Reading list: Campbell at 21/Sony at 31

Jessica Litman, Campbell at 21/Sony at 31. As you’d expect, insightful and a pleasure to read. Extracts:
When copyright lawyers gather to discuss fair use these days, the most common refrain is its alarming expansion. This distress about fair use’s enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights.  
The idea … that copyright owners’ rights could be greatly inflated without inspiring a comparable expansion in fair use seems delusive. If many, many more uses are arguably prima facie infringing now than before, it follows that fair use will need to stretch to permit more of them. None of the voices expressing the hope that fair use could be confined or returned to its mid-20th Century boundaries seem to endorse a proposal to cut back copyright rights to their mid-20th Century limits. …
When Congress enacted the 1976 Act, it apparently believed that consumers’ personal copying would not subject them to liability for copyright infringement under the new statute, but nothing in the language of the statute made that understanding explicit. Congress did not consider and did not provide for claims that making devices that facilitate consumer infringement might subject device makers to infringement liability. The Sony case, filed shortly after the Act’s enactment, raised both questions.  Confronted with a choice between finding liability where Congress had not intended to impose it or construing the statute to reach a narrower set of uses than the literal language might warrant, the Supreme Court settled on a new formulation of the fair use privilege that allowed it to avoid finding Sony liable for consumers’ personal copying. That fair use analysis wreaked a lot of mischief in the decade it controlled, chiefly by making it much more difficult for commercial uses to claim their uses were fair. It also, for good or ill, encouraged both consumers and businesses to structure their interactions around the assumption that consumers’ personal copying would normally be fair use. In 1994, the Court decided Campbell, and replaced the analysis it had adopted in Sony with a test that focused primarily on the transformativeness of the allegedly fair use. It left the implications of that change for secondary liability and consumer personal uses uncharted.
. . . Advocates for copyright owners resist any proposal to incorporate specific privileges and exceptions into the statute to privilege uses that Congress deems non-infringing. They warn that any new privilege or exception poses a grave risk that future pirates will make use of the privileges to shield wrongful behavior.  The uncertainty surrounding consumer liability, moreover, is itself a weapon that can be deployed against newfangled trumpet makers and the venture capital firms that might fund them.  With no specific exceptions, though, courts have little recourse but to construe fair use as expansively as they have recently construed copyright rights. And that is very expansively indeed.
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