A Brief History of Fair Use

Fair use is a doctrine in U.S. copyright law that allows for certain uses copyrighted material without permission from the right holder.  The actual legal doctrine is complex, and still evolving somewhat.  A historical perspective on how, and why, fair use developed over the years can help in understanding its place in the modern world and how it should be applied.

The Structure of Fair Use Began in the Common Law.

Although fair use is now codified as part of copyright law, it began as a common law doctrine.  In fact, English Courts recognized something akin to fair use under the Statute of Anne, the first copyright law established in 1710.[1]  These early copyright cases spoke of fair abridgment rather than fair use.[2]

Justice Joseph Story. 1844. Public Domain.

Justice Joseph Story. 1844. Public Domain.

Folsom v. Marsh was one of the seminal, early fair use cases in the U.S.  Decided by Justice Story, this case helped lay out the early doctrine of fair use, and has been frequently cited by both other cases and by academic works.  That case centered on two books dealing with George Washington, where the later book borrowed substantially from the first one.  In the end, the court found that the use was not a fair one and found an infringement.  But in the process, it laid out factors that could be used to determine when a use was fair.  For instance, this case found that the publication of private letters was sometimes appropriate even though the writer held a copyright in them.[3]  More generally, Justice Story said, “we must often … look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”[4]

As an example, Courts have protected parodies long before the fair use doctrine became codified.  For instance, Bloom & Hamlin v. Nixon from 1903 centered on the song “Sammy”, which was normally performed as part of stage production.  The defendants blatantly mimicked parts of the song, though they did so largely as a way to mimic the most famous performer of that song at that time.  The court found for the defendants, saying “[s]urely a parody would not infringe the copyright of the work parodied, merely because a few lines of the original might be textually reproduced.”[5]

Congress Codified Fair Use in 1976

The 1976 Copyright Act made numerous changes to copyright law in the United States.  Among others, it brought unpublished works under federal copyright and generally preempted state copyright statutes.  Significantly for this article, it codified fair use into statute at 17 U.S.C § 107.  Currently, that section of the statute reads:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The Beginnings of the Digital Era

Fair use became more significant with the rise of the digital era.  In the past, it was arguably difficult for an individual to even violate copyright law in a meaningful way.  Most uses of a copyright protected work which could be made by an individual without access to special equipment such as a printing press would have been entirely unregulated.[6]

With the rise of the digital era, that changed.  It became simpler for individuals to distribute copies of protected works, often referred to as piracy.  But it also became easier for individuals and businesses to create and then distribute derivative works.  Some of these activities, such as piracy, were clear violations of copyright law.  But others, such as many of the derivative works, could exist legally only because of the fair use doctrine.

Some businesses relied heavily on the fair use doctrine and faced new questions as technology changed business practices and created new businesses.  For instance, the Ninth Circuit used fair use to protect reverse engineering under some circumstances.[7]  Accolade was a software company that had reverse engineered parts of the Sega Genesis in order to produce games that were compatible with that system.  Sega sued claiming both trademark and copyright violation.  The Ninth Circuit found that their reverse engineering and disassembly of Sega’s code in order to be compatible with the Genesis was protected by fair use.  In particular, that court said “when the person seeking the understanding has a legitimate reason for doing so and when no other means of access to the unprotected elements exists, such disassembly is as a matter of law a fair use of the copyrighted work.”[8]

Google has built different parts of its business around fair use.  Google image search for instance was swiftly challenged on copyright grounds because of its use of thumbnail images from other websites.  Perfect 10, a purveyor of adult content, sued google over its image search.  Emphasizing the transformative nature of Google’s use and the benefit to the public, the 9th Circuit found that Google’s use of the thumb nail images was a fair use.[9]  Without the fair use doctrine, image search features that span the web broadly would likely be impossible.  Similarly, the Google Books program relies on fair use for its existence.[10]

Fair Use as a Right and an Affirmative Defense

The Supreme Court stated definitively in 1985 that Fair Use was structured as an affirmative defense.[11]  This means, among other things, that a defendant wishing to claim fair use bears the burden of proof.[12]  However, many judges and scholars believe that it is an affirmative defense that must exist in order to allow copyright to be Constitutional.  This view is not absolutely accepted and remains somewhat controversial.  Some commentators have said that fair use in its current incarnation is a technical infringement which is excused by the law.[13]  Still, the Supreme Court has made statements which imply that free expression requires something like fair use[14] and other courts have gone further.

