Fair use and (non-)compliance with other statutory exceptions (Authors Guild v. Hathitrust)

Introduction and Necessary Disclaimer 

This the last of a series of posts commenting on the Authors Guild Appeal Brief (February 25, 2013) in Authors Guild v. Hathitrust. The views expressed on this site are purely my own.

Has the Authors Guild Discovered a new fair use factor? 

The plaintiffs in Authors Guild v. HathiTrust had a lot to say about Section 108 of the Copyright in when this case was in the district court. Section 108 gives libraries the right to make a limited number of copies of certain works for specified purposes.  Section 108(f)(4)) explicitly states that “[n]othing in this section. . . in any way affects the right of fair use as provided by section 107”, nonetheless the plaintiffs argued that any fair-use defense was in fact precluded by Section 108. Intriguingly, the plaintiffs also argued that Section 121 of the Act which expressly authorized the reproduction of books for the blind was also preempted by section 108’s general provisions on library photocopying. Not surprisingly, the district court held that “the clear language that Section 108 provides rights to libraries in addition to fair-use rights that might be available.”

In their Appeal Brief to the Second Circuit the plaintiffs have focused on a different line of argument, they now contend that the district court erred in failing to consider the express limitations of section 108 in its evaluation of fair use. In other words, because “library copying – is specifically addressed by another statute, Section 108, which therefore should guide the fair use analysis” (Authors Guild Ap. Br. Page 30).

Cute. So every time Congress creates a public interest exception to copyright, that exception becomes a limitation on the balancing function of the fair use doctrine and thus, in effect, an expansion of the rights of copyright owners. I don’t buy it and I am pretty sure the court of appeals won’t either.

The argument can also be flipped the other way. Jonathan Band argues in a recent paper that

Courts should consider a defendant’s substantial compliance with a specific exception in Title 17 when applying the fair use privilege. As the court assesses the first fair use factor, the purpose and character of the use, the court should give great weight to the defendant’s substantial compliance with the exception. The court should recognize that Congress determined that uses of similar purpose and character did not constitute infringement.

See, Jonathan Band, The Impact of Substantial Compliance with Copyright Exceptions on Fair Use.