Surreal Testimony on Copyright Issues in Education and for the Visually Impaired

I tried to view the statement of Roy S. Kaufman, Copyright Clearance Center, in relation to the “Copyright Issues in Education and for the Visually Impaired” Hearing Before the House Committee on the Judiciary’s Subcommittee on Courts, Intellectual Property, and the Internet (Nov. 19, 2014)

Screen Shot 2014-12-05 at 8.46.51 AM

Screen Shot 2014-12-05 at 8.46.57 AMScreen Shot 2014-12-05 at 8.46.03 AM

It might just be an issue with my browser, but I prefer to think of it as a surrealist commentary by those responsible.

#Aereo was always doomed to fail

and today it filed for Chapter 11 bankruptcy.

I have added some final thoughts on fair use to my review of the Aereo decision. You can download the Article from ssrn at this link (http://ssrn.com/abstract=2529047 …).

The main addition to my post from a few days ago is the following paragraph:

Unlike Cablevision’s remote-DVR, Aereo was an unlikely candidate for fair use. Holding that a remote DVR is fair use would be logical extension of the Supreme Court’s 1984 Sony Betamax decision. Like a VCR, a DVR simply allows the consumer to do that which they were already authorized to do more conveniently. No doubt, Aereo would make the same argument with respect to its service, but there is one critical difference. Judge Chin’s intuition that Aereo’s design was a mere “Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act,” was spot on; however a technological contrivance should not be the foundation for a legal contrivance. The very fact of Aereo’s contrivance to avoid the public performance right is the reason why it’s fair use claim should fail. Congress amended the Copyright Act in 1976 to make the retransmission of free to air television broadcasts an additional copyright tolling point. There could not be a better argument against fair use than the fact that Aereo’s service was designed to defeat the purpose of the statute. There was no need for the Supreme Court to adopt such a tortured and opaque reading of the transmit clause of the public performance right. Aereo could have been decided as simple fair use case.

Comments on Joseph Fishman, “Creating Around Copyright” Harvard Law Review, Vol. 128, Forthcoming.

Joseph Fishman presented his forthcoming paper, Creating Around Copyright at the UCLA Entertainment, Media, and Intellectual Property Colloquium Workshop this weekend. The paper argues that rather than seeing copyright as a system of access costs that create incentives, we should recognize that copyright may actually spur additional creativity by virtue of the very constraints it establishes.

I like this paper a lot, but the treatment of copyright as a singular constraint that just varies by questions of degree seemed a bit reductionist to me. The constraints copyright imposes are in fact quite uneven. For example, the fair use doctrine privileges transformative uses, however it is much easier to be confident that a reuse that criticizes the original is transformative compared to one that is simply a new work. Thus, at the margins, copyright encourages criticism, not necessarily creativity. Furthermore, the idea-expression distinction encourages differentiation at the level of superficial characteristics, but allows the uncreative recirculation of ideas. Thus Westside Story is less likely to infringe Shakespeare’s (non-existent) copyright than is the far more creative Rosencrantz and Guildenstern Are Dead.

This is undoubtably a clever and well-written article although some of its claims to significance may be inflated. If some all-knowing accountant were to tally up the costs and benefits of copyright, it seems quite unlikely that the generativity of constraint would count for very much in the grand scheme of things.

The Uncertain Scope of the Public Performance Right After American Broadcasting Companies v. Aereo, Inc.

Professor Matthew Sag, Loyola University of Chicago School of Law.  November 18, 2014

This post is based on a summary I wrote for the ABA IP Litigation Roundtable

Summary

The Supreme Court’s recent majority decision in American Broadcasting Companies v. Aereo, Inc. 134 S.Ct. 2498 (2014) holds that a service allowing consumers to watch broadcast television programs over the Internet virtually simultaneously with the original over the air broadcast directly infringes the copyright owners the exclusive rights to “perform the copyrighted work publicly.”[1] The majority overrules the Second Circuit ruling in the same case,[2] and throws into doubt one of the central holdings in the Second Circuit’s Cablevision decision.[3]

Background

Aereo’s service is just one of a long sequence of technologies raising conflicts between the interests of content owners and technology companies. In the late 1960’s and early 1970’s community antenna television (CATV) systems challenged the incumbent television broadcasters by retransmitting television signals to CATV subscribers. The CATV provider in Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968) placed antennas on hills above the cities and used coaxial cables to carry the signals received by the antennas to the home television sets of its subscribers. The CATV provider in Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394 (1974) carried broadcast television programming into subscribers’ homes from hundreds of miles away. In both these cases the Supreme Court held that the CATV systems were more like a viewer than a broadcaster and thus were not themselves engaged in a public performance.

