A Can of Copyright - US Supreme Court Rules on Fair Use in Andy Warhol's Work

From the iconic lithographic cans of Campbell's soup to the Marilyn Monroe, Andy Warhol's art is iconic and one that most (if not everyone) recognises. However, with success and notoriety comes potential legal battles, particularly if artists "take inspiration" from works of other artists. In the US the doctrine of fair use is very broad and can encompass several acts, but it's remit in relation to more direct copying as 'inspiration' has been hazy. A recent, and rare foray into the realm of the US Supreme Court was set to make matters clearer, and the awaited decision was indeed handed down earlier this Summer. 

The case of Andy Warhol Foundation for the Visual Arts Inc. v Lynn Goldsmith concerned the aforementioned iconic art of Andy Warhol, namely his lithographs of the music artist Prince. The lithographs used a picture taken by a famous photographer in her own right, Ms Goldsmith, in 1984 for Vanity Fair magazine as an "artist reference". Ms Goldsmith had licenced the picture to Vanity Fair with the strict condition that it only be used once in the magazine. Mr Warhol created 15 lithographs of Prince in total, and later his Foundation licenced one of those works to Conde Nast for a story about Prince. Ms Goldsmith subsequently informed the Foundation that they had infringed her copyright in her picture, which then lead to the Foundation suing Ms Goldmith asserting fair use. The lower courts have reached differing outcomes on the matter, which lead to the case ending up in the Supreme Court for final decision.  

The Foundation did not challenge the conclusion made by the Court of Appeal that the lithograph and the series of works created by Warhol are substantially similar. This left the question of whether Mr Warhol's use of the photograph was 'fair use'. In addition, the only factor within the assessment of fair use remained the first factor, i.e. whether "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes" weighs in Ms Goldsmith's favor or if the work would be considered 'transformative'.

The first factor specifically looks at whether, as has been firmly established in Campbell v Acuff-Rose Music Inc: "an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations like commercialism". This means that even though the expression may be new (as the Foundation argued), it, by itself, is not enough to deal with the first factor. 

Justice Sotomayor, handing down the majority's decision, focussed on the meaning of the first factor at issue. She noted that it "considers the reasons for, and nature of, the copier’s use of an original work", and specifically asks "whether the new work merely ‘supersede[s] the objects’ of the original creation… (‘supplanting’ the original), or instead adds something new, with a further purpose or different character". In other words, does the new work 'substitute' the other work, or is its purpose the same or highly similar to that of the original work. 

The preamble to section 107 of the US Copyright Act does give helpful guidance on what may be included in this factor, which includes, but is not limited to: "criticism, comment, news reporting, teaching… scholarship, or research". The similarly will be a degree of similarity, rather than a clear cut similarly assessment, so the Court will not restrict itself to just these categories. 

If a use has a further purpose or different character it is deemed to be 'transformative', which is, yet again, a matter of degree. However, there is a minimum threshold for transformative use, specifically that the "degree of transformation required to make “transformative” use of an original must go beyond that required to qualify as a derivative". 

To summarize a very lengthy and detailed discussion of the minutiae of the definition of the first factor, Justice Sotomayor summarized it as: "the first fair use factor considers whether the use of a copyrighted work has a further purpose or different character, which is a matter of degree, and the degree of difference must be balanced against the commercial nature of the use. If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying".

Justice Sotomayor then moved on to considering whether the particular 'use' of the protected works would be an 'infringement'. 

Ms Goldsmith's pictures were used in a variety of ways: (i) to create the Vanity Fair illustration and the other Prince Series works; (ii) Vanity Fair then used the photograph when it published Warhol’s illustration in 1984; and (iii) the Foundation used the photograph when it licensed an image of Warhol’s Orange Prince to Condé Nast in 2016. However, only the latter 2016 use has been argued to be infringing. 

Typically photographs, such as Ms Goldsmith's, are used accompanying articles relating to the given celebrity or subject. As such, the use by Condé Nast and the Foundation in 2016 was substantially the same. The use was also clearly of commercial nature, as the images were licenced from the Foundation, weighing against a finding of fair use. Taken together these factors weigh against fair use absent some other justification for copying, i.e. any transformative nature of Mr Warhol's work.

