hand and the sound recording on the other. But that’s true also for all kinds of other works, right? There’s a script on the one hand, a kind of written uh teleplay and then there’s the performance of the teleplay and all of these rights have different rights holders potentially, right? And if you wanted to do kind of a perfect job of clearing all rights in order to, to make use of a of a, a particular sound recording, um you may never reach the end of it, right? It’s a snarl. It’s a, again, it is a Gordian Knot, but again, fair use uh can cut through all that because fair use is based on your transformative purpose and it will apply regardless of all of the multifarious, right um uh rights holders that might be implicated by any given work.
Brandon Butler: Um Large collections are another huge Gordian Knot, right? Um There’s been lots of good research done, Henry Lowood’s, done this with software. Um There’s work in the research triangle uh with uh manuscript collections. Um It is simply not feasible to actually do the diligence that would be involved in like finding identifying and seeking permission from every rights holder implicated in, you know, a typical large archival collection. Like it’s the the sheer scope makes it prohibitive. And so again, fair use can cut through all that you can say at the level of at the collection level, this is fair use and you can do what you need to do to preserve at the collection level without fretting about all of those individual people and, and rights holders that are implicated by every little item.
Brandon Butler: Other legal provisions in the Copyright Act can be really powerful when you jump through all the hoops. But again, they, they are a lot of hoops to jump through. So the Music Modernization Act, um Section 108, the Teach Act, each of these other kind of copyright safety valves are great, but they are um much harder to navigate than fair use. Um They require uh uh more diligence, more ticking of boxes more doing searches for rights holders and things like that, that um uh or imposing technical measures in the case of Teach Act or interpreting tricky words like obsolete in the case of Section 108. Again, fair use is much simpler and cleaner and clearer. Um And I I mentioned undue diligence.
Brandon Butler: So the last thing I wanna say and then we’ll do Q and A is remember the other person has some risk calculus on their side too. Right. So there’s a reason people don’t sue libraries and it’s not just because it would be a jerk thing to do. Um, one of them is copyright litigation is expensive for the plaintiff. Right. Um, studies have shown that it’s a, it’s a six-figure. Uh, it’s sort of, uh, $300,000 was the average cost of a copyright case. And so for someone to haul off and actually go to court over copyright, they really need to be, you know, um, deep pocketed and willing to, willing to fight. And a lot of folks I think would rather avoid that if they possibly can. Um Another thing that’s important to know is plaintiffs pay when they lose fair use cases. And so that’s where my little graphic comes from. South Park Comedy Central, not, not an impoverished defendant. Um, you know, they’ve got money, they’re, they’re doing fine. But, uh, when the, when the guy who made this sort of, um, absurd video in the bottom right-hand corner sued them for making fun of him and lost, like immediately, the court said, look, this is obviously a parody. This is obviously a fair use. Um You have wasted this court’s time. You will pay Comedy Central’s lawyers. Ouch. And this is a part of the Copyright Act, um, that is uh important to know about. That a plaintiff who brings a lawsuit, uh and loses in a case where they probably shoulda known they were gonna lose is gonna end up paying the attorney’s fees and costs of the defendant. And so that means, not only is the, not only do they have the six-figure cost of their own legal fees, but then they have the six-figure costs of the other person’s legal fees as well. So it’s another reason they might think twice. Um, another thing to know is the, the big old nasty remedies that we think about when we think about copyright infringement, um, the against kind of six-figure plus remedies, those are only available to people who register their rights. And so if you have a collection of things like home tape recordings, um, amateur recordings, archival materials that were never published, they were also probably never registered. Right? And so you can think about, well, if they didn’t register, um, are they gonna be able to, are they gonna be able to kind of recover the kinds of remedies that would motivate them to, to file a lawsuit in the first place? Um, quite possibly not, right? And so that again, makes it for a potential plaintiff, it makes it not attractive to bring a lawsuit. Um, if you, if you think you’re gonna lose on fair use and you know, you, even if you win, you’re not gonna get that much money, then the plaintiffs are not likely to move forward. Um, there’s a provision in the act actually that says in, at 504 C2 , a library or library employee, a library or archives or a library or archives employee um with a good faith belief that their use is fair uh cannot be uh subject to statutory damages uh for uh uh for, for the, for the activity if they had a good faith belief that their use was fair. Right? And so again, that damages, the possible remedies a plaintiff could get are become much less attractive, right? And, and the downside for you are, is much, is much less intense. And for those of us in state institutions like the uh University of Virginia, we have state sovereign immunity from damages. That is, they can sue us for copyright infringement, but all they can get as a remedy is an order that we stop, they can’t get any money. And again, that’s gonna make it less attractive uh for anyone to bring a lawsuit against a state entity. So, you know, it’s not just, it’s not all the risk is not just on us, the risk is on the plaintiff as well. Um And it’s really not that attractive to bring kind of frivolous lawsuits against libraries. And that’s part of why it doesn’t happen.