For instance, the 11th Circuit in a significant case dealing with fair use stated “[h]ad fair use not been recognized as a right under the 1976 Act, the statutory abandonment of publication as a condition of copyright that had existed for over 200 years would have jeopardized the constitutionality of the new Act because there would be no statutory guarantee that new ideas, or new expressions of old ideas, would be accessible to the public.”[15]  In a footnote, Judge Birch expanded on that saying “the fact that the fair use right must be procedurally asserted as an affirmative defense does not detract from its constitutional significance as a guarantor to access and use for First Amendment purposes.”[16]

Other Modern Controversies

From a practical standpoint, one of the biggest controversies surrounding fair use is that the contours of the doctrine are painfully ambiguous.[17]  This makes determining whether any particular use is fair or not difficult and uncertain.[18]  Case law has not substantially clarified the vague statute.  In a commentary, Judge Pierre N. Leval noted that “[r]eversal and divided courts are commonplace” and that the first two fair use cases two come before the Supreme Court resulted in 4-4 splits.[19]  Although this issue has been noted by significant scholars, it is unlikely to be resolved soon.

Another modern concern revolves around the interactions between fair use and the Digital Millennium Copyright Act.  The Digital Millennium Copyright Act created a system that allows for “notice and takedown” of copyright materials on the Internet.[20]  The system is meant to allow copyright owners to swiftly have their materials removed from sites that host user provided content where the user uploaded material they were not authorize to upload.  However, copyright owners have at times used the system to remove material that should have been protected by fair use or where the removal is otherwise inappropriate.  The Ninth Circuit found that under the DMCA, a copyright owner must take fair use into account before they can properly invoke the DMCA, but there is no requirement that they make the right decision.[21]  This has caused some controversy, and commentators have recommended adjustments to the way fair use is handled under the DMCA.[22]  Many of these proposed solutions would require major changes to the law.[23]

Conclusion

The Fair Use doctrine has been vital to U.S. copyright law.  Arguably, it is necessary to ensure that copyright law remains compliant with the First Amendment.  It has helped protect certain new technological products which would likely be impossible without it such as image search and some forms of reverse engineering.  As technology continues to advance, making copying even easier and creating more forms of creativity not yet fully conceived, Fair Use and related doctrines are likely to become even more important.  But these new applications of Fair Use are likely to create additional legal controversies and create new questions to be resolved.  An understanding of the history of fair use can help in understanding how those controversies arose and the best way to resolve them.

To Learn More About Fair Use

 

Disclaimer

This article is meant to provide information on a historical topic of law.  Although I am a licensed attorney in the State of Nevada, this article is not meant to provide legal advice or create an attorney-client relationship.  If you need legal advice, you should seek the aid of an attorney licensed in your jurisdiction.  All information is provided “as-is”.

[1] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994).  It is worth noting that even the Statute of Anne had predecessors that laid the groundwork for copyright.  But those are far beyond the scope of this post and the Statute of Anne is generally recognized as the first true copyright act in the English or American Traditions.  See Isabella Alexander, All Change for the Digital Economy: Copyright and Business Models in the Early Eighteenth Century, 25 Berk. Tech. L. J. 1351, 1356 – 1362 (2010).

[2] Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1105 (1990); see also Gyles v. Wilcox, 26 Eng. Rep. 489, 2 Atk. 141 (1740).

[3] “But, consistently with this right, the persons to whom they are addressed, may have, nay, must by implication, possess, the right to publish any letter or letters addressed to them, upon such occasions, as require, or justify, the publication or public use of them…”  Folsom v. Marsh, 9 F.Cas. 342, 346 (C.C.D. Mass. 1841).  This of course has significant implications for matters such as copyrighting a cease-and-desist letter.

[4] Folsom, 9 F. Cas  at 348.

[5] Bloom & Hamlin v. Nixon, 125 F. 977, 978 (C.C.E.D. Pa. 1903).

[6] Lawrence Lessig, Remix 100-101 (2008).

[7] The law around reverse engineering is complicated and has grown more rather than less complicated since this case.  For instance, the anti-circumvention provisions in the DMCA for instance have an impact on the ability to reverse engineer or even repair certain forms of technology.  See 17 U.S.C. 1201.  It may also implicate contract law if there was a license involved with acquiring the software.

[8] Sega Enterprises Ltd. V. Accodlade, Inc., 977 F.2d 1510, 1514 (9th Cir. 1992).