Justice Sotomayor then moved on to considering whether Mr Warhol's work was transformative. As described in the Campbell decision, as mentioned above, transformative use is one that "alter[s] the first [work] with new expression, meaning, or message". Agreeing with the Court of Appeals, Justice Sotomayor noted that "any secondary work that adds a new aesthetic or new expression to its source material is necessarily transformative", however, the courts should not attempt to evaluate the artistic significance of a particular work. 

The key, in the Court's view, is what the purpose of the new, potentially transformative work, really is and if the use is distinct from the original. In this case, the licensing of the lithographic image by Condé Nast is similar to the use of the original work, namely as illustrating a magazine about Prince (although acknowledging difference between them). 

Justice Sotomayor noted that "[t]o hold otherwise would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same as those of the originals". 

Despite arguments made by the Foundation, the Court rejected their argument that the Warhol lithographic was commentary on the dehumanizing nature and effects of celebrity. According to Justice Sotomayor, the commentary could not stand on its own two feet, and the commercial use of it required compelling reasons to see otherwise.  

Ultimately, the Court held against the Foundation, determining that "Goldsmith’s original photograph of Prince, and AWF’s copying use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is of a commercial nature[, and]  AWF has offered no other persuasive justification for its unauthorized use of the photograph". This means that the first factor would weigh in favor of Ms Goldsmith. 

The scathing dissent by Justice Kagan highlights the contentious nature of this decision, and its potential impact on both copyright holders and artists trying to take inspiration of other works. The decision does limit the scope of artistic inspiration in the world of fair use, and potentially may have a cooling effect on art creation (though this remains to be seen). It does, however, add further weight to the copyrights held by individuals and entities, which they will undoubtedly receive with open arms. As said, the impact of the decision will be interesting to see and whether more derivative, or 'inspired' works will be litigated in the future. 

Not as the Oracle Foretold - US Supreme Court Decides on Copyright Infringement in relation to APIs

APIs, or Application Programming Interfaces, are absolutely everywhere these days. APIs allow for two pieces of software to 'speak' with each other, sharing information across to allow for interactivity and interconnectivity between different software applications. While many providers share their APIs freely for implementation, there is still certain rights that attach to those APIs in the form of copyright over the code itself. Just like text in a book, code can be protected by copyright and, in many instances, is absolutely worth protection if a particular coding language becomes very popular. This has been the central focus of an epic legal battle between Oracle and Google in the US, which has spanned for nearly 10 years (discussed previously on this very blog), and the highly anticipated US Supreme Court decision has finally been handed down in early April 2021. 

The case of Google LLC v Oracle America Inc. concerned the Java SE program, which uses Oracle's Java programming language. Parts of the Java SE program's code (roughly 11,500 lines of code) was used in the development of Google's Android operating system, which formed a part of the Java SE API. Java SE is commonly used to develop programs primarily to be used on desktop and laptop computers, which also extends into the realm of smartphones. Oracle subsequently sued Google for copyright infringement over this copied code, and the matter finally ended with the Supreme Court after a long 10-year journey through the US courts. 

The Supreme Court were tasked at looking at two questions: (i) whether Java SE’s owner could copyright the portion that Google copied; and (ii) whether Google’s copying nonetheless constituted a “fair use” of that material. 

Justice Breyer, handing down the majority's judgment, first started off discussing the basic requirements for copyright protection. This means that the work has to be one of authorship, original and fixed in a tangible medium. Copyright encompasses many types of works, such as literary, musical and architectural works, but in a more unconventional manner it includes 'computer programs', which are "...a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result". In terms of limitations, copyright does not extend to "...any idea procedure, process, system, method of operation, concept, principle, or discovery". In addition to copyright protection in general, one has to consider the remit of 'fair use', which allows for the use of copyright protected works for various purposes, e.g. criticism, satire and news reporting. 

The first question, as set out above, concerned whether the provision extending copyright protection to 'computer programs' includes APIs and/or whether they are excluded as 'processes', 'systems' or 'methods of operation' from copyright protection. However, the Supreme Court skipped the copyright aspect of the matter and immediately dove into whether Google's use of the API was fair use.

Justice Breyer noted that computer programs differ from other 'literary works' in that such programs almost always serve functional purposes, which makes the application of copyright to them more difficult. He also mentioned that, in discussions to extend copyright to computer programs, it should not "...grant anyone more economic power than is necessary to achieve the incentive to create". The key is to not allow copyright to stifle innovation in the realm of computer programs. 

