Court Cases on Trump’s Travel Ban

Over the last 24 hours, several courts have issued opinions regarding President Trump’s recent executive orders banning entry of certain nationals and refugees into the United States. While recent court opinions have imposed temporary restraining orders, how the executive orders fare on appeal (whether they are considered legitimate exercises of executive power or whether they violate the Establishment Clause) may hinge on whether Trump’s and Administration officials’ statements regarding the travel ban may be considered in determining the purpose of the executive orders.

Background

Following President Trump’s two executive orders, numerous lawsuits were filed across the nation. After Executive Order 13,769 was issued on January 27, 2017, district court Judge Robart issued a temporary restraining order against enforcement of certain portions of the Executive Order in Washington v. Trump. The Ninth Circuit denied the Government’s motion for a stay of the temporary restraining order in that case.

The Trump Administration then issued another Executive Order, No. 13,780 on March 6, 2017, designed to replace the prior Order. This Executive Order made some changes, suspending entry for nationals of six countries (Iran, Libya, Somalia, Sudan, Syria and Yemen) for 90 days, but did not apply to lawful permanent residents, holders of valid visas, dual nationals or certain other categories of people. It also included a “waiver provision” allowing foreign nationals of these countries to seek entry on a case-by-case basis. Another section of the Executive Order suspends refugee admissions for 120 days and also has a waiver provision to be determined on a case-by-case basis. Once again, numerous lawsuits were filed nationwide.

District Court Decisions

In the last day, two federal judges have blocked portions of this new Executive Order from enforcement. The first decision came yesterday evening on March 15, 2017, from district court Judge Watson in Hawaii v. Trump. Judge Watson’s order enjoins enforcement of the sections discussed above “in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas . . . pending further orders from this Court.” The Order therefore applies worldwide. In issuing this order, Judge Watson found that, based on numerous statements by Trump and Administration officials, “a reasonable, objective observer . . . would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose” and would result in irreparable harm. Notably, Judge Watson relied on precedent set forth by the Ninth Circuit’s opinion in Washington v. Trump that courts could look beyond the plain language of the law for evidence of its purpose. Judge Watson does, however, caution that prior statements by Trump or Administration officials do not “forever taint any effort by it to address the security concerns of the nation” and “context may change during the course of litigation.” This morning, March 16, 2017, a Maryland district court Judge Chuang also issued a restraining order in International Refugee Assistance Project v. Trump. Judge Chuang also pointed to the history of public statements as evidence that the Executive Order represented a “Muslim ban.” Chuang’s order will apply only to the portion of the Executive Order suspending of nationals from six countries and does not sweep as broadly.

Ninth Circuit Dissent from Denial of En Banc Hearing in Washington v. Trump

While the judges in Hawaii and Maryland have blocked enforcement of portions of the new Executive Order, five judges from the Court of Appeals from the Ninth Circuit issued a dissent on March 15, 2017 from the Ninth Circuit’s denial of reconsideration of Washington v. Trump by an en banc panel. As noted above, the Ninth Circuit previously upheld a district court’s temporary restraining order. Following the issuance of the new Executive Order, the U.S. government filed an unopposed motion to dismiss its underlying appeal, which was granted. Despite the mootness of the appeal, one judge requested rehearing by the full court, but did not garner the votes for rehearing. These five judges, all Republican appointees, signed a dissent stating that the original Executive Order “was well within the powers of the presidency” and that the Ninth Circuit’s opinion was a “fundamental error.” These five judges argued that “Even if we have questions about the basis for the President’s ultimate findings—whether it was a ‘Muslim ban’ or something else—we do not get to peek behind the curtain. So long as there is one ‘facially legitimate and bona fide’ reason for the President’s actions, our inquiry is at an end.” The dissent also argues that the original Ninth Circuit’s panel opinion “stands contrary to well-established separation-of-powers principles.” Ultimately, the Ninth Circuit will likely have another opportunity to rehear these issues in the context of Hawaii v. Trump.

Additional Information

There are a number of ongoing suits against the travel ban. A roundup of documents for each of the cases is available here.

