The Tyranny Of Copyright: How A Once-Humble Legal Issue Has Tormented A Generation Of Speech

from the oh-come-on dept

Scott Burroughs, one half of the named partners at the law firm Doniger Burroughs, seems to want to build up a reputation as one of the go to voices for pushing the most absurd copyright theories out there. You may recall Doniger Burroughs as the law firm that, representing Playboy, sued BoingBoing for linking to images, making an argument that was so absurd that a court completely tossed it in just about three months (which is crazy fast).

Of course, as we noted, Doniger Burroughs after years of copyright trolling clothing designs appeared to be branching out into more traditional copyright trolling. As part of that, Burroughs has been publishing complete and utter nonsense in a regular column over at Above The Law.

Recently, he decided to do a bizarre attack on "fair use" in which he conveniently leaves out a few important facts in order to suggest that fair use has gone too far and needs to be pared back. He entitled the series, "The Tyranny of Fair Use" with the first part purporting to explain "How A Once-Humble Copyright Doctrine Tormented A Generation Of Litigants," and the second part unfairly tarnishing the legacy of judge Pierre Leval whose seminal paper, Towards a Fair Use Standard certainly has had tremendous weight on how the courts view fair use. Of course, the reason for that is because it's thoughtful and well-argued, but we'll get to that.

The "premise" (if you can call it that) of the first piece is that the concept of fair use today has strayed a great distance from where it began, going all the way back to the Statute of Anne. I'd quote his nonsense, but I get the feeling Burroughs might not think that's fair use. However, to summarize it, Burroughs claims that from nearly the beginning of time until just recently, "fair use" was very, very limited and required a very high bar to meet its standard. The second piece, then lays the blame on the more modern, more expansive view of fair use on Leval's famous paper, which, among other things, promotes the concept of "transformative works" as being a key factor in determining fair use. Burroughs claims that Leval's take on things "contravene[s] over 150 years of jurisprudence."

Of course -- perhaps because of his own fear of violating the copyright of Leval's piece -- Burroughs barely quotes from it at all. Perhaps that's because it debunks nearly everything that Burroughs says. Whereas Burroughs insists, repeatedly, that the fair use standards were well settled and clearly applied before Leval came on the scene, Leval's own paper points out that this is not even close to true:

Earlier decisions provide little basis for predicting later ones. Reversals and divided courts are commonplace. The opinions reflect widely differing notions of the meaning of fair use. Decisions are not governed by consistent principles, but seem rather to result from intuitive reactions to individual fact patterns. Justification is sought in notions of fairness, often more responsive to the concerns of private property than to the objectives of copyright. Confusion has not been confined to judges. Writers, historians, publishers, and their legal advisers can only guess and pray as to how courts will resolve copyright disputes. After recent opinions of the Second Circuit casting serious doubt on any meaningful applicability of fair use to quotation from previously unpublished letters," publishers are understandably reluctant to pay advance royalties or to undertake commitments for biographical or historical works that call for use of such sources.

The point of Leval's paper, then, was to clarify the law, and make some suggestions about how fair use could be applied more consistently.

But there's a much larger part of the problem with Burrough's thesis, which argues that there was this completely out of left-field massive change to "fair use" in the past few decades, and that upset the entire history of the doctrine. What Burroughs -- astoundingly -- leaves out, is that this is much more true of copyright law itself. From the earlier copyright law in the US, it only applied for 14 year terms (with one possible renewal) and only to maps, charts and books. Over the years, copyright law has expanded and expanded and expanded, to the point that, after the 1976 Copyright Act went into effect, copyright law applied to nearly all new creative works and lasted an authors lifetime plus many decades (which, again expanded in 1998).

Indeed, a big part of the reason why Leval's paper became so necessary was that unlike in the past, copyright was now regularly starting to interfere with First Amendment protected speech, since so much speech and expression was now getting covered by copyright. A somewhat more broad view of fair use was essential because, for the first time, copyright was suddenly blocking all kinds of speech. That didn't happen nearly as much prior to 1978, because most work wasn't under copyright (and if it was, it wasn't for long). However, post 1978, suddenly all new works of any level of creativity were automatically covered by copyright, creating a real crisis for the First Amendment.

Indeed, this is why Supreme Court Justice Ruth Bader Ginsburg -- who famously has been a strong copyright maximalist in her interpretations of the law -- has noted repeatedly that fair use is copyright's internal safeguard to make sure it's compliant with the First Amendment (for what it's worth, I disagree, and think that fair use doesn't go nearly far enough in protecting the First Amendment, but still...):

In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations.... [....} ... the “fair use” defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances. Codified at 17 U. S. C. §107, the defense provides: “[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” The fair use defense affords considerable “latitude for scholarship and comment,” ... and even for parody.... The CTEA itself supplements these traditional First Amendment safeguards....

In other words, the reason that fair use has expanded (in as much as it has expanded), is only because it was made necessary by the much, much, much more expansive changes to copyright law itself, sucking in all sorts of expression and making it incompatible with the First Amendment. The more expansive understanding of fair use (which is still far too limited) only came about because of that.

If Burroughs wants to go back to an originalist conception of fair use, that's fine if and only if he also agrees to go back to an originalist version of copyright: 14 year limits and it only applies to maps, books and charts. I'd buy into that.

Meanwhile, as for Burroughs' claim that fair use has become some sort of "tyranny for litigants," let's get real for a second. The real tyranny in copyright litigation these days comes from the trolls filing tons and tons of cases, hoping to get easy settlement cash. Oh, and on that note, looking at a recent Lex Machina report on the top copyright plaintiffs, what do we find? Oh, look, Doniger Burroughs in the very top spot:

If you can't see that, it shows that Doniger Burroughs filed more copyright lawsuits than any other law firm in the period covered by the report, with 1,121 cases filed. That's almost double the number three filer, who had 622 cases.

So, uh, maybe the "tyranny" of copyright litigation isn't because of fair use... but is because of copyright trolls.

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Filed Under: copyright, fair use, free speech, pierre leval, scott burroughs, transformative use

Companies: doniger burroughs