Justice Breyer also mentioned that fair use can be used to distinguish between expressive and functional features of computer code where those features are mixed, and allow for different programs to be more readily distinguished in the light of protection. 

Turning to actually considering whether Google's copying fell into fair use, the Supreme Court had to look at the well-established factors of fair use: (i) the nature of the copyrighted work; (ii) the purpose and character of the use; (iii) the amount and substantiality of the portion used; and (iv) market effects. 

In relation to the first factor, the Supreme Court discussed the use of APIs in general as a way for computer programs to speak to each other. APIs also comprise three different 'functional' aspects, which are various parts of code that handle different aspects of the APIs functionality. Justice Breyer highlighted that the parts are inherently functional and bound together by uncopyrightable ideas (i.e. task division and organization) and new creative expression in the form of Android's implementing code. In their view the nature of APIs diminishes the need for copyright protection over them.

In terms of the second factor, the focus is on the transformative nature of a copyright protected works use. Google sought to make new products using the API and to expand the usefulness of the Android OS - argued to be transformative and innovative around the copying of the API. The Supreme Court also noted that one has to consider both the commerciality and good faith in relation to the copying. Justice Breyer determined that, while Google's use of the API was a commercial endeavor, it doesn't mean that the use cannot be transformative. Good faith was not a consideration in the case, but Justice Breyer did highlight that the other factors on the copying of the API weight towards a finding of fair use. 

The Court then moved onto looking at the amount of the work copied. As discussed above, Google copied approximately 11,500 lines of code, which was a mere fraction of the totality of 2.8 million lines in Java SE. While the amount is important, it's the substance of what was copied that is the most important part when thinking about substantiality. Why the lines were copied was to enable Java experienced programmers to work with Android; without which this would have been very difficult. This objective for the copying was to enable the expansion of Android, not to replace Java SE, and the Court did see that this favored a finding of fair use.

Finally, the Court turned to the market effects of the copying, i.e. did it impact the market value of the protected work. Thinking of the use of the code, it was in a market sector where Sun Microsystems (Oracle's predecessor) was not well-positioned, and the primary market for Java SE was PCs and laptops. Android used in smartphones was in no way a substitute for traditional computers where Java SE was typically used. However, the code's implementation did benefit Android through attracting developers to improve the OS. The Court saw that the copying didn't impact Sun Microsystem's position in the marketplace, and issues with an impact on creativity within the development of programs like Android, weighed for a finding of fair use. 

Rounding things off, Justice Breyer discussed the application of copyright in the world of computers and the difficulties the old concept has in adapting to this new environment. In his view, copyright very much persists in computer programs (and their underlying code), but emphasized the fair use doctrine's place in the same. 

The Supreme Court ultimately concluded that Google's copying was fair use as a matter of law and therefore there was no infringement of Oracle's code.

The case is a massive milestone in the application of copyright in computer programs and code, and as the court observed, Google only took "...what was needed to allow users to put their accrued talents to work in a new and transformative program". This is curious and can open the door for others to copy code as and when needed, without licensing, if it is used to allow for innovation through the implementation of well-established technologies. Justice Thomas did indeed write a very strong dissent to the majority's verdict, which highlights the blurring of copyright in relation to code. It remains to be seen how this precedent is applied by the courts in future cases, but it could very well lead to the limits of fair use in relation to code being tested sooner than you think. 

A Host of Problems - US Court of Appeals Decides on Copyright and Hosting User Uploaded Content

This writer fondly remembers the early days of the Internet when it felt like a totally lawless, open and free space where users could do whatever they wished with whatever they wanted. As the Internet has become more ubiquitous and 'corporate' this had to be reined in, and legislation has slowly caught up to how people use the Internet. One still meddling piece that the legislature and the courts have struggled with is user-uploaded content, where the service provider merely provides the platform for uploading content (infringing or not), and does not actively do it itself. With this in mind, where do you draw the line between freedom and intermediary liability when it comes to user-uploaded content? The US Court of Appeals recently issued an important decision trying to take on this issue.