There is no doubt that the revised definitions of what it means to perform and to perform a work publicly in the Copyright Act of 1976 were motivated in part by a desire to reverse the outcome of the CATV cases. However, the language Congress adopted to that end is anything but clear, and the actual scope of the public performance right has been a controversial question for some time.

Aereo

Aereo offered consumers the ability to watch live television over the internet and to pause, rewind and fast-forward programming. Aereo provided this service by receiving free to air television signals on a vast array of micro-antennae. Each antenna was dedicated to an individual subscriber, but only when the subscriber tuned in. The receivers were thus under the subscribers’ individual control. The television signals so received were reduced to individual copies of individual programs, but only if a subscriber indicated an intention to watch the program. These copies were then transmitted to Aereo’s subscribers at their command, either in real time with a very slight lag, or asynchronously like other remote DVR services.

The Second Circuit

On appeal from the denial of a preliminary injunction, the Second Circuit held that Aereo’s system did not implicate the copyright owners’ public performance rights under the Copyright Act because each transmission was from a single fixed copy to a single end-user. Consistent with its ruling in the Cablevision remote DVR case, the Second Circuit held, although Aereo’s system may transmit any given program to a large number of end-users, Aereo did not perform publicly within the meaning of the Copyright Act because it did not transmit “to the public.” Rather, each time Aereo streamed a program to a subscriber, it sent a private transmission that was available only to that subscriber. Judge Chin dissented, arguing that “Aereo’s “technology platform” is, however, a sham. The system … is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.”

The Supreme Court

— Who is the performer?

Aereo’s service was evidently designed to take maximum advantage of the precedents holding that the provider of an automated service does not engage in the volitional conduct required for direct copyright liability.[4] There is no obvious engineering reason to give each subscriber their own micro-antenna, however, this design choice emphasizes that it is the user, not Aereo, that choses to receive the broadcast signal, transcode (or reformat) that signal, make a copy of the selected program and ultimately transmit the program by pressing the “watch” button on their internet connected device. Relying on the volitional conduct cases, Aereo argued that it was not directly liable under the public performance right because it merely provided the equipment that its subscribers used and controlled.

Writing for a six Justice majority, Justice Breyer acknowledged that

“the language of the Act does not clearly indicate when an entity ‘perform[s]’ (or ‘transmit[s]’) and when it merely supplies equipment that allows others to do so.”[5]

The majority opinion does not engage with the distinction between direct and contributory copyright liability, nor does it directly address the cases on the ‘volitional conduct doctrine’ (see more below). The majority simply holds that cable systems perform and Aereo is like a cable system, thus Aereo performs. More specifically, the majority holds that in view of the legislative history and the manifest intention of Congress to make cable retransmission services liable for copyright infringement,[6] “an entity that acts like a CATV system itself performs, even if when doing so, it simply enhances viewers’ ability to receive broadcast television signals.”[7]

This broad construction of performance does not demand a rejection of the volitional-conduct doctrine in general. Indeed, the holding may be limited to services that “act[] like a CATV system”. Even in Cablevision the court recognized that “our conclusion … that the customer, not Cablevision, ‘does’ the copying does not dictate a parallel conclusion that the customer, and not Cablevision, ‘performs’ the copyrighted work.”[8]

Justice Scalia, in dissent, argued that the expanded definition of performance under the 1976 Act was still consistent with the volitional-conduct requirement. Unlike the CATV services in Fortnightly and Teleprompter, the Aereo system did not send a constant transmission stream to its subscribers. Instead, the system remained inert until a subscriber sent the ‘watch’ command. Only then, and quite automatically, would the Aereo system activate an antenna and begin to transmit the requested program. Thus, even though both sender and receiver of a conventional broadcast could be said to ‘perform’ because both engage in an affirmative volitional act, only the user of an automated system performs when she alone initiates and receives a transmission.[9]

The majority dismissed this argument noting that the “sole technological difference between Aereo and traditional cable companies” was invisible and meaningless to Aereo’s subscribers and to Aereo itself.

