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Working Fair Use

Are there tensions in recent fair use cases regarding methods? Fair use analysis has traditionally and conventionally posed a set of very “work-specific,” nuanced questions. For at least 15 years or so, since the rise of the original Napster technology (and really, at least since “librarying” was at issue in the original Betamax litigation), social practices and information technologies have raised the question of large-scale alleged fair uses. Yet copyright law sticks somewhat stubbornly to the “work-specific” legal framework. Are cracks appearing in that facade? Have recent cases opened that conversation in earnest?

Note the following short excerpts in connection with how they bear on the following: In what way/ways may copyright decisionmakers (courts, service providers) “batch” instances of alleged copyright infringement for purposes of engaging in fair use analysis? If/when “batch” processing is acceptable, what standard/standards must be used? I suspect that there is much to be learned on that front.

Lenz v. Universal Music (9th Cir. Sept. 15, 2015) suggests that some sorts of automated fair use analysis is legally acceptable:

“We note, without passing judgment, that the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use. Cf. Hotfile, 2013 WL 6336286, at *47 (“The Court . . . is unaware of any decision to date that actually addressed the need for human review, and the statute does not specify how belief of infringement may be formed or what knowledge may be chargeable to the notifying entity.”). For example, consideration of fair use may be sufficient if copyright holders utilize computer programs that automatically identify for takedown notifications content where: “(1) the video track matches the video track of a copyrighted work submitted by a content owner; (2) the audio track matches the audio track of that same copyrighted work; and (3) nearly the entirety . . . is comprised of a single copyrighted work.’ Brief for The Org. for Transformative Works, Public Knowledge & Int’l Documentary Ass’n as Amici Curiae Supporting Appellee at 29-30 n.8 (citing the Electronic Frontier Foundation website (link unavailable)). Copyright holders could then employ individuals like Johnson to review the minimal remaining content a computer program does not cull. See Brief for The Recording Indus. Ass’n of Am. as Amici Curiae Supporting Appellants at 15 (“[T]he RIAA has an entire department dedicated to identifying infringement and issuing takedown requests.”); see also Hotfile, 2013 WL 6336286, at *14. During oral argument Universal explained that service providers now use screening algorithms. However, we need not definitively decide the issue here because Universal did not proffer any evidence that at the time it sent the takedown notification to Lenz it used a computer program to identify potentially infringing content.”

Katz v. Google, Inc. (11th Cir. Sept. 17, 2015) hews to the “work by work” framework as a matter of law, but is willing to accept judicial shortcuts:

“Katz argues the district court erred by failing to perform a “work-by-work” analysis of the blog posts, see Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1259 (11th Cir. 2014), and instead analyzed only the blog posts containing altered versions of the Photo. This argument lacks merit. In the R&R adopted by the district court, the magistrate judge outlined all 25 allegedly infringing blog posts, and noted that its finding of fair use applied to each post. Therefore, the district court did, in fact, perform the required “work-by-work” analysis. The district court was not required to write a prolix, unwieldy opinion with 25 separate sections devoted to each alleged instance of infringement.”

And from Cambridge University Press:

“Plaintiffs contend that the District Court erred by performing a work-by-work analysis that focused on whether the use of each individual work was fair use rather than on the broader context of ongoing practices at GSU. We disagree. Fair use must be determined on a case-by-case basis, by applying the four factors to each work at issue. See Campbell, 510 U.S. at 577, 114 S.Ct. at 1170. Were we to accept Plaintiffs’ argument, the District Court would have no principled method of determining whether a nebulous cloud of infringements purportedly caused by GSU’s “ongoing practices” should be excused by the defense of fair use. Thus, we find that the District Court’s work-by-work approach — in which the District Court considered whether the fair use defense excused a representative sample of instances of alleged infringement in order to determine the need for injunctive relief — was the proper one.”