The case of VHT Inc. v Zillow Group Inc. concerned Zillow, an online marketplace for real estate. VHT is a photography company who take professional pictures of houses and apartments that are then used to illustrate the location for sale to prospective buyers. VHT saves these pictures onto a centralized database, where they are given to clients under a license, which Zillow receives from various real estate related sources. VHT subsequently sued Zillow for copyright infringement for its use of VHT's pictures in its "Listing Platform" and "Digs" pages, exceeding the scope of the licenses issued to VHT's customers.

The first aspect of the case dealt with direct infringement, particularly in the context of Zillow's automated systems. While ownership in the copyright of the works can be easily established, infringement requires direction causation, i.e. volitional conduct. What this means is that "...'direct liability must be premised on conduct that can reasonably be described as the direct cause of the infringement'". What remains key here is who the ultimate selector of the content is; Zillow or the end-user. In order for Zillow to have liability VHT would have to "...show [the alleged infringer] exercised control (other than by general operation of [its website]); selected any material for upload, download, transmission, or storage; or instigated any copying, storage, or distribution" of its photos".

Zillow's systems operate on licensed feeds provided by external third parties, and the providers guarantee those licenses are up to date and authorized. The Court considered that this automated system didn't involve any volitional conduct on part of Zillow, not supporting an argument of direct infringement. This and the various rules within Zillow's systems protected it from direct infringement. Even when notices were filed on behalf of VHT, Zillow acted promptly and removed any infringing images. Overall the Court, therefore, rejected VHT's argument of direct infringement.

Even with this in mind, the jury at first instance did, however, find that Zillow's Digs service did infringe directly on VHT's rights. In considering the evidence issued to the jury, the Court overturned the jury verdict of direct infringement, as VHT had not presented substantial evidence of infringement.

The Court then turned to the matter of fair use in relation to the Digs service. As a short primer, fair use allows for the use of copyright-protected works under certain situations. This is assessed looking at four specific factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. In short, the user would have to do something different with the work, and the more it deviates from the original the more likely it is that fair use applies (in essence), i.e. whether it is 'transformative' or not.

How Digs operated was much like a search engine, allowing users to search for photos of apartments in specific styles or configurations. Recent case law has considered search engines to typically be transformative, but that is by no means a panacea to a claim of infringement.

In assessing the Digs service's features in relation to the first factor, the Court considered that it was not a transformative use, since, while the service tagged the photos and organized them, their intended use and nature remained the same; to display space in an apartment in an artful manner. The images didn't serve a different function from what VHT had intended them for.

In terms of the second factor, the Court quickly concluded that the creativity of the photos is critical to their nature, and therefore potentially deserve a higher degree of protection. While this is true, the fact that the photos were published on the listing platform for Zillow to use did work against them in a finding of non-fair use.

For the third and fourth categories, Zillow copied the entire images, which turned the third factor against them. As they were copied in their entirety, they had a direct impact on VHT's market for licensing photos, including to Zillow. The Court, therefore, rejected Zillow's argument of fair use.

The Court then moved onto secondary liability, which can be established if "...a party (1) has knowledge of another's infringement and (2) either (a) materially contributes to or (b) induces that infringement". A material contribution to infringement would require "...actual knowledge that specific infringing material is available using its system, and can take simple measures to prevent further damage to copyrighted works, yet continues to provide access to infringing works".

Most of Zillow's activities around the works were purely passive. Any evidence adduced in relation to those activities would not, according to the Court, fulfill the requirements for the second prong (even with knowledge of infringing materials). VHT argued that Zillow needed to take proactive steps to prevent infringement, including requesting the URLs of infringing works, which the Court promptly rejected. In the end, the Court considered that no jury would be convinced of secondary liability. In equal mesure, the Court rejected VHT's argument on vicarious liability.

The case is a very interesting one, and yet again demonstrates the difficult position internet services and search engines alike are when it comes to copyright infringement.

As the Oracle Foretold - Court of Appeals Finds no Fair Use for Google's Copying of Java APIs

The Oracle/Google saga has been wagered in the courts for years (discussed on this blog here and here), and many legal scholars enthusiastic about technology have been waiting for the matter to reach its ultimate conclusion. Although the matter is not necessarily over by any means, a recent Court of Appeals decision might have struck the final blow, and ended the matter (and the question of APIs and copyright) for the time being.