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Fair Use/Fair Dealing Week 2017 Highlights Balance in Copyright System

*Cross-posted from ARL news*

The fourth annual Fair Use/Fair Dealing Week took place February 20–24, 2017, growing to 140 organizations—as well as numerous individuals—celebrating the important and flexible doctrines of fair use and fair dealing. This year’s event was organized by the Association of Research Libraries (ARL) and participants included universities, libraries, library associations, and many other organizations, such as Authors Alliance, Creative Commons, the Electronic Frontier Foundation, Public Knowledge, the R Street Institute, and Re:Create. Forty-five ARL member institutions contributed a wide range of resources this year. Fair Use/Fair Dealing Week was observed worldwide, with participants in such countries as Australia, Canada, Colombia, Israel, Korea, the Netherlands, New Zealand, and the United States.

Throughout the week, participants celebrated the essential limitations and exceptions to copyright that fair use and fair dealing provide, allowing the use of copyrighted materials without permission from the copyright holder under certain circumstances. While fair use and fair dealing are employed on a daily basis, Fair Use/Fair Dealing week provides a time to promote and discuss the opportunities presented, share successful stories, and explain these doctrines.

 Each day, new blog posts and other resources were produced and shared and institutions hosted a variety of live events, such as panel discussions, film screenings, button- and card-making stations, and more. Daily roundups and additional resources are available on the Fair Use/Fair Dealing Week website. There were over 100 news and blog posts, 13 videos, 3 infographics, and 2 podcasts shared over the week. Below are some highlights.

Fair Use/Fair Dealing Week 2018 will take place February 26–March 2. Plan to participate!

Resources

The Association of Research Libraries released the infographic, “Fair Use Myths and Facts.”

The University of Waterloo adapted ARL’s infographic for Canada to create, “Fair Dealing Myths and Facts.”

Kyle Courtney, Jackie Roche, and Sarah Searle of Harvard University published the comic book, “Fair Use of Unpublished Works.”

Video/Audio

Three ARL libraries created videos celebrating fair use, including Harvard University, Duke University, and the University of Virginia. Additionally, Brigham Young University created a video encouraging visits to the university’s Copyright Licensing Office to learn more about fair use.

The Association of College and Research Libraries has posted a video of its live webcast featuring Lillian Rigling and Will Cross of NCSU Libraries explaining “Using Fair Use to Preserve and Share Disappearing Government Information: A Guide for Rogue Librarians.”

Public Knowledge created a fun, mash-up, parody video, “Let Them Go: A Copyright Policy Song” with an accompanying blog post.

The Center for Media & Social Impact created this “Fair Use Video Code: Documentary Filmmakers’ Statement of Best Practices.”

Re:Create released the fourth episode of its Copy This podcast, this one featuring Corynne McSherry of the Electronic Frontier Foundation on “Fair Use: You Use It More Than You Realize.”

News/Blog Posts

The Canadian Association of Research Libraries (CARL) released a statement supporting Fair Use/Fair Dealing Week 2017.

Jim Neal, president-elect of the American Library Association and university librarian emeritus at Columbia University, wrote the editorial “Balance is Everything,” which was published in The Hill.

Harvard posted new blog posts each day of the week, as did the Center for Media & Social Impact. ARL Policy Notes, Authors Alliance, Dalhousie University, Duke University, Electronic Frontier Foundation, and Penn State University were among other organizations that also posted several times.

Michael Geist of the University of Ottawa covered fair dealing extensively in his post “The Copyright Lobby’s IIPA Report: Fake News about the State of Canadian Copyright.”

Ann Ludbrook of Ryerson University explained the importance of celebrating Fair Dealing Week in the context of the Canadian Copyright Review 2017.

