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Does Fair Use Matter?

There’s nothing like a juicy fair use lawsuit to get copyright lawyers all wound up.

Yesterday, the New York Times published this Joe Nocera column revisiting the Harry Potter/RDR Books/HP Lexicon lawsuit, fanning the embers of a debate that burned through the blogosphere last Fall and earlier this Spring.  Responding to Nocera, Derek Bambauer at Info/Law critiqued his assumption that copyright law automatically permits creation of “new” art based on existing copyrighted works.  In older posts, Tim Wu at Slate, and then at his own blog, argued that the HP Lexicon doesn’t constitute a derivative work in the first place, obviating a fair use analysis.  William Patry suggested that the Lexicon is fair use, at least under American copyright law.  (The comments to his post raise the intriguing possibility that J.K. Rowling and her publisher have the narrower English “fair dealing” principle in mind.)  C.E. Petit pointed out that this may be a trademark problem masquerading as a copyright case, driven by publishing concerns rather than authorial ones.

All of that would be amusing at best (though challenging and troubling for Rowling, HP fans, and publishers of her works and the Lexicon), were it not for the timeliness of a forum on fair use held last Friday at Columbia Law School.  Rebecca Tushnet was both a speaker and, in her inimitable manner, a reporter.

Here is a portion of her summary of Paul Goldstein’s keynote:

Do we need a general theory of fair use? From most judges’ perspectives, the quest for general theory appears to be a (harmless) academic diversion. How can we expect real people to live in unreal houses? The statutory factors are abstract, unreal, and nonreflective of the circumstances under which authors create, publishers publish, and lawyers advise.

Fair use is pragmatic, but cases tend to cluster on patterns. Each cluster has its own equities and special considerations.

For a ridiculously long version of that argument, with a punch line that takes a shot at linking that pragmatic/descriptive argument to a normative one, take a look at this article.

[Updated: Here is a link to Matt Sag’s summary of Paul Goldstein’s talk.]

For those attracted to the nuances of the fair use factors, here is her summary of a panel that included Joe Liu, Rob Kasunic, and Barton Beebe, with questions from a number of other very thoughtful contributors to fair use law and scholarship.

And here is her summary of a panel on the limits of fair use (or, in my formulation, where and why fair use doesn’t matter), featuring Jessica Litman, Tim Wu, and Randy Picker.

There is one more panel summary to come, “transformative use,” with remarks by Rebecca herself, plus Tony Reese and Laura Heymann.

I wish I could have been there; obviously it was a very lively day.  What do I think of the HP Lexicon case?  I’m somewhere between Wu (it’s not a derivative work) and Patry (the work fits a pattern that has been held to be infringing, in the Seinfeld Aptitude Test case, but should not have been, as in Judge Posner’s opinion in the Beanie Baby case).  But I also agree with Tim Wu that some of the most interesting action here isn’t in fair use at all, but in a variety of emerging institutional and transactional arrangements that bypass fair use analysis altogether.  Creative Commons is an example, but only one.

Update:  Rebecca Tushnet has posted this summary of the “transformative use” panel from Columbia.  She has a separate post summarizing her own contribution to that panel, and one last post featuring “transformativeness Q&A.”