The case of Oracle America Inc. v Google LLC concerned the Java software platform, which was developed by Oracle's predecessor, Sun Microsystems. The Java platform also included an Application Programming Interface (API) that allowed for the development of software using pre-written code to execute certain functions without writing the code from scratch, delivered in packages. Google had included some Java API packages in its Android operating system without Oracle's authorisation; specifically 37 Java API packages (amounting to 11,500 lines of code). Android became widely used and very popular, after which Oracle took Google to court for copyright infringement, with proceedings ending up in the Court of Appeals in late March.

The matter focussed on whether Google's copying of the APIs amounted to fair use under 17 USC section 107, which looks at four factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Justice O'Malley, handing down the majority's opinion, started with the first factor, which, specifically, looks at whether the purpose of the use was a commercial one, and was it transformative or not so as to lean towards for fair use.

In terms of commercial use, the Court considered that, while the Android platform is freely distributed (including the aforementioned APIs) does not mean the use is not commercial. Also, as Google earns money from advertising on the platform, this will weigh towards a finding of commercial use. Indeed, in the end the Court found that the use was commercial.

The second part of the first factor looks at how transformative the use is, i.e. "…adds something new, with a further purpose or different character, altering the first with new expression, meaning or message". The use would have to add something new or supersede the original work. The Court determined that Google's use did not change the APIs or their purpose, but used them for the exact same in the Android operating system. The context of the use within smartphones was also not novel. In short, the Court saw that "…where, as here, the copying is verbatim, for an identical function and purpose, and there are no changes to the expressive content or message, a mere change in format (e.g., from desktop and laptop computers to smartphones and tablets) is insufficient as a matter of law to qualify as a transformative use".

Further to the assessment of purpose and character there is also a bad faith argument that the Court considered, meaning whether Google has used the APIs "…in a manner generally compatible with principles of good faith and fair dealing". Even assuming a jury would not be convinced of Google's bad faith use of the APIs, the Court still concluded that the first factor overall weighed against a finding of fair use.

The second factor looks at the nature of the copyright work, i.e. whether the work is more factual or creative, with the latter getting a higher likelihood of protection. The Court did highlight that, while the APIs did involve some level of creativity, they ultimately were for a functional purpose. Even so, the second factor is of very little importance in a finding of fair use, per the Court, they did find that it weighed towards a finding of fair use.

The Court moved onto the third factor, which looks at the substantiality of the copying, which is more an assessment of quality rather than sheer quantity of what was copied. In retaining the functionality of the Java APIs it was necessary to copy only roughly 200 lines of code; however, Google copied nearly the entire API set of 11,500 lines of code. In brief, the Court set out that Google's copying was qualitatively significant and necessary for the creation of the Android OS, and the third factor therefore weighed against a finding of fair use.

Finally, the Court looked at the fourth factor, meaning the copy's effect on the potential market (or the market for any derivative works) or value of the original work. This includes assessing "…the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant… would result in a substantially adverse impact on the potential market for the original". Likely market harm can also be presumed by the courts if the use by the potential infringer is commercial and non-transformative.

The Court determined that, there was clear harm to the market in relation to smartphones, as Java had been employed in many phones and tablets at the time of the launch of Android. In the light of the evidence, they indicated that this would clearly lead to a finding of market harm by a jury. There was also impact on the potential market for Java, not just the existing market, specifically with regards to the smartphone market, which was deemed to be "…a traditional, reasonable, or likely to be developed market". Oracle's lack of development of a smartphone or smartphone OS was irrelevant, as the potential still existed for the company that was taken over by Android.

In balancing all of the above factors, the Court found that Google's use was not fair use, but the Court did note that, while this case did not reach the threshold for fair use in relation to computer code or APIs, they did not "…conclude that a fair use defense could never be sustained in an action involving the copying of computer code".

Google's cross-appeal for declaration that the APIs would not be protected by copyright was also dismissed by the Court, which was dismissed by the Supreme Court in a petition before this judgment.

The case is very interesting, in the light of potential copying within software development. From what this writer understands, the appropriation and repurposing of code is very common in the industry, and this decision could create an environment where companies would be more readily okay with pursuing copying. Google seemingly will not have the option to pursue the matter to the Supreme Court, and will end up paying significant damages to Oracle.

