Why The Latest Supreme Court Ruling In Kirtsaeng May Have A Much Bigger Impact On Copyright & Fair Use

from the phrasing-matters dept

Earlier this month, we wrote briefly about the Supreme Court's second Kirtsaeng ruling, which focused on the issue of fee shifting in copyright cases. We didn't spend that much time on it (and hadn't covered the run up to the Supreme Court either). We had basically assumed that the first Kirtsaeng ruling from the Supreme Court, about whether or not the First Sale Doctrine applied to goods outside the US, was the real legacy of the Kirtsaeng fight, rather than a more mundane issue about fee shifting -- especially when the more recent Kirtsaeng ruling was basically just "courts need to look at more than just if the original lawsuit was 'objectively reasonable'" (but fails to give much guidance about what else should be looked at). Yes, we noted, this may ward off some bogus copyright lawsuits, depending on what standards the courts start to coalesce around, but there wasn't much big news in the ruling.

However, copyright expert Jonathan Band spotted something important that many folks missed. Buried within the ruling are some statements about the purpose of copyright that may become quite useful in future cases. Specifically, it looks like the Supreme Court has just blessed the fact that copyright should encourage people to build upon existing works, and appears to be giving a nod to a broad interpretation of fair use that says that building on the works of others is a key part of the purpose copyright itself.
The Court quoted its 1994 decision in Fogerty v. Fantasy that “copyright law ultimately serves the purpose of enriching the general public through access to creative works.” The Court then stated, “the statute achieves that end by striking a balance between two subsidiary aims: encouraging and rewarding authors’ creations while enabling others to build on that work.

The Court’s focus on the subsidiary aim of “enabling others to build on that work” goes beyond its previous pronouncements concerning how to achieve the objective of enriching the public through access to works. In 1984, in Sony v. Universal, the Court recognized that defining the appropriate scope of copyright protection “involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other…” In 1991, in Feist v. Rural Telephone, the Court stated that “copyright assures authors the right to their original expression, but encourages others to build freely on the ideas and information conveyed by a work.”

Thus, in these earlier cases, the Court discussed building on “the ideas and information conveyed by a work.” But in Kirtsaeng, the Court did not limit the reuse to “the ideas and information conveyed by a work;” rather, it more broadly addressed building “on that work.” Presumably the Kirtsaeng Court was referring not only to the ideas and information in the work, but also the expression in the work–to the extent use of the expression served “the purpose of enriching the general through access to creative works.” In other words, the Kirtsaeng Court was referring to fair use and other exceptions and limitations in the Copyright Act.
Band notes that hopefully this will help serve as a reminder to Congress about the important public interest objectives built into copyright. But I think it may start to show up in lots of other fair use lawsuits as well...

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  1. identicon
    cpt kangarooski, 6 Jul 2016 @ 3:47pm

    Re: Re: Anything that can weaken protections for artists

    Artists must get rewarded for creating things people value. I don't know anyone who disagrees.

    I disagree. It's nice to meet you.

    I would say instead that:

    If people value things created by artists;
    If rewarding artists would cause them to create more and/or better things, which results in greater value to people;
    If the increase in value outweighs the cost of the reward to people;
    Should all these things be true, it may be appropriate to offer such a reward to artists, though it is by no means mandatory or imperative.

    I would agree, however, that there is far too little attention being paid to practical solutions, instead of just insisting that history, technology, and social attitudes all go back in time by 50 years or so and stay there.

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