Prof. Doug Lichtman, UCLA School of Law
August 11, 2014

My colleagues and I have written a great deal about copyright law’s “fair use” doctrine on this site over the years.  We have disagreed about cases, and we have struggled with various aspects of the standard fair use test.  Through all of those discussions, however, I have always wanted to propose a middle ground – a less draconian fair use doctrine that, instead of forcing courts and commentators to choose between the extremes of infringement and excuse, would instead open the door to a possibility where infringements could be permitted but at the same time priced.  Put differently, I have always been tempted to argue that there ought to be a new type of fair use, structured as a compulsory license of sorts.  Under this approach, the fair use doctrine would still, in appropriate cases, act as a complete defense to infringement.  But, in other cases, fair use would instead allow various unauthorized uses but only on the condition that the erstwhile infringers pay up.

The logic of this middle ground is, I think, straightforward.  Many people explain the fair use doctrine by invoking the famous quote from Isaac Newton about how a dwarf, standing on the shoulder of a giant, can see farther than the giant himself.  The quote’s exact origins are murky, but the quote is typically understood as a reminder that things like derivative work and downstream reuse can meaningfully move the ball forward.  And that’s indisputably true.  But, as I tell my students each year, the fair use doctrine is not about the question of whether it is desirable for dwarves to stand on the shoulders of giants.  Of course that is desirable.  The fair use doctrine is about whether the dwarves ought to ask permission, and whether the dwarves ought to pay.

This is where the conventional fair use doctrine then fails.  Under the conventional fair use doctrine, courts have only two options.  Courts can either rule that the erstwhile infringer neither needed to ask permission nor needed to pay; or courts can rule that the erstwhile infringer should have asked and hence must now (a) pay for past damages, and (b) negotiate with the copyright holder for a license, if possible, for future use.

That dichotomy leaves out, of course, the obvious middle ground: where the court would rule that the accused infringer was right to use the relevant work without permission, but then also rule that the accused infringer must now pay some court-ordered amount for past and future use.

Note that current law does not do anything like this.  Yes, sure, copyright law offers a smattering of compulsory licenses for very specific situations like the compulsory licenses relevant to services like Pandora.  But copyright law does not have a broad, general, flexible compulsory license of the sort I imagine here.  Similarly, sure, courts are always free to rule in favor of a copyright holder but then refuse to grant injunctive relief.  But that, too, is not the same as what I describe here, because in a case like that the court would be obligated to impose damages calculated according to the normal rules of copyright law.  A “middle ground” approach to fair use, by contrast, would offer the court significantly more flexibility to set the compulsory fee at a level that is appropriate in light of whatever policy considerations led the court to rule that the use was fair in the first place.

A fair use middle ground could be enormously helpful when it comes to achieving copyright law’s purpose.  A case like the Google Books case is complicated, for example, but I suspect that the overwhelming majority of courts and commentators would prefer an outcome where authors are paid (good for long-run incentives) but the project is not significantly hindered (good for rewarding ingenuity like Google’s here) over extreme outcomes like the one where a district court recently ruled that Google should simply keep all the money for itself.

Comments From Our Readers

Doug Lichtman:

Jane Ginsburg pointed out to me that she, too, has been thinking along these lines, and in much richer detail. Her link is below. I wonder if this really might be a good next step in the evolution of the fair use doctrine. Randy Picker, what do you think?

John E. Miller:

In Judge Chin’s Authors Guild v. Google decision, page 19, it states from Section 107:

“1. Purpose and Character of Use

The first factor is ‘the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.’ 17 U.S.C. Sec. 107(1).
Google’s use of the copyrighted works is highly transformative….”

Then on Page 22 Judge Chin states:

“While this is a consideration to be acknowledged in weighing all the factors, even assuming Google’s principal motivation is profit, the fact is that Google Books serves several important educational purposes.”

I would note the word “OR” in Section 107(1) and that it makes no specific provision that a use can be commercial AND educational and still be considered fair use. Judge Chin after noting on page 19 the 107(1) clause with the OR, then jumps right to the transformative analysis and never touches the notion that 107(1) does not mention the case that a use can be for-profit AND educational; 107(1) only describes the case that it can be for a non-profit educational purpose. Google is not a non-profit.