[9] Perfect 10 v. Google, 508 F.3d 1146, 1168 (2007).

[10] See generally Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013).

[11] Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 561 (1985).

[12] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994).

[13] Ned Snow, The Forgotten Right of Fair Use, 62 Case W. Res. L. Rev. 135, 136 (2011); see also Marc J. Randazza, Lenz v. Universal: A Call to Reform Section 512(f) of the DMCA and to Strengthen Fair Use, 18 Vand. J. Ent. & Tech L. 101, 118 (2016).

[14] See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994).

[15] Suntrust Bank v. Houghton Miffline Co., 268 F.3d 1257, 1264 (11th Cir. 2001).

[16] Id. at 1261 n. 3.

[17] Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1106 (1990).

[18] See generally David Nimmer, “Fairest of Them All” and Other Fairy Tales of Fair Use, L. & Contemp. Probs. 264 (2000).

[19] Leval, supra note 17 at 1106-07.

[20] See Timothy A Wiseman, Limiting Innovation Through Willful Blindness, 14 Nev. L. J. 210, 211-214 (2013).  To be clear, the DMCA also has other impacts on copyright law, but it is the notice and takedown provision which is relevant here.

[21] Lenz v. Universal Music Corp., 80 F.3d 1126, 1129 (9th Cir. 2015).

[22] See e.g. Randazza, supra note 13 at 118.

[23] Of course, there are other controversies around the DMCA.  For instance, many content owners believe it is far too difficult to police their content and suggest that more of the burden should be placed on online service providers.  There are also questions around what constitutes red flag knowledge under the DMCA and how it interacts with willful blindness.  These other controversies are beyond the scope of this article.

Historical Facts About Encryption

Controversies surrounding encryption and cryptography have been making the news quite a bit lately, at least in legal and technical circles.  One of the highest profile recent controversies revolved around when the government could force Apple to help decrypt iPhones.  There have been other controversies around when a court can force a criminal defendant to decrypt their own harddrives.  Some politicians have been asking for backdoors to be placed in encryption software.

This post will not look directly at any of these recent controversies.  However, as with many things, a historical perspective can aid in understanding these controversies as well as the increasing importance of encryption in society.  So, let’s look at a few facts from the history of cryptography as well as how it is used now.

Encryption is ancient

Encryption has been used for thousands of years, done by hand long before computers were developed.  It has been traced back to ancient Egypt.[1]  One early, and famous, form of encryption was the Scytale used by the Spartans around the fifth century B.C.[2]  Scytales were wooden staffs that were cut to a precise diameter.  The Spartans would wrap this staff with a thin piece of parchment and then write their message across the paper.  When they unwrapped the paper, it would be difficult to decipher the message.  When the message was sent to its recipient, they would then wrap it around their staff, cut to the same diameter, to be able to read the message.

The Caesar Cipher is another famous cipher used in ancient history.  In its simplest form, each letter is replaced by the fourth letter after it in the alphabet.  So, an A would become a D.  There are indications that ciphers similar to that were used prior to Julius Caesar, but Suetonius’ description of Julius Caesar’s use of them helped ensure they were well known.

Tusculum Bust of Julius Caesar. Photo by Gautier Poupeau under CC-BY 2.0 license.

Tusculum Bust of Julius Caesar. Photo by Gautier Poupeau under CC-BY 2.0 license.

Cryptanalysis has been around for a long time

William Friedman (Photo from https://commons.wikimedia.org/wiki/File:William-Friedman.jpg in public domain)

William Friedman

Cryptanlaysis is essentially breaking the codes used in cryptography, while cryptography is the science of making efficient and effective encryption schemes.  The word itself is quite new and was brought into the English language by William F. Friedman.[3]

The practice though dates back to the 9th Century at the latest and may have seen use before that.   One of the earliest surviving texts on cryptanalysis dates to around 801 A.D. and was written by Al-Kindi from Basra.[4]

Unbreakable cryptography has been around for some time.

The one time pad is a theoretically unbreakable form of encryption.  In its simplest form, each character or bit of a source document is combined with the corresponding part of the key, which must be truly random.  This means that the key needs to be at least as long as the message.  Also, to maintain their security, the key cannot be reused.  If the key is used repeatedly, cryptanalysis becomes possible.  In practice, this process is rarely used because it requires creating, managing, and possibly finding a secure way to transmit a secret key that can be enormously long.  It is also not overly efficient.  It is though theoretically unbreakable when done properly.