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Roundup from Day 5 of Fair Use/Fair Dealing Week 2017

*Cross-posted from Fair Use Week*

Check out all the great posts from Day 5 of Fair Use/Fair Dealing Week 2017! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Videos

Australian Digital Alliance, Video of the Livestream of the ADA Forum 2017: Morning Session

Australian Digital Alliance, Video of the Livestream of the ADA Forum 2017: Afternoon Session

Duke University Libraries,Fair Use Week 2017 at Duke

Open Media,Brett Gaylor talks copyright and remixed works with OpenMedia

Podcasts

PK in the Know Podcast,Charles Duan on Blurred Lines and Patterns in Music

Resources

Kyle K. Courtney, Jackie Roche and Sarah W. Searle, Harvard Library Office of Scholarly Communication, Comic Book: Fair Use of Unpublished Works

Blog Posts

Pankhuri Agarwal on Spicy IP,Yet Another Victory for Educational Access as Canada’s Federal Court of Appeal Upholds Copyright Board’s Fair Dealing Analysis

American Library Association Washington Office on Library Advocates,Copyright, Exceptions and Fair Use: Crash Course Intellectual Property” (includes video)

Patricia Aufderheide on CMSi blog,Fair Use Myths Debunked in Australia

Sara R. Benson on Copyright at Harvard Library,Making ‘Non-Consumptive Use’ Part of Your Fair Use Vocabulary

Janita Burgess on Organization for Transformative Works,Fan Creation & Copyright Survey: Preliminary Results

Brandon Butler on Perspectives from HathiTrust,Operationalizing ‘Non-Consumptive’ Fair Use to Revolutionize Human Research

Kyle K. Courtney on ARL Policy Notes,Fair Use Fights Fascism: First Amendment Thoughts During Fair Use Week

Zan Gillies on CMSi blog,Lyn Goldfarb Talks Fair Use in ‘Bridging the Divide

Elliot Harmon on Electronic Frontier Foundation, “Fair Use: Journalism Can’t Succeed Without It

David Hansen on Scholarly Communications @ Duke,Fair use is for students, and artists, and researchers, and . . .

Brandy Karl on Copyright Portal at Penn State, Fair Use Reading List #WeAreFairUse

Marlo MacKay on The Libvine,Fair Dealing and Students

Meera Nair on Fair Duty,Six Factors if Necessary

New Media Rights,#FairUseWeek2017 – Fair use is copyright law’s safety valve for free speech

Re:Create,Lim, Gwyn: Fan Vidders” (includes videos)

Carrie Russell,Fair Use Poem

Kerry Sheehan on Electronic Frontier Foundation,Fair Use as Consumer Protection

Kit Walsh on Electronic Frontier Foundation,Copyright Law Versus Internet Culture

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Fair Use Fights Fascism: First Amendment Thoughts During Fair Use Week

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*This is a guest blog post by Kyle K. Courtney, Copyright Advisor at Harvard University, working out of the Office for Scholarly Communication.*

This year, I think, we should embrace and celebrate Fair Use Week more than ever. With our tumultuous political climate and daily shifts in the news cycle – this year I have thought a lot about fair use and its ties to our First Amendment rights.

As we know, the First Amendment has a great ideal: it protects political speech, promotes democratic culture, enhances participation in government, enables self-expression, and, hopefully, enhances the search for truth.

And, as our community is also well aware, copyright law can restrict uses. This is the nature of the law. Yes, we do grant a limited economic monopoly to the creator for a period of time. And even though U.S. law typically frowns upon monopolies (see the Shreman Act), that limited economic monopoly has an eventual benefit for that bargain with the public – eventually the rights will expire, and the public may use the materials freely.

However, through infringement suits, cease and desist letters, and other actions, a rightsholder does have the ability to stop certain uses during that long monopoly – uses such as printing, performing, or otherwise disseminating copyrighted works prematurely, before the expiration of rights into the public domain.

However, it is my belief, and others’ as well, that the fair use doctrine is intended to preserve, without infringement, the values enshrined in the First Amendment.

The fair use doctrine has been called an “internal safety valve” of copyrights’ potential overreach.

Fair use provides a narrow exception for certain types of limited uses. I use the safety valve analogy, as many others also teach, because fair use ostensibly guards against any chilling effect that would inhibit public speech. This prevents the type of “total control” if copyright holders were granted unlimited freedom to control all uses of their creative works.