Source: JDSupra

Eyes Wide Shut - Sharing of TV Clips Online by TVEyes not Fair Use, Says US Court of Appeals

Fair use is a tricky issue, and often a thorn on the side of copyright owners. Overall one can appreciate the opportunities it creates, but also the headaches faced by those wishing to pursue someone hiding behind that particular shield. Rightsholders have been holding out for a life-line to narrow down the reach of fair use, and might've just been rewarded a win in the wider balancing act of fair use versus infringement. The matter was faced by the Court of Appeals recently, who issued their decision on the appeal in late February.

The case of Fox News Network LLC v TVEyes Inc. concerned the sharing of segments from TV programming by TVEyes. This is done through the continuous recording of TV shows, and compiling them into a searchable database. Users of TVEyes could then search for clips from various programmes, and watch up to 10 minutes of the content that interests them (and has been used by journalists and TV producers for some time). Clips can also be archived onto TVEyes' servers, or downloaded onto the user's computer. Fox ultimately took TVEyes to court for copyright infringement through the redistribution of their audiovisual content.

The case turned on whether the use by TVEyes could be classed as 'fair use' under 17 USC section 107. This looks at the usual four factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The factors are assessed weighted together in the light of the purpose of copyright.

Under the first factors, the Court focussed on the precedent set by the Google Books case (discussed more here). In the matter, Google's book search service added something new to the rights attached to the written works, and therefore "…communicated something new and different from the original". Similarly to TVEyes' offering, the showing of snippets from each book "…added important value to the basic transformative search function" by allowing for the user to verify the information as being what was looked for.

Some TV clips are simply captivating

The Court concluded that, in the light of the first factor, TVEyes' service "…is similarly transformative insofar as it enables users to isolate, from an ocean of programming, material that is responsive to their interests and needs, and to access that material with targeted precision". The service saves on costs and time spent looking for materials should they be done without a quick search function. Even though the service was for commercial gain, it still was not enough to counter its transformative nature entirely. Ultimately this means that the first factor slightly weighs in favor of fair use.

In terms of the second factor, the Court swiftly concluded that it is inconsequential to this case, even if the subject matter of the works is reporting on factual events.

They then moved onto the third factor, which looks at the amount of the work copied, and whether it was substantial. The Court quickly concluded that, due to the sheer volume of material copied by TVEyes, which amounted to virtually the entirety of Fox's TV programming. When compared to Google Books, TVEyes often created copies of entire segments of programming that might cover all of the relevant material being sought, whereas Google actively blacklisted certain parts of text within search results to prevent this. This amounted to copying all that is important from the protected works, and weighed against fair use.

Finally, the Court looked at the service's effect on the potential market for or value of the works, particularly whether it competes with the original service. Due to the popularity of the service, there clearly was a marketplace for such services that was exploitable by Fox. This would have impacted any hypothetical monies made by Fox should they have offered the service, particularly in the light of unauthorized, unlicensed copying by TVEyes. This means that "…by selling access to Fox's audiovisual content without a license, TVEyes deprives Fox of revenues to which Fox is entitled as the copyright holder", which meant that the fourth factor also favored Fox.

Having considered the above, the Court had to determine whether, all factors considered, the use was fair use or not. The conclusion of this was that TVEyes' service was not justifiable under fair use, due to the sheer amount of works copied and the usurping of a function for which Fox was entitled to demand compensation for, even though the service was slightly transformative.

TVEyes was deemed to be liable for direct infringement of Fox's rights, and the Court imposed a permanent injunction on their services on allowing the viewing, downloading and sharing of clips from the site. The search function, however, was allowed to continue.

The case is a very interesting one, and sets clear boundaries for services similar to the one offered by TVEyes. Should the clips have been restricted to much shorter segments, and not allowed to be downloaded or shared, the company might have escaped liability. Other video service providers will undoubtedly heed this as a warning against any significant sharing of content.

Source: JDSupra

Retrospective - Betamax and Copyright Infringement

When copyright is concerned there has always been a struggle between two competing interests; copyright owners who wish to benefit from the fruits of their labor, and the consumers who want to utilize copyrighted material, sometimes to the potential detriment of the former party. As new methods have emerged in the consumption of copyrighted works, so have the wishes of the owners to protect their material gotten louder. At the end of that path to equilibrium lies a simple albeit still complex question: do people have the right to use copyrighted material in manners which the owner's object to?

