Last Updated on April 5, 2021, 1:01 pm ET
As the Copyright Office considers reform of Section 108, the provision of the Copyright Act that provides for specific limitations and exceptions for libraries, one of the critical considerations is whether the revisions that the library and archive community can gain is worth the risk of what might be lost. I noted in my previous blog post that stakeholders like the Association of American Publishers (AAP) and Authors Guild have made it abundantly clear that they would like to strip Section 108 of its fair use savings clause, using the first two examples of their statements that came to mind. A deeper search into the statements of rightholders—primarily in court briefs (party and amici filings), but also in statements before Congress and in the press—confirms this position.
Before getting into the statements of rightholders regarding the relationship between Section 108 and fair use, a reminder of what Section 108(f)(4)’s saving clause says:
(f) Nothing in this section—
(4) in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections
This provision seems pretty unambiguous, stating that “nothing” in Section 108 “in any way affects the right of fair use.” And yet, in litigation, several rightholders have suggested that this clear language doesn’t actually mean what it says it means; instead, they have argued, specific limitations and exceptions do alter the fair use calculus and allowing reliance on fair use threatens specific exceptions. As evidenced by the statements below (which should not be considered a comprehensive list), there is a clear hostility to Section 108’s reference to fair use. As a result, there is a credible and serious risk that lobbyists for these groups would expend tremendous effort to remove the fair use savings clause from Section 108.
Authors Guild v. HathiTrust
Authors Guild’s Memorandum of Law in Support of Plaintiff’s Motion for Partial Summary Judgment on the Pleadings (District Court for the Southern District of New York)
… reading Section 108(f)(4) to allow Defendants to reproduce and distribute copyrighted works in a manner that is specifically promulgated by and beyond the express limits of Section 108 is “outside the plausible readings of the provision.”
Authors Guild’s Motion for Summary Judgment (District Court for the Southern District of New York)
Plaintiffs stand by their position that the conduct to which Defendants admitted in their Answer is more than sufficient to establish that they have exceeded the limitations of Section 108, and that Defendants cannot rely on the “savings clause” in Section 108(0(4) to justify as fair use a project that exceeds practically every limitation in the library exemption. The discovery process only served to adduce additional facts demonstrating just how callous Defendants have been in their disregard for the requirements of that section.
Authors Guild Brief to the Second Circuit on Appeal From the District Court For the Southern District of New York
[T]o read the savings clause as permitting ‘post-108’ reliance on fair use as if no § 108 copying had occurred is to come dangerously close to reading § 108 out of the statute. Given that Congress deemed Section 108 “necessary to exempt much library photocopying from copyright liability, and since Congress did not likely intend to construct complex mechanisms in most of the section only to render them moot via subsection (f)(4), that result is implausible.
Motion Pictures Association of America (MPAA) Amicus Brief (Second Circuit)
Exceptions to copyright, including Section 107, must be viewed narrowly as compared to the exclusive rights. As the Supreme Court stated, where the Copyright Act “sets forth exceptions to a general rule, we generally construe the exceptions ‘narrowly in order to preserve the primary operation of the provision.’” Tasini v. N.Y. Times Co., 206 F.3d 161, 168 (2d Cir. 2000) (quoting Commissioner v. Clark, 489 U.S. 726, 739, 109 S.Ct. 1455, 103 L.Ed.2d 753 (1989)). In its analysis of whether the uses at issue were fair, the district court instead ignored Section 108 and analyzed fair use broadly and the exclusive rights narrowly, disrupting Congress’s carefully crafted balance in Title 17.[…]
In other words, by enacting Section 108, Congress intended to provide libraries with more liberal, as well as more certain, exceptions than would qualify under fair use. It did not view fair use as an expansion of Section 108 rights, swallowing the Section 108 exceptions, but instead viewed Section 108 as providing more generous uses than might otherwise be allowed under Section 107.
When Section 107 is viewed in the context of Section 108, it becomes inconceivable that Congress would have intended for Section 107 to allow mass digitization of copyrighted works without appropriate restrictions to balance all interests, particularly since it did not do so even in Section 108.[…]
Yet, the district court below did not consider Section 108, concluding that it was irrelevant to its determination of fair use. See Order at 22 n.32 (“I need not decide if the MDP fits within the parameters of 17 U.S.C. § 108 because it unquestionably fits within the definition of fair use.”). In so ruling, the district court lost the benefit of the decades of discussion and careful consideration of stakeholder interests that Section 108 reflects, and that remains ongoing.
