Campbell conference: Judge Leval keynote

Keynote Address: The Honorable Pierre Leval
Earned a reversal rate of 67% in his significant fair use cases; at the cutting edge of law in the role of the salami.  Campbell: good framework for authors, without manacles on science.
The law before Campbell: with the exception of Story’s spare but well targeted caution in 1841 that fair use must not supersede the objects of the original, courts had failed to distinguish between infringement and fair use; decisions made largely from the gut. The notion that commercial uses were presumptively unfair plagued fair use analysis until blunted by Campbell.  He is also dubious whether Sony’s fair use analysis was correct at all—seems like an outlier.
Harper & Rowemitted numerous distracting aphorisms. Repeated Sony’s pernicious declaration of hostility to commercial uses; asserted that quotation from unpublished works tends to negate fair use. If correct where there was a scoop of imminent publication, couldn’t be correct when it reveals facts the rightsholder tries to conceal—e.g., hypothetical correspondence between Nixon and Ford promising a pardon in return for agreement to resign.
There is need to test accuracy of factual works, allowing quotation. But that doesn’t mean you can copy wholesale from an earlier treatment of same subject just because it’s a factual topic—again contrary to Harper & Row. And finally, the Court erred in saying “fair use presupposes good faith and fair dealing,” in reference to the Nation’s scoop/unauthorized access.
Campbell brought an end to this bad piloting and aimless drift.  Undertook at last to explain fair use in terms of the goals of copyright: protection of author’s exclusive right to publish for profit while allowing for the enrichment of public understanding to advance new objectives or achieve new understandings so long as there isn’t too much interference with the author’s market. Most important: Campbelltaught us not to look too hard for answers in the words of the statute, because Congress clearly did not intend to tell us what fair use was but rather to acknowledge the doctrine’s existence, leaving further development to the courts. Judges often feel insecure w/copyright cases and the doctrine is quite complex. Would have been better for Congress to say “fair use is not an infringement.”
Campbell reinforced Story’s insistence on superseding the object of the original, and rejected anti-commercial law. Negated/cast doubt on continuing validity of Nation’s good faith requirement. Cautioned courts in cases raising nonfrivolous fair use defenses to be hesitant to enjoin.
Asking: whether the copying pursues a different objective, and does it compete significantly with the original by offering itself as substitute in a market the law reserves to the copyright owner? These are intertwined questions. More divergence in objectives, less likely competition in original’s exclusive markets.  Substitution needs to be more than trivial.
Campbell’s touchstone is copyright’s touchstone. A © law without fair use would fail to satisfy copyright’s objectives. Coming just before the dawn of the internet, Campbell was prescient or just lucky in formulating a mode of analysis that could answer new questions arising in droves in the digital age.
How is Campbelldoing? The view that complete unchanged copies can’t be fair use is arbitrary/incompatible with objectives of copyright. Would be disastrously limiting. Innumerable valuable functions are served by complete copies that don’t harm copyright owner’s market.  Only way to explain how bad L. Ron Hubbard was is to quote big chunks of his letters.
Internet: innumerable copies of the entirety; numerous well-reasoned decisions allow complete copies if the copying expands knowledge about the copied items—e.g., Kelly v. Arribasoft, where low resolution protects against substitutions  iParadigms: detecting plagiarism.  HathiTrust: tool for identifying and locating books that use a particular word/subject.
Another objection is that under Campbell, transformativeness may override the fourth factor. Courts need to determine whether the secondary work competes with a derivative work of the original.  These aren’t criticisms of Campbell but of misinterpretations thereof. Public benefit is important, but not at the expense of the fourth factor.  Campbell said so and remanded for factfinding on that point.  Lower courts may be speaking incautiously, or in the absence of a plausible argument based on derivative rights, when they discuss only the market for the original.
Vagueness and unpredictability: Predictability is a good thing, but bright line rules are likely to produce bad results in complicated situations.  Ultimate loser is the public, the primary intended beneficiary of copyright.  Injury occurs regardless of whether fair use is construed too broadly, deterring creation, or too narrowly. Any bright line test he’s seen suggestion would either place unreasonable restraints on creativity or diminish the rights of copyright owners. Hard to imagine a better test with more acceptable results.
Also doesn’t agree with unpredictability claim. Courts of appeals cases seem to have produced reasonable/predictable results.
Posner argues that instead we should look to complement/replacement relationship.  Complement: hammer & nails. Is the D’s work a complement?  Posner says book reviews are complements to books. If reviews depended on permission of publisher, public would distrust reviews. Thus, both sides benefit from the right to quote without permission, and consent to quote can be inferred from overall benefit of quotation rights to publishers.  Respectfully, nope. This may work fine for the book review example, but not other heartland examples.  (RT: I think it doesn’t work for book reviews—it assumes that book review readers know the law and take it into account in their credibility determinations, and that this is why publishers generally refrain from trying to license book reviews. That is implausible.)  Consider when secondary author is investigative reporter who quotes from unpublished works to reveal crimes, bigotry, corruption, etc.  There would not be general permission.  So too with parody.  Few authors are eager for ridicule.  Complementary formula would kill off many forms of fair use.
A futher problem: the word complementary perfectly describes classic derivative works. Novel to film or cartoon character to plush toy or translation of poem into another language. 
Overlap with derivative works right: it doesn’t follow from ambiguous language that transformativeness is inappropriate to signify the crux of the factor one inquiry.  Hasn’t heard a better word for that question: Is there a productive change?  The word derivative suffers from the same ambiguity.  “Transformative” was never intended as a full definition of fair use.
Congress wasn’t defining derivative works, but legislating in an older mode, using courts as partners by using a list of examples conveying the types of transformations Congress had in mind as derivative works, leaving courts to formulate a standard that would accomplish Congress’s goal. Campbell didn’t say much on this: only those markets that creators would in general develop.  That’s a limitation, not a scope: makes sense as a limitation preventing authors from enlarging the scope of their rights by making offers to license parody. But Campbelldidn’t explore the territory covered by derivative right. 
Focus on nature and purpose of copyright can provide a helpful approach. © protects author’s manner of expression. Examples in statutory list are works that seek to re-communicate expression of original converted into different form or medium. The more the aim of the secondary copying is to communicate the original author’s manner of expression in changed form without commentary on it or providing information about it, the stronger the argument for classification as a derivative work. The more the new work undertakes to communicate attitudes or information about the work, the more it goes to fair. If you love it for the same reason—it re-presents original creation in a new form—then it’s derivative.
Few pronouncements more harmful to fair use than that fair use presupposes good faith and fair dealing.  Good faith requirement would undermine ©’s primary goal of enriching public knowledge, and have bad consequences for all. © is a commercial right given to stimulate creativity to benefit society at large.  Any right to suppress facts, ideas, fair use would be harmful.  User’s good or bad faith has no bearing on the copyright law’s goal. Shouldn’t matter if secondary author obtained copy by armed robbery: there are other remedies for that.  Good faith would also impose huge inefficiencies/uncertainties on everyone concerned. Fair use should generally be resolvable on the pleadings or at most on sj.  If moralistic evaluation of conduct is important, courts will frequently be unable to decide a case pretrial. SCt should finish the job and expressly disavow the Nation’s terrible statement.
Copyright and freedom of the press are uncomfortable bedfellows. © might have trouble being constitutional without express authorization; if too broad, still intolerable clash w/free press. Fair use is 1A’s agent within the framework of copyright, converting conflict into synergy.
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