We recently wrote about a case in which the MPAA signed onto an amicus brief arguing in favor of fair use
, noting that it wasn't something you saw everyday (even if the MPAA just signed onto a brief written by some Stanford fair use experts, rather than writing its own brief). We saw lots of folks in the copyright world express surprise at the MPAA speaking out in favor of fair use, given the their general distaste for fair use. Because this is the MPAA we're talking about, it couldn't leave well enough alone, and decided to respond, with a silly blog post pretending that the MPAA has long been a champion of fair use, and that there's nothing out of the ordinary in it defending fair use. The blog post, written by lawyer Ben Sheffner is hilariously entitled MPAA and Fair Use: A Quick History
. And, boy, it is quick. So quick it leaves out
quite a bit of the MPAA's "history" on fair use, and presents a rather inaccurate, misleading and one-sided portrayal of the MPAA's decades-long war against fair use. And, contrary to Sheffner's claims, the MPAA has not just argued that "piracy" is not fair use, but plenty of other things that most of us -- and the courts -- have, thankfully, determined were absolutely fair use.
So, in the interest of accuracy (which we're sure the MPAA really intended as well), we thought we'd perhaps supplement the MPAA's history with some of the stuff Sheffner apparently "missed" in his all-too-quick "history" lesson. In researching this, I reached out to more than half a dozen copyright lawyers. Amazingly, each one sent back different examples of the MPAA fighting hard against fair use (there was plenty of overlap, but each one had a bunch of examples that no one else had) suggesting just how widespread the MPAA's fight against fair use tends to run. Frankly, the list got so long that I'm only providing the highlights
here. A complete recapping of the MPAA's war on fair use would simply take way too long.
Basically, the short summary of the MPAA's position might be summarized as "when people sue us, we believe strongly in fair use. Otherwise... not so much."
Or, even shorter: fair use for me, but not for thee
. Sheffner lists out five cases, all of which involved an MPAA member as a defendant. While he claims that it's not at all unusual for the MPAA to argue fair use, and that there's nothing surprising about its amicus filing, it is a rare case where the MPAA files an amicus
brief in support
of fair use. Normally, its amicus briefs related to fair use go very much in the other direction. Or, it's the aggressor and the plaintiff arguing against fair use.
Let's start with the big one: Sony vs. Universal Studios, better known as the Betamax case, in which the movie studios tried to kill the VCR. The case was brought by a bunch of MPAA members, who argued that time shifting
was copyright infringement and the VCR should be illegal for facilitating time shifting. The MPAA also filed an amicus brief
in that case, in which it states:
The Motion Picture Association has never acquiesced in the view that home
videocopying is a fair use. An argument to the contrary in one of the amicus briefs is
Note that even the choice of language is incredible, suggesting that the MPAA itself must approve something as fair use before it is. It later argues that there can be no fair use in time shifting because nothing creative has happened:
The home videocopyist makes no independent or creative effort; he contributes
nothing to advance science or culture. He merely chisels -- by making a copy for
nothing. That is not fair use.
I guess that this is the "anti-piracy" situation the MPAA meant in its blog post last week, huh? By the way, as a point of reference, four years after the MPAA's Jack Valenti declared the VCR "the Boston Strangler" to the movie industry, the MPAA studios made more income from VCR movies than they did from the box office. How the MPAA still has any credibility on these sorts of things is beyond me.
Speaking of the MPAA's Jack Valenti, back in 2003, he gave an interview to a publication at Harvard where he, quite incredibly, insisted that fair use did not exist in copyright law
What is fair use? Fair use is not a law. There's nothing in law.
Yes, Jack Valenti apparently was denying the existence of 17 USC 107
. Because the MPAA is such a regular "defender" of fair use, right?
Moving on. In 2006, the MPAA argued against fair use
in an amicus brief filed in Perfect 10's case against Google for showing thumbnail images in its image search product. Yes, the MPAA didn't want an image search engine to be able to show images. Great guys, those MPAA lawyers. First, it argued that even if you don't host the content
, but merely embed/link to an original, you should be held liable. Second, it argued that Google could violate the "distribution" right, even if no works were actually disseminated
. And then, finally, they argued that showing thumbnails for the purpose of search was not transformative
From that brief:
No matter how socially beneficial Google's search engine may be in general, the activity at issue in this case -- making unauthorized copies solely to direct users to other unauthorized copies -- hardly deserves the label "transformative."
That's the good old MPAA we know. Even if it's socially beneficial
, it must be against the law because it might hurt our business model. Elsewhere, it attacked the rest of the four factor analysis, even arguing, ridiculously, that thumbnail images hurt "the market" for the original images.
Okay, how about the lawsuit against DVR pioneer ReplayTV? There, the various studios who make up the MPAA sued about another VCR-like technology and sought to chip away at fair use, yet again, arguing that a DVR is entirely different from a VCR, and fair use shouldn't apply.
Copying a copyrighted program or film with a digital video
recorder is a violation of the exclusive rights of the copyright owner under
Section 106 of the Copyright Act. Such copying is entirely distinguishable from
the type of copying which, in narrow and different circumstances, might be
defended as a fair use.
Yup. DVR: not fair use, according to "long term defenders of fair use," the MPAA. Throw out your Tivos.
Next up on the list: backing up your DVDs. When RealNetworks released RealDVD, a complex and convoluted system to let people back up their DVDs, while still keeping
DRM included, the MPAA studios still sued
and argued that Real's reliance on fair use
Real cannot rely on the alleged "fair use" defense that consumers can make copies of DVDs to avoid liability for trafficking in a circumvention product.... As the Second Circuit held, the plain language of the "DMCA targets the circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools), but does not concern itself with the use of those materials after circumvention has occurred.".... the "DMCA does not have a 'fair use' exception."