This system was first fully detailed in 1882 by Frank Miller, though the somewhat similar systems were around before that.  Though the practical issues mean that one time pads do not see much use, they have seen some important usage.  The English made some use of one time pads during World War II and an early teletype communication system between Washington and Moscow used a variant system.

Cryptography played a role in the American Revolution and its immediate aftermath

Both the Revolutionaries and the British made use of cryptography during the American Revolution.[5]  George Washington exchanged encrypted messages with Marquis de Lafayette.  Charles Dumas, the famed author, provided encrypted intelligence to the nascent United States in this era.  Many well-known statesmen and prominent leaders including Thomas Jefferson, Benjamin Franklin, and John Adams were known to use encrypted messages.  On a more personal level, John and Abigail Adams exchanged encrypted personal messages to protect their privacy.[6]

Both sides also made use of cryptanalysis.  For instance, some of Washington’s men intercepted messages sent by Dr. Church, a spy for the British.  They were eventually able to decrypt these messages and arrested Dr. Church.[7]

The fact that encryption was used during the Revolution has meaning today to legal scholars.  Because of how much the world, particularly technology, has changed since the Constitution was written, some legal scholars are concerned with latent ambiguities in the Constitution.[8]  These are Constitutional issues that would have been unambiguous to the Framers of the Constitution, but which have become unclear in modern contexts.  In other words, we now face questions today which the Framers could not possibly have considered since they had not yet been imaged yet.  This does not really apply to Cryptography.  Obviously, cryptography is much more common now than it was during the revolutionary era, but this is a difference only in degree.  Many of the Framer’s had personally used encryption and were recently involved in a war where the other side had also used encryption.  The Revolutionaries had both broken encryption and faced encryption they could not break.  They of course would not have expected it to be used nearly so much as it is now, but they were well aware of its uses in politics, warfare, and even for simple personal privacy.  The Federal Courts even faced questions of encryption and personal incrimination quite early in their history, with one prominent case dealing with Aaron Burr in 1807.[9]

Modern Usage

Cryptography is pervasive throughout the modern world, more so than many people realize.  SSL or TLS (their usage often signified by “https” in a URL or a lock icon in some browsers) helps provide security on the web.  Without the security and authentication provided by SSL and TLS, it would be unwise to handle sensitive transactions, such as any banking.

Encryption is often used to protect stores of significant data, including database backups.  Some commentators have argued that lawyers may soon have an ethical obligation to use encryption for at least some highly sensitive data.[10]  Cryptography also plays a role in authentication, providing a way to verify that the sender of a message is who they say they are.  It is the basis for digital signatures.  Cryptography plays a vital role in the modern Internet, and modern life, which goes far beyond mere privacy and is essentially required for any electronic transaction in which you need to be certain of the identity of the other party.

[1] Fred Wrixon, Codes Ciphers & Other Cryptic & Clandestine Communication 17 (1998).

[2] Simon Singh, The Code Book 8 (1999).

[3] Alfred J. Menezes, Paul C. van Oorschot & Scott A. Vanstone, Handbook of Applied Cryptography 275 (1996).

[4] Simon Singh, The Code Book 15 (1999)

[5] Ralph E. Weber, United States: Diplomatic Codes and Ciphers 1775-1938, 22-25 (1997).

[6] John A. Fraser, The Use of Encrypted, Coded and Secret Communications Is an “Ancient Liberty” Protected by the Constitution, 2 VA. J. L. & TECH. 2, 22 (1997).

[7] Ralph E. Weber, United States: Diplomatic Codes and Ciphers 1775-1938, 22-23 (1997).  After his arrest, Dr. Church was imprisoned until he was effectively banished.  The ship he left the U.S. on was lost.

[8] Lawrence Lessig, Code Version 2.0 25-26 (2006).  Other legal scholars have expressed similar concerns without using the term latent ambiguities.  See e.g. A. Michael Froomkin, The Metaphor is the Key: Cryptography, the Clipper Chip, and the Constitution, 143 U. PA. L. REV. 709, 844 (1995).

[9] See U.S. v. Burr, 25 F. Cas. 38 (D.Va. 1807)

[10] To be clear, there is no requirement to encrypt all e-mails with or about clients currently.  But commentators encourage it if the information is highly sensitive and note that those requirements are likely to become more strict.  See e.g.Daniel Kamitaki, Note, Beyond E-mail: Threats to Network Security and Privileged Information for the Modern Law Firm, 15. S. Cal. Int. L. J., 307, 336 (2006).