Supreme Court Justice Stephen Breyer has written:

The First Amendment [must not be read] in isolation, but as seeking to maintain a system of free expression designed to further a basic constitutional purpose: creating and maintaining democratic decision-making institutions. (Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution, p. 39)

Fair use is a critical part of that purpose. Fair use’s preamble states that certain uses of copyrighted material will not be infringement, including such free speech tools such as news reporting, commentary, criticism, research, and scholarship. These tools are then harnessed by works such as journalism, filmmaking, songwriting, and scholarly publications of all kinds – works that in certain circumstances, absolutely need to use portions of the original works, fairly, to make their point.

For those like myself, that are students of history, the First Amendment’s language, “Congress shall make no law abridging the freedom of speech or of the press,” was part of the Bill of Rights which was specifically added to supplement the Constitution. The Bill of Rights was added to ease the fears of the anti-Federalists, who were concerned that the Constitution lacked the language and strengths to prevent our new government from turning into a tyranny. A tyranny we had just defied by winning the Revolutionary War.

So, from its anti-Federalist origins in the founding of this country, to the many Supreme Court decisions, and the greater public understanding, the First Amendment has always had direct correlation with the fundamental belief that open, informed discussion of current events helps create and maintain our democratic decision-making institutions.

In a federal case from 1986, Maxtone-Graham v. Burtchaell, the court stated about the fair use doctrine:

From the earliest days of the doctrine, courts have recognized that when a second author uses another’s protected expression in a creative and inventive way, the result may be the advancement of learning rather than the exploitation of the first writer. (Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1259 (2d Cir. 1986), emphasis added)

Furthermore, Democracy itself could be challenged if copyright owners could set massive financial and legal barriers so high that the public at large would be unable to access and use materials in a fair and open manner.

There is a strong public interest in allowing these fair uses. What if the author has a need to directly use copyrighted materials? Paraphrasing and summarizing could be insufficient to make the point. Or, more importantly, what if seeking permission would result in censorship? And there are plenty of situations when there is simply no reasonable alternative to obtain consent. In all these scenarios, we understand why fair use must prevail.

Let us take a moment to understand during this Fair Use Week, and every day really, that the fair use doctrine gives us great abilities: we can make fair uses of copyrighted materials to challenge “alternative facts,” to examine and re-use photographs, to post-and re-post videos, speeches, and other media, and to simply quote directly from sources – for the purposes of challenging those sources with our own commentary, criticisms, news reporting, and analyses.

That’s’ how you fight fascism and tyranny.

Fair use provides us with the ability to use, re-use, comment, report, and criticize and maintain our dogged pursuit of the truth. Open, informed discussion is how we maintain our democratic decision-making institutions, and fair use is a large part of that equation.

If you are celebrating Fair Use Week this year, consider yourself both a fair use advocate and a first amendment supporter!

Happy Fair Use Week!

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Roundup From Day 4 of Fair Use/Fair Dealing Week 2017

*Cross-posted from Fair Use Week*

Check out all the great posts from Day 4 of Fair Use/Fair Dealing Week 2017! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Infographic

University of Waterloo “Fair Dealing Myths and Facts

Videos

Haifa University Law and Technology Clinic, “Fair Use Week 2017”

MIT Libraries webcast with Guest Expert Kyle K. Courtney, “Fan Fiction and Fair Use

University of Virginia “Fair Use Week

Resources

Charlotte Roh, University of San Francisco, Presentation: Fair Use Week 2017 Brown Bag: Using Copyrighted Work in Your Course

Blog Posts/News

Jennifer Chan on University of California Office of Scholarly Communication, “Rocking Out to Fair Use

Erica Charis on Fair Use Week Tumblr, “Fair Use, Music, and MOOCs

Melanie Clark on Visual Resources Association blog, “The Intellectual Property Powder Keg: Fair Use and Contemporary Art Museums

Casie Fiesler, “Fair Use Barbie: Changing the narrative & the legality of remix

David Hansen on Copyright at Harvard Library blog, “Fair Use is for Innovation” (Cross-posted on Scholarly Communications @ Duke)

Ann Ludbrook on Ryerson University Library & Archive blog, “Fair Dealing Week: Copyright Review 2017

Marlo MacKay on Libvine “Faculty and Fair Dealing

Peter Martin, Sydney Morning Herald, “Schools and universities are charged millions for things that are free

The Ohio State University blog, “A Fair Use Week Interview with John Muir

Pamela Samuelson on Authors Alliance blog, “Can Fair Uses Be Made of Copyrighted Works for Online Courses?