Brandon Butler: Ok. So that’s, that’s my spiel, I’m sticking to it and it’s 2:50. So maybe we can do a few minutes of uh of Q and A before the top of the hour.
Allison Schein: Yeah, that would be great. Thank you so much that was so informative and very, very exciting. Um So we’ve got a couple of questions. Uh libraries can make duplicate copies for preservation. But what about lending these copies to patrons? Is that distribution?
Brandon Butler: So a few answers to that. Uh yeah, it is distribution, lending is distribution. Um And the then the question becomes, so what? Right? Why does this, why does this matter? Um it matters if you are looking at um specific provisions that uh only apply to specific kinds of uses? Um It doesn’t necessarily matter if you’re thinking about fair use because again, fair use doesn’t, doesn’t make those fine distinctions, you know. Well, it’s OK to make copies but it’s not OK to distribute. Um fair use will let you do anything that fits within the four factor kind of transformative analysis. So that’s what I like about it. You don’t have to kind of fret too much about those fine distinctions like is it reproduction? Is it distribution? Is it performance and so on?
Allison Schein: Great. Um What other outdated guidelines existed before the new principles? Uh CONTU comes to mind anything with bright line numbers, I assume but curious about other examples.
Brandon Butler: Yeah, you know, so CONTU absolutely, totally outdated. Um There were a set of guidelines called “the classroom photocopying guidelines” that were promulgated in the late 1970s. Um You know, that’s where you get things like uh one, you can make one copy, you know, but you can’t do two semesters in a row or two years in a row, you can’t use the same material, all that stuff- completely arbitrary that none of that is actually true. Um It was negotiated, you know, it was, it was literally cigar chomping lawyers, the law firm I used to work for, it was one of the partners I used to work for, he was the guy literally chomping on a cigar in a room, negotiating this with the publishers and it was never codified as the law. It was just a gentleman’s agreement and we’ve moved on from that. So we don’t have to worry about those anymore.
Allison Schein: Thankfully. How do video [throat clearing], excuse me, how do video recordings of programs that were broadcast on TV, Such as the nightly news fit into fair use? Are these limited to on site viewing in a classroom setting and not via a streaming or a shared video file?
Brandon Butler: Fascinating. News is fascinating because it’s subject to this weird, you know, I mean, it’s a good kind of parable for, you know, how politics actually really works. Um There was a, again in the sort of seventies, uh when the in, in early eighties, when the big last big copyright overhaul happened, there was a, a senator in Tennessee who was convinced that, you know, this may sound familiar to you, the media had a liberal bias and he wanted to, he wanted to ensure that uh Vanderbilt University in his home state would be able to build its comprehensive uh archive of broadcast news, documenting the liberal bias in the media. Um And so there’s a provision if you look at Section 108, there’s this weird little provision that does a little judo chop and says, you know, whatever else happens, you can record the news. Um but that’s not fair use. And, and it’s funny because uh it has um it, it, it, it uh well, fair use is interesting here because again, fair use is only gonna, is, is, is gonna give you the flexibility to think about those things about “Well, can I lend it or not? Can I, can I have it on site or not?” And the lens that you have to take when you think about fair use in that context is well, is access to this material in a research context, transformative? And is there something about seeing it remotely versus seeing it on campus that changes the transformative calculus? And at first blush, I don’t see anything that does, you know if that makes sense. So the, the fair use uh the fair use argument would not necessarily distinguish between on-campus and off-campus. And we’ve, we made that argument about software uh in the DMCA last last, last round, we argued for off-campus access to software because we didn’t see any fair use reason to limit it to on campus.