One of the most influential cases of the past few decades, Sony Corporation of America v Universal City Studios, endeavored to tackle that issue in relation to a wholly new piece of technology; Betamax tapes. For those born after the 70s (this writer included), Betamax tapes were akin to VHS cassettes which were used to both view and record movies and TV shows, much like DVDs today. This technology enable the recording and re-watching of content on TV at a later date outside of the broadcast times or releases of commercial copies of those programs. Universal Studios and Disney objected to this new technology as it clashed with their interest in re-releasing content to be sold to consumers, which they clearly would not buy should they have recorded the programs once they were broadcast on TV. Subsequently Universal Studios took Sony to court, eventually ending up in the US Supreme Court.

"What is this 'video cassette' you speak of..?"

What the court had to assess was whether the users of Betamax, who recorded content broadcast on TV, were infringing copyright and whether Sony could be held responsible for that infringement. In essence what was being decided was whether Sony was making the infringement of copyright possible by providing the users with this capability through their Betamax recorders, thus being liable for their infringement. What makes this argument is that at the time no such express provision existed in copyright, however Universal argued that Sony was liable for contributory infringement, a principle relating to patents and not copyright. The court put forth that this would come down to assessing whether "...the product is widely used for legitimate, unobjectionable purposes". What this means is just looking at whether the recorder would be used for recording TV programs for a legitimate, unobjectionable purpose, such as for later viewing for the sake of convenience, and not for example used for commercial copying of content. Clearly one could argue that domestic copying of content in that fashion is a non-objectionable use and wholly legitimate, and at the time was one of the primary uses for the device. There always has to be a balance between the legitimate interests of users and the protection afforded to copyright owners.

For Sony to be deemed to be liable under contributory infringement, the court had to decide whether Betamax recorders are capable of commercially significant non-infringing uses. This could be seen as whether the non-infringing uses would impact Universal Studios, or others, commercially through those uses. The court stated that it would be a matter of exploring all possible uses for the machines and determining whether those uses would be infringing or not, and what amount of uses would be commercially significant. The court did decide that Betamax recorders could be capable of commercially significant non-infringing uses, but for Sony to be liable there still remained the factor of whether those uses would be infringing ones.

How teenagers view older generations and themselves

The court drew its attention to the US fair use provision in deciding whether domestic time-shifting would be an infringing act. The court accepted the District Court's findings and saw that domestic time-shifting of content would fall under fair use. This was due to Sony's evidence as to the licensing of content for broadcasting on free TV, and content providers not objecting to its recording for viewing at a later time, and Universal could not show any actual damage caused due to time-shifting.

The decision swayed 5-4 in favor of Sony, but the dissenting opinion given by Justice Blackmun could've shaped copyright in a wholly different manner should it have been the majority opinion. The dissenting view was one which emphasized the exclusive rights given to copyright owners, noting that in their opinion expanding fair use would take away control for the copyright owners and deprive them of their incentive to create. Justice Blackmun also noted that fair use should apply mainly to 'productive' uses of works, such as for criticism and review, and prohibit their uses for 'unproductive' purposes such as time-shifting. Arguably Justice Blackmun's views come from a wrong approach, one which protects the copyright holder's rights but completely ignores the evolving needs and uses by ordinary consumers, thus creating an imbalance. Justice Blackmun also criticized the majority's approach in deciding contributory infringement through the capability of commercially significant non-infringing uses in stating that "[s]uch a definition essentially eviscerates the concept of contributory infringement. Only the most unimaginative manufacturer would be unable to demonstrate that a image-duplicating product is "capable" of substantial noninfringing uses. Surely Congress desired to prevent the sale of products that are used almost exclusively to infringe copyrights; the fact that noninfringing uses exist presumably would have little bearing on that desire".

All-in-all Sony v Universal Studios made an important mark on copyright and fair use, and has helped in formulating current principles in both. Should Sony have been found liable for contributory infringement, how we record or enjoy media today could be totally different. Manufacturers would have to either pay hefty licensing fees for any recording devices, the cost of which would have been undoubtedly transferred onto the end-consumer, or the manufacturers would have refrained from producing such devices completely. As someone who grew up using VHS recorders to watch content, I can't imagine a World without such a capability.