But this difference means nothing to the subscriber. It means nothing to the broadcaster. We do not see how this single difference, invisible to subscriber and broadcaster alike, could transform a system that is for all practical purposes a traditional cable system into ‘a copy shop that provides its patrons with a library card.’[10]

— Public Versus Non-Public Transmissions

Aereo argued, and the Second Circuit agreed, that it did not perform the plaintiff copyright owners works “publicly,” within the meaning of the so-called ‘Transmit Clause’. In addition to the general definition of performance, the 1976 Act contains a two-part definition of what it means to “perform or display a work ‘publicly’”.[11] Subsection (1) guides courts as to where the draw the line between public and non-public places. Subsection (2) of that definition, which is generally simply referred to as the Transmit Clause, provides that an entity performs a work publicly when it “transmit[s]… a performance … of the work … to the public.”

Justice Breyer was willing to assume arguendo (although with some skepticism) that the relevant performance referred to in the Transmit Clause is not the copyright owners’ initial broadcast, but the new performance created by Aereo’s act of transmitting.

That performance comes into existence when Aereo streams the sounds and images of a broadcast program to a subscriber’s screen. … Thus, for present purposes, to transmit a performance of (at least) an audiovisual work means to communicate contemporaneously visible images and contemporaneously audible sounds of the work.[12]

Nonetheless, Justice Breyer argued that Aereo’s attempt to sidestep liability for public performance by interposing discrete copies did not distinguish its service from that of a cable system in terms of Congress’s regulatory objectives. Justice Breyer noted that the behind-the-scenes technical details of how Aereo delivered television programming to its viewers did not change Aereo’s commercial objectives or its subscribers’ user experience.[13] Traditionally copyright law has relied upon secondary liability to address attempts to evade liability that nonetheless are clearly at odds with Congress’s regulatory objectives.[14] However, the Aereo majority indicated that the defendant’s intervening user-specific copies could simply be regarded as an elaborate “device or process” by which the company made its transmissions. The majority has thus converted the broad by any “device or process” language in the Act into an anti-avoidance provision.[15]

While accepting that the relevant performance under the transmit clause was the new performance created by the act of transmission, Justice Breyer nevertheless concluded that “when Aereo streams the same television program to multiple subscribers, it ‘transmit[s] … a performance’ to all of them.”[16] The Transmit Clause indicates that that one may transmit a performance to the public capable of receiving it at the same time or at different times. For Breyer, this necessarily implies that “an entity may transmit a performance through one or several transmissions, where the performance is of the same work.”[17] Previous case law had seemed to require that for such asynchronous transmissions to be aggregated, they had to be made from the same copy of a work.[18] In contract, Justice Breyer concluded that

when an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it transmits a performance to them regardless of the number of discrete communications it makes.[19]

However, Justice Breyer added an important qualification to the foregoing: whether a group of people constitutes ‘the public’ depends upon their relationship to the underlying work.

an entity that transmits a performance to individuals in their capacities as owners or possessors does not perform to “the public,” whereas an entity like Aereo that transmits to large numbers of paying subscribers who lack any prior relationship to the works does so perform.[20]

Uncertainty in the Wake of Aereo

In re Cellco Partnership,[21] the district court held that downloading a ringtone to a cell phone is a reproduction but not a public performance. The clearest implication of the Aereo decision is that the Supreme Court has maintained this distinction between downloading and streaming (the former being a copy, the latter being a performance). The majority insisted that “an entity only transmits a performance when it communicates contemporaneously perceptible images and sounds of a work.”[22] That issue aside, Aereo leaves open a wide range of follow-up questions.

Remote DVRs

1.  Most obviously, copyright owners may now wish to relitigate the legality of remote DVR services. The Second Circuit’s Cablevision decision relies on the volitional-conduct doctrine in relation to copies made at the direction of DVR subscribers and the non-aggregation of transmissions made from separate copies of the work in relation to the question of public performance. Each of these pillars may be challenged in the wake of Aereo. However, I expect that even if the reasoning changes, lower courts will not find remote DVR services liable for direct infringement. There is enough language in Aereo to limit its holding two services that are primarily focused on simultaneous retransmission.