Peggy Tahir on UCSF’s library blog In Plain Site, “Four Factors of Fair Use—The Third Factor: The Amount and Substantiality of the Portion Taken

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Roundup From Day 3 of Fair Use/Fair Dealing Week 2017

*Cross-posted from Fair Use Week*

Check out all the great posts from Day 3 of Fair Use/Fair Dealing Week 2017! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Videos

ACRL Presents Fair Use Week “Using Fair Use To Preserve and Share Disappearing Government Information: A Guide for Rogue Librarians” with Lillian Rigling and Will Cross, NCSU Libraries

Public Knowledge video “Let Them Go: A Copyright Policy Song

Brigham Young University Copyright Licensing Office on taking the fear out of fair use: “Fear Use

Let’s Talk Library video “Let’s Talk . . . Fair Use

Resources

New Media Rights, The Fair Use App

Blog Posts/News Articles

Leigh Beadon on Techdirt “Celebrate Fair Use With a New T-Shirt from Techdirt

Krista L. Cox on Copyright at Harvard Library. “Debunking Fair Use Myths” (Cross posted to ARL Policy Notes)

Cassie Deskus and Kristen Iglesias on Authors Alliance blog, “First Sale, Fair Use, And Digital Downloads: Capitol Records v. ReDigi

Copyright @ Western University, “Copyright Fair Dealing Analysis

Cory Doctorow on Boing Boing, “Let it Go, the Fair Use Week mashup version

Michael Geist, “The Copyright Lobby’s IIPA Report: Fake News About the State of Candian Coypright

Zan Gillies on CMSi blog, “Roger C. Memos: ‘Sweet Adversity’ and Fair Use

Julie Hare in The Australian, “Copyright laws ‘a hindrance to innovation’: Google

Marlo MacKay on The Libvine, “Fair Dealing: Why Is it Important?

Mike Masnick on Techdirt “The MPAA Versus Fair Use

Anali Perry on TeachOnline at Arizona State University, “Fair Use Week—Fair Use in Online Instruction

Shiva Stella on Public Knowledge, “Public Knowledge Launches Copyright Educational Video Based on Frozen’s ‘Let it Go’

Scholarly Communication @ Temple, “Fair Use from a Scholarly Publisher Perspective

Rebecca Tushnet on 43(B)log, “Reading list: aesthetic nondiscrimination and fair use

UCSF Library, “Four Factors of Fair Use—The First Factor: The Purpose and Character o the Use

UCSF Library, “Four Factors of Fair Use—The Second Factor: The Nature of the Copyrighted Work

University of Virginia Library News & Announcements, “Brandon Butler Suggests Simple Guideline for Celebrating Fair Use Week

Timothy Vollmer on Creative Commons blog “Copyright Filtering Mechanisms Don’t (and can’t) Respect Fair Use

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Roundup From Day 2 of Fair Use/Fair Dealing Week 2017

*Cross-posted from Fair Use Week*

Check out all the great posts from Day 2 of Fair Use/Fair Dealing Week 2017! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Podcasts

Re:Create Copy This Podcast Episode 4: Fair Use: You Use It More Than You Realize with Corynne McSherry (EFF)

Videos

CMSi, Fair Use Video Code: Documentary Filmmakers’ Statement of Best Practices

Blog Posts

Authors Alliance,Fair Use Week: Our Best Practices Guide is Underway

Jonathan Band on ARL Policy Notes Blog,Copyright Notice and Fair Use

Brandon Butler on Copyright at Harvard University Blog,Fair Use and Open Access: Two Great Tastes That Taste Great Together

Canadian Association of Research Libraries,CARL Statement in support of Fair Use/Fair Dealing Week 2017

Melanie Clark on Visual Resources Association Blog,Fair Use Week: Image Sources

EDUCAUSE,Fair Use

Ellen Euler, Anne Klammt und Oliver Rack on Deutsch Digitale Bibliothek,Bereit zu teilen?” (translation: “Ready to Share?”)

