a.r.s. lurkers eat squashed dead puppies

I posted this message previously, but it didn't get the attention I think it deserves. In the spirit of tabloid journalism, I thought that an attention grabbing headline would help.

I've been following the debate about the scope of fair use of copyrighted materials on this newsgroup, and I decided to do some research on the issue based upon what had been said. Here's something I found that might be of interest in the debate. I apologize if this information has been discussed or posted before.

The so-called "fair use" doctrine is embodied in the 1976 Copyright Act, in 17 United States Code sec. 107, which provides:

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work,including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. ***The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. ***

The asterisks that I have added mark the material which was added to this section in 1992. See P.L.102-492, 106 Stat. 3145.

The legislative history of the 1992 amendment includes a single report, House Report No. 102-836 (Judiciary Committee), which can be found in the U.S. Code Congressional and Administrative News. The report analyzes in detail the history of the doctrine of fair use of copyrighted materials, detailing a controversy which arose after the adoption of the 1976 Act (and may perhaps have been in issue previously). That is, does the doctrine of fair use apply to unpublished materials.

A note or two about fair use before going further. The House Report explains that under sec. 107, there are seven enumerated "types" of fair use, but they are not exclusive. Thus, "criticism, comment, news, reporting, teaching, scholarship and research are explicitly mentioned, but because the category is non-exclusive, there can be other types of fair use, such as "parody," which has been judicially recognized. (See House Report, p. 3, footnote 6.). So, the type of "use" must be considered, along with the four factors enumerated. The four factors are also non-exclusive, as courts can consider other relevant factors in determining what constitutes "fair use."

The original version of sec. 107 in the 1976 Copyright Act (the non-asterisked material above) did not directly address the issue of whether unpublished material could be subject to fair use. As the House Report relates, the judicial opinions which followed the adoption of the 1976 Copyright Act differed on the application of sec. 107 as it pertained to unpublished materials. The cases are discussed in detail.

First is the United States Supreme Court opinion in Harper & Row v. Nation Enterprises, where the Court determined that the commercial publication of major exercpts of the as yet unpublished biography of ex-president Gerald Ford was not fair use. There were statements in the opinion that suggested that the scope of fair use as applied to unpublished materials was narrower than as applied to published materials, but the opinion raised more questions on this point than it answered.

The crux of the issued was this: The second "fair use" factor enumerated in section 107 is "the nature of the copyrighted work." It was argued that if the "nature of the copyrighted work" was that it was unpublished, that this factor alone outweighed all others factors, dictating a conclusion that any claim of fair use must be rejected. The counter-argument was that the nature of the work as unpublished was just one of four factors to be considered, even if it weighed more heavily than the others, and that there could be fair use of unpublished materials, even though it might be hard to establish fair use as to such materials.

As related in the House Report, there then ensued a series of three opinions in the United States Court of Appeals for the Second Circuit. In the first case, Salinger v. Random House, Inc., the court rejected a claim of fair use of unpublished letters of J.D. Salinger by his unauthorized biographer. The opinion suggested that there could neer be fair use of unpublished materials, based on the "nature of the work" analysis.

In the second case, the Court of Appeals for the Second Circuit upheld Judge Pierre Leval in rejecting a claim by the Church of Scientology of copyright infringement, in the use of unpublished letters and diaries of L.Ron Hubbard by a biographer. Note that the Second Circuit upheld Judge Leval's decision on grounds other than fair use, even though fair use was asserted. Even though the case wasn't decided on the issue of fair use, however, there were many statements in the opinion that suggested that the fair use claim in that case would have been rejected had it been decided on that issue, because the materials were unpublished, and a claim of fair use is *maybe almost never* sustainable in the case of unpublished materials.

In the third case, the Court of Appeals for the Second Circuit upheld the court below in rejecting a claim by the estate of author Richard Wright to copyright infringement in unpublished materials, based upon a claim of fair use by his biographer. This is Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991).

At this point, note that it is the same court, i.e., the United States Court of Appeals for the Second Circuit, but while there are maybe 12 judges on this court, they hear cases in panels of three. So in any particular case, you could have entirely different judges hearing and deciding, even though it's the same court. So the same court disagrees with itself. That's the system.

Also note the following. I've seen statements on this discussion group to the effect that no court has ever sustained a claim of fair use to unpublished materials. That doesn't appear to be the case. The Second Circuit *did* uphold a claim of fair use to unpublished materials in Wright v. Warner Books, Inc., cited above.

In the midst of all of this confusion the United States Congress decided to amend the law, and that is how the House Report which details all of these cases came about.

The House Report makes the following statement about the intent and purpose of the amendment:

"H.R.4412 amends section 107 of title 17, United States Code, by adding the following new sentence at the end of that section: 'The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.' This sentence has a narrow, but important purpose: to reiterate Congress's intention in codifying fair use that in evaluating a claim of fair use, including claims involving unpublished works, the courts are to examine all four statutory factors set forth in section 107, as well as any other factors deemed relevant in the court's discretion."

There are a lot of interesting other nuggets in this report, which is too long for me to reproduce in its entirety. But I think it is clear from the report, and the amendment that was adopted pursuant to the report, that the idea that there can *never* be fair use of unpublished materials, is not a correct statement of the law.

Also, the reading I have done suggests an interesting interplay between the Copyright Act and state trade secrets law, as respects the issue of federal preemption. If I get a chance to run it down, I will post in the future. Interesting stuff for all those law nerds out there.