Remote DVRs that let you pause and rewind live tv

2.  The decision also leaves open the question of services that are primarily intended to act as remote DVR’s but which could also be used for near simultaneous viewing of live television. Moreover, cable companies will take heart from the Court’s suggestion that whether a group of people constitutes the public depends upon their relationship to the underlying work. Cable services are authorized to retransmit broadcast television under the terms of a statutory license. The public at large is authorized to receive unencrypted broadcast television signals — at least within the ordinary transmission range of such signals — so it is unclear whether cable TV customers really have a different relationship to the underlying work than Aereo’s subscribers did.

Does the cloud look like a cable system?

3. More broadly, if separate asynchronous transmissions originating from distinct copies of a work are to be aggregated for the purpose of copyright’s public performance right, what does this mean for cloud computing services? The Second Circuit’s interpretation of “to the public” made it quite clear that video-on-demand services would implicate the public performance right, but that online cloud storage providers such as Dropbox and Amazon Cloud Drive would not.

The majority’s ‘looks like a cable system’ approach makes the public performance right almost incomprehensible. Is the aggregation transmissions from distinct copies limited to services directly analogous to cable retransmission? Is it limited to services engineered to avoid public performance liability? The majority’s comment that the legislative history compelled the determination that Aereo performs but that “it does not determine whether different kinds of providers in different contexts also perform” suggest either of these might be possible.[23]

What is it about cable systems that is important?

4.  If future public performance cases turn on the resemblance of an accused service to cable television, which characteristics of a cable service will courts deem to be most relevant? Justice Breyer’s decision indicates that courts will be more focused on commercial motivation and user experience than specific technical details.

Technological neutrality: effects vs. function

5.  Aereo raises fundamental questions about copyright and technology neutrality. If technological neutrality is a question of the effect of a given technology, then Aereo was, in effect, a retransmission system and thus it was, in effect, engaged in public performance. But if technologically neutrality is a question of function, then Aereo was in fact an elaborate copying service and not the originator of public performances. Like Judge Chin’s dissent at the Second Circuit Court of Appeals, Justice Breyer’s majority opinion takes an effect-based perspective. Will the Court use an effects-based approach to expand other exclusive rights under the Copyright Act?

What happened to Aereo?

On October 23, 2014, the Federal Southern District Court of New York granted an injunction against Aereo “barring Aereo from retransmitting programs to its subscribers while the programs are still being broadcast”.[24] The plaintiffs sought an injunction against Aereo’s fully time-shifted transmissions, the district court did not rule this out, but merely said it would “not reach the issue at this preliminary stage of the litigation.”

Footnotes

[1] 17 U.S.C. § 106(4).

[2] WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2013).

[3] Cartoon Network LP, LLLP v. CSC Holdings, Inc. 536 F.3d 121 (2008).

[4] See Fox Broadcasting Co. v. Dish Network LLC, 747 F.3d 1060, 1066-1068 (C.A.9 2014); Cartoon Network, supra, at 130-131 (C.A.2 2008); CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 549-550 (C.A.4 2004). Religious Technology Center v. Netcom On-Line Communication Services, 907 F.Supp. 1361 (N.D.Cal.1995). See also Parker v. Google, Inc., 242 Fed.Appx. 833, 836-837 (2007) (per curiam) (3d Cir. Unpublished)

[5] American Broadcasting Companies v. Aereo, Inc. 134 S.Ct. 2498, 2504 (2014).

[6] The drafters of the Copyright Act of 1976 clearly intended to include both the sender and the receiver of a traditional broadcast within the definition of ‘to perform’ and thus overturn contrary Supreme Court authority. See Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975) (“those who listen to the broadcast through the use of radio receivers do not perform the composition”). See also Fortnightly Corp. v. United Artists, 392 U. S. 390 (1968) and Teleprompter Corp. v. CBS, 415 U. S. 394 (1974).

[7] American Broadcasting Companies v. Aereo, Inc. 134 S.Ct. 2498, 2506 (2014).

[8] Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F. 3d 121, 134 (2d Cir. 2008).

[9] American Broadcasting Companies v. Aereo, Inc. 134 S.Ct. 2498, 2512-13 (2014).

[10] Id. at 2507.

[11] 17 U.S.C. §101.