David Hansen on Scholarly Communications @Duke,Fair Use For Authors

Brandy Karl on Penn State Copyright Portal,Penn State Celebrates Fair Use Week 2017 #WeAreFairUse

Brandy Karl on Penn State Copyright Portal,Fair Use Myths & Facts #WeAreFairUse

Joshua Lamel,Fair Use: You Use It More Than You Realize

Mayra Linares on CMSi,How to Use Copyrighted Material in Your Work: Fair Use Week

Jeremy Malcolm, Electronic Frontier Foundation,Australia’s Battle Over Fair Use Boils Over

Jim Neal in The Hill,Balance is Everything

Stakebait on Archive of Our Own, “In Defense of Fanfiction (a sonnet to Fair Use)

Rebecca Reznik-Zellen on LSL Now,Fair Use Week 2017

Adrian Sheppard on The QUAD Where UAlberta Meets Online,The Importance of Fair Dealing

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Debunking Fair Use Myths

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*Cross-posted from Copyright at Harvard Library*

Many myths perpetuate in the world of copyright. There are myths about copyright term, copyrightability, and the most important exception to copyright: fair use. Fair use is, of course, an essential right that allows the use of copyrighted material without permission from the rightholder under certain circumstances. Without fair use, we might not have the great technological advancements like DVRs and search engines. Without fair use, there would be no parody, no critique, or mash-ups. Without fair use, scholarship and education would be severely hampered. Unfortunately, some myths surrounding fair use serve to severely limit this essential right or might cause confusion about what is actually a fairly predictable doctrine with plenty of existing guidance.

For Fair Use Week 2017, ARL commissioned an infographic on ten fair use myths and facts. This post focuses on two of those ten myths and facts. 

Myth: Fair use is a defense, or minor exception, not a right.

Fact: Fair use is a right that accommodates the First Amendment.

Often, we hear that fair use is a defense to copyright infringement. Rightholders categorize fair use as merely a defense that excuses copyright infringement. In reality, however, fair use is a critical right and Congress has recognized its status as a user’s right. Section 108 of the Copyright Act, which provides for the exceptions for libraries and archives, explicitly references “the right of fair use.”

Fair use must be viewed as a right because of its essential relationship to freedom of speech and expression. The Supreme Court has acknowledged the important role of fair use as a First Amendment “safeguard.” In Eldred v. Scott, for example, the Court noted that the idea-expression distinction for copyrightability standards and the fair use right are “generally adequate to address” First Amendment concerns and that these copyright elements serve as “built-in First Amendment accommodations.” The Court continues by explaining, because “The Copyright Clause and First Amendment were adopted close in time, [t]his proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles. Indeed copyright’s purpose is to promote the creation and publication of free expression.” The “Copyright Clause,” of course, refers to the constitutional purpose of copyright to “promote the progress of science and the useful arts.” Fair use supports both this purpose and the First Amendment. In fact, the only way to square the potential restrictions that copyright places on speech with the guaranteed right to freedom of expression, a flexible mechanism must exist to ensure that copyright does not conflict with free speech.

Today, more than ever, the First Amendment is fundamental to our democratic society. It is critical in ensuring access to information, both in terms of political and economic issues, but also in terms of arts and culture. Kyle K. Courtney’s Fair Use Week 2017 kickoff video, Fair Use Fights Fascism, discusses the importance of fair use to the First Amendment in today’s political climate. Beyond the importance of sharing information in the political discourse, as one of my former law professors, Joseph P. Bauer, pointed out in his article Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies,* “The First Amendment may also act as a societal safety valve. If people feel less free to communicate either orally or in written form, they may resort to less desirable forms of communication, including violent methods. The freedoms guaranteed by the First Amendment make it less likely that those alternatives will be necessary.”