Second, the district court misapplied the fair use test and overlooked key facts that weigh heavily against a finding of fair use in this case. In particular, the district court employed a broad interpretation of fair use that effectively reads out of the Copyright Act specific limitations and exceptions that Congress carefully crafted to grant permission for specific uses of copyrighted works by specific groups of users. Indeed, the court all but ignored two provisions that speak directly to the types of uses at issue here – Section 108 (which deals with reproduction by libraries and archives) and Section 121 (which deals with reproduction for blind or other people with disabilities) – and which authorize a far narrower scope of copying than the district court found to be permissible. By concluding that the limits set forth in these specific provisions were irrelevant to its determination of fair use, the district court effectively rendered these provisions mere surplusage. Because the Copyright Act contains numerous such limitations and exceptions dealing with uses of copyrighted works in a host of other contexts, the district court’s broad interpretation of fair use, if followed by other courts, threatens to render superfluous these many carefully-crafted limitations and exceptions, thereby upsetting the careful balance of interests that Congress sought to achieve in the statute.[…]
The district court’s decision to ignore Section 108 in its fair use analysis – and then to adopt an interpretation of fair use well beyond what is authorized by Section 108– effectively rendered the provision surplusage. Doing so violates the cardinal rule . . . that significance and effect shall, if possible, be accorded to every word. . . . [A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” Tasini v. N.Y. Times Co., 206 F.3d 161, 167 (2d Cir. 2000) (quotation marks omitted); aff’d, 533 U.S. 483 (2001). As the Copyright Office has observed, it is simply “implausible” that Congress intended fair use, when applied to copying by libraries, to excuse activity so far beyond the scope of Section 108 as to render irrelevant all of the distinctions made in Section 108’s carefully crafted provisions. See 1983 Register’s Report on Library Copying, at 97-98.
Association of American Publishers (AAP) Amicus Brief (Second Circuit)
The district court held that Appellees’ mass-scale use of Appellants’ copyrighted works was fair, despite the fact that their activities fall directly within the subject matter of the Section 108 exceptions, yet grossly exceed the uses permitted in Section 108. Where libraries engage in activities that are specifically legislated in Section 108, the courts should look there for guidance. As a general rule of statutory interpretation, where there is overlap between a general exception and a specific exception, the court should apply the more specific law. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 385 (1992). Congress would not have enacted specific exceptions for libraries and archives in Section 108, with carefully tailored conditions on any copying, and yet intended Section 107 to permit the same activities but without any such conditions or limits. Applying Section 107 as the district court did in this case allows Section 107 to swallow Section 108 entirely, rendering Congress’ careful construct of the latter superfluous.
Authors Guild v. Google
Authors Guild’s Petition for Writ of Certiorari
Finally, Google cannot evade the fact that the decision below eviscerates Section 108, which carefully limits the conditions under which libraries may digitize their books. Google’s only response is to cite Section 108’s savings clause regarding fair use.. But if libraries can obtain unauthorized, full digital copies of their entire collections without regard to Section 108, which explicitly limits library copying, that entire section of the Act becomes meaningless surplussage.
(AAP) Statement Submitted for the Hearing Record, House Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet, Hearing on “Preservation and Reuse of Copyrighted Works (April 2, 2014)
Should Congress decide to embark on updating Section108 to provide a balanced set of modern exceptions for these cultural institutions (including museums), AAP urges Congress to keep the following general principles in mind:[…]
- Fair use is not a substitute for a specific limitation or exception where the unauthorized use at issue is predictable, systematic, and/or large scale. To the extent that Congress determines that such an unauthorized use serves a public purpose worthy of a copyright limitation or exception, the scope of the statutorily-authorized activity should be clearly described and the institutions that would be eligible to engage in that activity should be clearly identified.
- In any revision of Section 108, the relationship between fair use and the specific limitations or exceptions should be more clearly defined. If a particular activity (like copying for preservation purposes or making copies for users) is addressed in a revised Section 108, the safeguards and balances built into the statutory language should not simply be disregarded in favor of applying a fair use analysis. The Congressional intent reflected in the scope of a specific Section 108 limitation or exception should, at a minimum, inform any fair use analysis, and Congress’ intention that it do so should be made explicit in the language of the limitation or exception itself.
Statement of Allan Adler, General Counsel and Vice President of Legal and Government Affairs at AAP in Communications Daily
Congress should “clarify ‘the relationship between the specifics of the Section 108 exemption and more general limitations and exceptions like fair use . . . It makes little sense for Congress to attempt to craft specific limitations and exceptions that take into account the nature of particular users or particular kinds of works if instead people are simply going to look to fair use in order to support such activities.”