[12] American Broadcasting Companies v. Aereo, Inc. 134 S.Ct. 2498, 2508 (2014). If the Court had held otherwise it would have not only overturned Cablevision, but also United States v. American Soc. of Composers, Authors and Publishers, 627 F.3d 64, 73 (2d Cir. 2010) (holding that a download of a work is not a performance because the data transmitted are not “contemporaneously perceptible”).

[13] “Why would a subscriber who wishes to watch a television show care much whether images and sounds are delivered to his screen via a large multisubscriber antenna or one small dedicated antenna, whether they arrive instantaneously or after a few seconds’ delay, or whether they are transmitted directly or after a personal copy is made?” Id. at 2509-10.

[14] See e.g. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).

[15] The Copyright Act aims for neutrality in that the public performance right is defined to include the right “to transmit or otherwise communicate a performance… to the public, by means of any device or process.” § 101. But it is far from clear that the “by means of any device or process” language means that non-public transmissions should be rendered into public transmissions simply because they have the same effect as technology we recognize as implicating the public performance right.

[16] Id. at 2509.

[17] Id.

[18] Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984) Defendant operated a video rental store with a number small private booths. Patrons would select a film, enter the booth, and close the door. An employee would then load a copy of the requested movie into a bank of VCRs at the front of the store and push play, thereby transmitting the content of the tape to the television in the viewing booth. By showing a single copy repeatedly to different members of the public the defendant engaged in a public performance.

[19] Id.

[20] Id. at 2510.

[21] 663 F. Supp. 2d 363, 371–74 (S.D.N.Y. 2009).

[22] Id.

[23] Id.

[24] American Broadcasting Companies, Inc. v. Aereo, Inc., (SDNY 2014).

Do not upgrade to Yosemite.

I am that burning feeling of rage as the computer freezes, then restarts with the last 15 minutes of beautifully crafted prose about the definition the the Transmit clause under the Copyright Act lost forever.

I switched to a Mac to avoid this feeling.

Screen Shot 2014-11-13 at 6.39.04 AM

 

 

 

 

 

 

Post Script: Dealing with a problem in the startup file seems to have resolved this instability.

Tyler Ochoa on Flo & Eddie v. Sirius XM Radio

Professor Tyler Ochoa has written a great post explaining the implications of Flo & Eddie v. Sirius XM Radio. 

Follow this link to Eric Goldman’s blog: A Seismic Ruling On Pre-1972 Sound Recordings and State Copyright Law.

“A federal court in California has held that a California statute, Civil Code §980(a)(2), protects sound recordings fixed before February 15, 1972 against unauthorized public performance.  The ruling is a … huge victory for sound recording copyright owners and a big defeat for broadcasters, one that threatens to undo a 75-year-old consensus that state law does not provide a public performance right for sound recordings. …”

Authors Guild v. Google will be argued in the Second Circuit on December 3rd

This means we could get a decision before the case’s 10 year anniversary!

Docket Number: 13-04829 in United States Court of Appeals for the Second Circuit
Title: The Authors Guild v. Google, Inc.
Date Filed: 12/23/2013
Docket Proceedings
Docket Filed # Docket Text
143 09/30/2014 CASE CALENDARING, for argument on 12/03/2014 at 2:00pm, SET.[1332695] [13-4829]

Chicago Kent Roundtable on Empirical Methods in Intellectual Property

I am presenting some new research at the Chicago Kent Roundtable on Empirical Methods in Intellectual Property tomorrow morning.

I will present some initial data from my work in progress, IP Litigation Trends in United States District Courts: 1994—2014, which undertakes a broad-based empirical review of Intellectual Property (IP) litigation in United States federal district courts from 1994 to 2014. Unlike the prior literature, this study analyzes federal copyright, patent and trademark litigation trends as a unified whole. It undertakes a systematic analysis of more than 180,000 individual case filings and examines the subject matter, geographical and temporal variation within federal IP litigation over the last two decades.

Here is an example of the kind of thing I will be talking about:

District Rank in terms of Patent versus Copyright and Trademark Combined (2004-2014)

Fig4 (Patent vs copyright&trademark)

The figure highlights the difference between patent litigation rankings and the composite copyright/trademark ranking of each federal district and thus provides a measure of forum shopping in patent litigation.