Because of the role of fair use in protecting the First Amendment, it is correctly viewed as a right.

Myth: Where a specific limitation or exception exists under copyright law, fair use does not apply.

Fact: Fair use is a right that exists in addition to specific exception.

Another fair use myth is that where a specific limitation or exception exists under copyright law, a user cannot rely on the fair use doctrine. During the Authors Guild v. HathiTrust litigation, the Authors Guild argued that the actions of HathiTrust were impermissible because they went beyond the scope of the Section 108 library exceptions. The Authors Guild claimed that libraries could only perform activities explicitly laid out under Section 108 and that fair use was not relevant to the activities of HathiTrust. The Second Circuit rejected this argument—giving it no more weight than a footnote in its decision—noting that Section 108(f)(4) unambiguously permits fair use to work in tandem with the specific exception: “Nothing in this section . . . in any way affects the right of fair use as provided by section 107 . . .”

Even beyond the explicit savings clause under Section 108, fair use clearly works in tandem with other specific limitations and exceptions. The Authors Guild also tried to claim that HathiTrust’s provision of accessible format copies to those with print disabilities violated copyright. Although Section 121 of the Copyright Act provides for a specific exception for the creation and distribution of accessible works, the Second Circuit turned first to the fair use doctrine and found that this activity is, indeed, a fair use. As a result, the Second Circuit found “we need not consider” whether the activity was permitted under the specific exception in Section 121.

While specific exceptions provide certainty for particular activities or apply where fair use does not, they do not exclude the applicability of fair use. Instead, the specific exceptions essentially provide a safe harbor while fair use accommodates not only other uses, but also responds to changes in technology or circumstances, effectively updating the specific exceptions.

In fact, specific exceptions may actually be evidence that Congress recognizes a strong public policy interest in permitting these types of uses and the first fair use factor (the purpose and character of the use) should therefore tilt in favor of the user. Jonathan Band has written an excellent article, The Impact of Specific Exceptions on Fair Use, making this argument. The Association of Research Libraries, together with other library organizations and the Internet Archive, also advanced this argument recently in its amicus brief in Capitol Records v. ReDigi.

Fair use is critical to a balanced copyright system and it’s a shame that there are so many myths around this important right. Hopefully we can continue to celebrate fair use every day—giving it a little bit of extra love this week—and help dispel some of these myths.

You can see all ten fair use myths and facts here and learn more about Fair Use/Fair Dealing Week here.

 

*In his article, Professor Bauer argues that the idea-expression dichotomy and fair use doctrine ameliorate the conflict between the Copyright Act and the First Amendment, but that they are insufficient. He advocates for an external mechanism—beyond the internal mechanisms of the idea-expression distinction and fair use—to promote greater protections for the First Amendment.

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Infographic: Fair Use Myths and Facts

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*Cross-posted from ARL News*

In conjunction with Fair Use/Fair Dealing Week 2017, the Association of Research Libraries is releasing an infographic that refutes 10 popular misperceptions about fair use (PDF). Fair use and fair dealing are vitally important rights for everybody, everywhere—students, faculty, librarians, journalists, and all users of copyrighted material. These doctrines provide balance to the copyright system by allowing the use of copyrighted resources without permission from the rightsholder under certain circumstances, thereby promoting creative progress and accommodating freedom of expression.

Screenshot 2017-02-21 11.21.29

The “Fair Use Myths & Facts” infographic is freely available as a PDF to embed on blogs and websites and to print and hand out at events. Share the link, embed the PDF on your site, print copies for your next event, and continue to support and work with your partners on promoting fair use.

Fair Use/Fair Dealing Week is an annual, community celebration coordinated by the Association of Research Libraries to promote the opportunities presented by fair use and fair dealing, highlight successful stories, and explain these doctrines. Fair Use/Fair Dealing Week 2017 is being observed this week, Monday, February 20, through Friday, February 24. You can participate on a single day during the week, multiple days, or the full week—publish a blog post, host an event, share resources. Visit fairuseweek.org to participate or find additional resources.