Allison Schein: Great. Thank you. Uh someone we uh weighed in if they’re not mistaken, part of the problem of recordings of historical radio. Oh, wait, was there a radio question? Um, historical radio is the undefined copyright status of the original broadcast? For example, if it was an interview without music, without a script, does it carry much less risk than a broadcast of a radio play with music?
Brandon Butler: [throat clearing] Yeah. Yeah. And a again, um, it’s true that you could if you wanted to sort of go down the rabbit hole of figuring, I mean, there’s some very tough technical copyright questions about copyrightbility of this kind of material. Um where there, there was a broadcast but there was never a uh there was not a script, for example. Um And you could say you, you could, you could, you could go down that rabbit hole. But again, the, the, the nice thing about fair use is if you have a, a good fair use rationale for preserving and providing research access to sort of a collection or a broadcast, then you don’t have to say, well, we’re gonna, for example, we’re gonna take out everything that was scripted, you know, because that doesn’t work, right? We can’t, the, the scripted stuff is not safe but the unscripted stuff is OK. And fair use actually has a nice kind of universality to it. If, if it, if it applies, it will apply without regard to those kind of finicky technicalities which again, sometimes those can be really interesting, you know, if uh some of some, you know, if a, if an item is in the public domain, for example, right, due to failure to meet some of the formalities that were, that were required before the 1976 Act, that’s huge. If something is in the public domain, then you can do anything with it [Right.] and you don’t even have to think about fair use. And so it can be worth picking through these kind of finicky details if you wanna sell copies, for example. But in a, in a research context, um I think that often it’s more efficient not to worry about the finicky stuff and to use fair use to get the big jobs done.
Allison Schein: Um Great. Um Does transformative use uh play a role in software video game uh emulation as opposed to just transformation? What about software editions and older version that maybe aren’t supported? But new additions are coming out and still actively sold?
Brandon Butler: Yeah, check out the code. Um I think you will, you will find it very interesting but the short answer is uh yes, it’s a lot about emulation. Uh emulation is a huge part of why we’re interested in this stuff right now because it’s making um software access and preservation so much easier.
Allison Schein: Great. And then um real quick if you can answer this in, in a minute because we wanna mindful of everybody’s time and health. Uh Can you comment on the Internet Archive’s digital controlled uh lending program which contains many in-copyright books.
Brandon Butler: Yeah, I mean-
Allison Schein: works, excuse me, not books works in.Yeah.
Brandon Butler: Yeah. Yeah. Yeah. Um all I can say about it is that uh the, the, the fair use argument for controlled digital lending is at its strongest when you can tell a story about why the the lending is kind of non-substitutional, right? It’s non, it, it is transformative, it’s, it’s, it’s working in a way that’s not unfairly competing. And so, you know, II I don’t fully embrace the kind of argument that that controlled digital lending is always and per se fair use. I think it’s fair use sometimes and not fair use other times. And we’re still working out which uses are in those two categories if that makes sense.
Allison Schein: Yeah, great. Well, thank you so much. This was really a treat. Um and, and really very, very informative and thank you again, especially uh after so recently catching COVID, we definitely appreciate you spending your time with us
Brandon Butler: You bet. Thanks for having me. It was very fun to speak with you all.