 

 Kienitz v. Sconnie Nation — transformative uses and derivative works. #Fairuse

Some additional thoughts on the 7th Circuit’s decision in Kienitz v. Sconnie Nation LLC, No. 13-3004 (7th Cir. Sept. 15, 2014).

Judge Easterbrook expressed some skepticism today over the Second Circuit’s decision in Cariou v. Prince, 714 F. 3d 694 (2d Cir. 2013) because …

asking exclusively whether something is “transformative” not only replaces the list in §107 but also could override 17 U.S.C. §106(2), which protects derivative works. To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under §106(2).

Easterbrook complains that

Cariou and its predecessors in the Second Circuit do not explain how every “transformative use” can be “fair use” without extinguishing the author’s rights under §106(2).”

Ok, so let me explain.

First, Cariou and its predecessors don’t say that every transformative use is fair use. Second, more importantly, transformative use and derivative work are both important terms of art in copyright law. They are not the same thing. Nobody thinks they are.

Section 106(2) of the Copyright Act gives copyright owners an exclusive right to prepare derivative works based on the copyright owner’s original work. As defined in the statute, a derivative work takes a preexisting work and “recasts, transforms, or adapts” that work. The kind of transformations referred to here are not necessarily ‘transformative’ as that term was intended by the Supreme Court in the context of fair use. And yes, obviously, using a word that is not a stem of ‘transform’ would have helped. 

A transformative work, in the fair use sense, is one which imbues the original “with a further purpose or different character, altering the first with new expression, meaning, or message.” [Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (internal citations omitted).] Thus, the assessment of transformativeness is not merely a question of the degree of difference between two works; rather it requires a judgment of the motivation and meaning of those differences.

The difference between a non-infringing transformative use and an infringing derivative work can be illustrated as follows: if Pride and Prejudice were still subject to copyright protection, the novel Pride and Prejudice and Zombies, which combines Austen’s original work with scenes involving zombies, cannibalism, and ninjas, would be considered a transformative parody of the original, and thus fair use rather than infringement. In contrast, a more traditional sequel would merely be an infringing derivative work.

The term transformative use has been applied to cases of literal transformation where it overlaps with the kinds of manipulations that might also create a derivative work. Thus in Suntrust Bank v. Houghton Mifflin Co, substantial copying of a novel in the service of criticism was regarded as transformative.

The term transformative use has been applied to cases of copying without modification, but for a good reason. For example in  Savage v. Council on American-Islamic Relations, Inc., the Islamic organization copied and distributed anti-Islamic statements made by Michael Savage as part of a fund-raising exercise. Recontextualization without modification from one expressive context to another was seen as transformative Bill Graham Archives v. Dorling Kindersley Ltd.

In addition to these cases, courts have also found a number of non-expressive uses to be transformative. In particular, several cases have held that automated processing and display of copyrighted photos as part of a visual search engine is a transformative and thus a fair use. In A.V. v. iParadigms, LLC, the Fourth Circuit found that the automated processing of the plaintiff students’ work in defendant’s plagiarism detection software was fair use). More recently, Authors Guild v. HathiTrust (SDNY), Authors Guild v. HathiTrust (2d Cir) and Authors Guild v. Google (SDNY) held that library digitization to create a search engine was transformative use and fair use.

Maybe we would be better off with different words for all these situations. David Nimmer suggests that in the hands of some judges, transformative use has no content at all and that it is simply synonymous with a finding of fair use. According to Pamela Samuelson, a better approach would be to distinguish transformative critiques, such as parodies, from productive uses for critical commentary. Samuelson also suggests that courts should not label orthogonal uses—uses wholly unrelated to the use made or envisaged by the original author—as transformative uses. But she does think that these are good candidates for fair use.

My personal preference would be for the term transformative use to be confined to expressive uses of copyrighted works and that non-expressive use (as exemplified by search engines, plagiarism detection software, text mining, etc) should be recognized as a distinct category of preferred use. Nonetheless, transformative use is the term of art most courts use and we should probably learn to live with it.

Further Reading

  • David Nimmer, Nimmer on Copyright § 13.05[A][1]
  • Matthew Sag, Copyright and Copy-Reliant Technology, 103 Nw. U. L. Rev. 1607 (2009)
  • Pamela Samuelson, Unbundling Fair Uses, 77 Fordham L. Rev. 2537 (2009).