Not done yet. How about the famous Hathitrust
case involving a bunch of university libraries, scanning their collections to build a giant index for the sake of academic research. Most people would think this is an obvious case of fair use. But not the MPAA.
From its amicus brief, we learn that this all just a vast piracy conspiracy, so fair use cannot apply.
The district court’s very brief discussion of the third
factor simply observes that because the defendant’s purpose was making and
distributing copies of whole works, copying of entire works was necessary. Defendants who copy whole works will almost always be able to argue that doing
so was necessary to their purpose. Surely in a case involving the most massive,
systematic copying of copyrighted works in history, the district court should have
addressed whether the amount and substantiality of the copying was really
Next up? What about individual books? That close cousin of movies? Well, fair use may be important in movies, according to the MPAA, but don't expect it to stand up for fair use in books. In fact, it will come out vehemently against fair use in books. For example, it filed an amicus brief
in the Salinger v. Colting case, in which JD Salinger claimed that Fredrik Colting had violated his copyright by writing an unauthorized sequel to The Catcher in the Rye
. For many of us, this was an open and shut fair use case. Colting had not copied the expression of Salinger at all, but rather just the idea. But, to hear the MPAA tell it, fair use has no purpose in such story telling. In effect, they argue that all fan fiction must be infringing
In evaluating the fair-use defense, the Court should reject attempts to
overly expand, or give disproportionate weight to, the fair-use factor one concept
of “transformative” use. Contrary to the assertions of defendants and their amici,
a defendant does not meet his burden to show that an unauthorized sequel is a fair
use merely by showing that it has crossed a threshold of “‘add[ing] something new,
with a further purpose or different character, altering the first with new expression,
meaning, or message,’”
Again: fair use for me, and not for thee.
It's not just in the courts that it's fighting these things either. There were a couple of court cases involving services that edited movies (generally taking out the more "R" rated stuff to make them kid friendly), and the MPAA, again argued strongly that these weren't fair use. When Congress finally jumped in and passed a law that made such family-friendly editing legal, the MPAA's Jack Valenti argued to Congress
that this sort of interpretation of fair use "could jeopardize the future of copyright law and the financial well-being of one of America's most valued industries." Apparently fair use was going to destroy all of copyright law and the financial well-being of Valenti's own industry. That hasn't actually happened (you'll note that's a frequent result when it comes to MPAA predictions).
Other areas attacked by the MPAA? How about during the triennial DMCA review for the anti-circumvention clauses? One of the exemption requests last time around was to make it clear that it was legal to make backup digital copies of your DVDs. The MPAA actually argued that such an obvious fair use should not be considered fair use, because it messed with
their business model.
How about over in the UK, where a few years back, there was the Hargreaves review -- a comprehensive look at potential copyright reform. A big part of that was looking at whether or not the UK should add American style fair use to their laws. In a filing for that, the MPAA argued against adding American-style fair use
, saying that it would lead to too much litigation. It also mocked the idea that companies like Google rely on fair use. Finally, it pulls out one of the maximalists' favorite bullshit lines of the day: that fair use might actually be incompatible with the Berne Convention
The compatibility of the fair use doctrine with the three-step test has recently been the
subject of a good deal of scholarly commentary and controversy; but no definitive determination
on that subject has ever been made. At the time the U.S. first became subject to the three-step
test, when it adhered to the Berne Convention in 1989, there seemed to be no serious
consideration of whether Section 107 was incompatible with Article 9 (2) of Berne. Since the mid-1990s, the WTO dispute settlement process has provided a potential forum for claims that
fair use is to broad or too ill-defined an exception to satisfy the three-step test. But no such
claims have ever been brought, even though there are doubtless a number of WTO members
whose nationals could claim to have been injured through fair use decisions by U.S. courts that
unauthorized uses of their works were “fair” and therefore sheltered by Section 107. It is worth
noting that the one provision of U.S. copyright law that has been found to exceed the bounds of
the three-step test, by decision of a WTO dispute settlement panel, is not Section 107, but rather
Section 110 (5), a specific exception involving the public performance of music in bars and
Of course, this argument was ably debunked
by William Patry years ago, and yet the MPAA sticks to the FUD position of hinting that any other country that introduces fair use, might be violating Berne.
Of course, down in Australia, the MPAA filed a similar document
late last year, concerning that country's exploration of implementing fair use. From the MPAA's filing:
Since it is inconceivable that, as part of any new system of copyright exceptions in Australia, its courts would be directed to slavishly follow U.S. precedent, it is inescapable that there would be considerable uncertainty about the resolution of claims based on the new system in Australian courts. This is likely to create a deleterious level of unpredictability for copyright owners, copyright users, and the public. Whatever social benefits might fairly be attributed to the fair use doctrine under U.S. law would be unlikely to survive the passage across the Pacific to Australia.
Related to this, we've heard from multiple sources that when the USTR actually decided to put a recognition of the right for countries to include the rights of the public like fair use in the TPP, the most vigorous protests came from... the MPAA, supposed defenders of fair use. Of course, since the USTR keeps all of that stuff secret, we'll have to note that
claim is just well-sourced speculation.
In the end, there are many more situations in which the MPAA has found itself arguing against
fair use. The idea that they're champions of fair use is not actually supported by history. Yes, there are a few odd cases where they will defend fair use -- when their own studios have been sued. But it's difficult to find examples of the MPAA supporting fair use for anyone else. Instead, they certainly seem to like attacking fair use at every opportunity if it might help anyone else.