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Copyright Notice and Fair Use

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*This is a guest blog post by Jonathan Band, policybandwidth*

The absence of a copyright notice on content posted by its author on the Internet should weigh in favor of fair use of that content, by libraries and other users, under the second fair use factor.

Until the United States joined the Berne Convention in 1989, a work could fall into the public domain if it was published without a copyright notice. The notice had to include the copyright symbol, the name of the copyright owner, and the year of first publication. The Berne Convention prohibits “formalities” as a condition for protection, so once the United States joined the Berne Convention, it eliminated the notice requirement.

However, the Copyright Act still provides an incentive for including a copyright notice. Under 17 U.S.C. § 401(d), if a copyright owner applies a copyright notice to his work, no evidentiary weight may be given to a defendant’s claim that he is an innocent infringer in mitigation of damages. In other words, if the copyright owner applied a notice, a defendant can’t claim the infringement was innocent because he or she “was not aware, and had no reason to believe, that his or her acts constituted an infringement….” This means that the defendant can’t seek reduction of the statutory damages minimum from $750 to $200 per work infringed.

The Copyright Act does not set forth what impact copyright notice should have on the fair use analysis. Nor, as far as I am aware, does the fair use case law. But a powerful argument can be made that the absence of a copyright notice should weigh in favor of fair use under the second fair use factor.

The second fair use factor—the nature of the copyrighted work—receives little attention by courts. They typically ask whether the work is published or unpublished, and whether it is a work of fact or fiction. Robert Kasunic has argued that courts should take a more nuanced view of the second factor. In particular, Kasunic contends that the second factor should be understood to ask “whether copyright might have reasonably encouraged or provided an incentive for an author to create the work.” Kasunic adds that “once we understand the work and the reasonable and customary expectations of authors for that type of material, we can better understand how various uses might affect the incentive to create such works.” Significantly, the starting point for Kasunic’s analysis is Judge Leval’s famous law review article Toward a Fair Use Standard. With respect to the second factor, Kasunic explains that Judge Leval “recognized the need to distinguish between authors of works for whom copyright provided an incentive to create and those authors who were incidental beneficiaries of copyright.”

It is hard to imagine a clearer indication of an author’s expectations concerning her work—whether she intends to use copyright to control subsequent uses of her work or instead is an “incidental beneficiary” of copyright—than whether she attached a copyright notice when she published it. In many situations, a user could reasonably assume that by omitting notice, the author was signaling that she did not expect to rely on copyright to control reproduction and distribution of the work. In such situations, the author’s failure to place a notice on the work should weigh in favor of fair use under the second factor.

What are these situations? Daily, millions of photographs, videos, blogs, songs and other works are posted on the Internet. Many (if not most) of these works are posted without copyright notice. The terms of service of large social media platforms such as Facebook specify that users agree that everyone may use their content published on the platform. But vast quantities of content are posted on other websites that do not have such terms of service. People repost these works without requesting the author’s permission and without incurring the author’s opposition.

In the event the author of such a work did challenge a reuse, fair use is the legal theory that would best support the lawfulness of the reuse. And the absence of copyright notice should buttress the fair use calculus under the second factor. A user could reasonably interpret the absence of notice as a signal that the author did not expect to rely on copyright to control the reproduction and distribution of the work—that the author is just an incidental beneficiary of copyright. Of course, this is just one element of one factor, and would not be dispositive of the fair use question. And if there were indicia that the work was posted on the website without the author’s authorization, then the absence of notice should have no weight.

Factoring the absence of notice into the fair use calculus could be of particular importance to libraries interested in harvesting content posted on websites. Although the existing fair use case law is very strong for the preservation of this content and its inclusion in search databases, the jurisprudence is less developed with respect to providing access to full text or full-sized images. The argument that the author’s failure to include notice tilts the second factor in favor of a fair use determination should give libraries additional comfort as they decide what to do with web content they have collected.

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