A pattern-oriented approach to fair use.

• Author: Madison, Michael J.

TABLE OF CONTENTS INTRODUCTION I. FAIR USE AND FILE SHARING II. THE FAIR USE STATUTE AND ITS INTERPRETATIONS A. Conflicts and Complications in the Statutory Text B. Theories of Fair Use C. The Modern Judicial Response 1. Williams & Wilkins Co. v. United States 2. Sony Corp. of America v. Universal City Studios, Inc. 3. Harper & Row, Publishers, Inc. v. Nation Enterprises 4. Campbell v. Acuff-Rose Music, Inc 5. Fair Use in the Circuits a. Williams & Wilkins and Photocopying: American Geophysical Union v. Texaco, Inc. and Princeton University Press v. Michigan Document Services b. Sony and Time-Shifting: A & M Records v. Napster and Recording Industry Association of America v. Diamond Multimedia Systems c. Harper & Row and the News: The Los Angeles News Service Cases d. Campbell and Parody: Dr. Seuss Enterprises v. Penguin Books and SunTrust Bank v. Houghton Mifflin Co. III. FAIR USE TRADITIONS AND PATTERNS A. Fair Use Traditions: Folsom v. Marsh and Nineteenth Century Copyright B. How the Adoption of [section] 107 Did Not Change the Law C. The Judicial Response Revisited 1. Sony Corp. of America v. Universal Studios, Inc. 2. Harper & Row, Publishers, Inc. v. Nation Enterprises 3. Campbell v. Acuff-Rose Music, Inc. 4. Fair Use and Patterns in the Circuits IV. A PATTERN-ORIENTED RECONSTRUCTION OF FAIR USE A. Patterns and the Sources and Uses of Creativity 1. The Pattern-Oriented Approach 2. Patterns and [section] 107 B. The Pattern-Oriented Approach and Patterns in the Law 1. Journalism and News Reporting 2. Parody and Satire 3. Criticism and Comment 4. Scholarship and Research 5. Reverse Engineering 6. Legal and Political Argument 7. Storytelling 8. Comparative Advertising, Information Merchants, and the Ordinary (Personal) Use C. Fair Use Problems and Solutions 1. Improving Fair Use Decision Making: The Ex Ante Problem 2. Fair Use and Markets for Copyrighted Works 3. Defining "Transformative" Uses 4. Distinguishing Between "Commercial" and "Noncommercial" Uses 5. Evaluating Emerging Practices of Personal Use, File Sharing, and Critical Appropriation V. THE PURPOSES OF PATTERNS A. The Importance of Patterns and Social Networks B. The Emergence of Creativity CONCLUSION ABSTRACT

More than 150 years into development of the doctrine of "fair use" in American copyright law, there is no end to legislative, judicial, and academic efforts to rationalize the doctrine. Its codification in the 1976 Copyright Act appears to have contributed to its fragmentation, rather than to its coherence. As did much of copyright law, fair use originated as a judicially unacknowledged effort via the law to validate certain favored practices and patterns. In the main, it has continued to be applied as such, though too often courts mask their implicit validation of these patterns in the now-conventional "case-by-case" application of the statutory fair use "factors" to the defendant's use of the copyrighted work in question. A more explicit acknowledgment of the role of these patterns in fair use analysis would be consistent with fair use, copyright policy, and tradition. Importantly, such an acknowledgment would help to bridge the often difficult conceptual gap between fair use claims asserted by individual defendants and the social and cultural implications of accepting or rejecting those claims. In immediate terms, the approach should lead to a more consistent and predictable fair use jurisprudence. When viewed in light of recent research by cognitive psychologists and other social scientists on patterns and creativity, in broader terms, the approach should enhance the ability of copyright law to promote creative expression.

INTRODUCTION

Ten years ago, the pop philosopher Robert Fulghum published a collection of brief essays in All I Really Need To Know I Learned in Kindergarten. In the first of those essays, he stated his credo: "ALL I REALLY NEED TO KNOW about how to live and what to do and how to be I learned in kindergarten. Wisdom was not at the top of the graduate-school mountain, but there in the sandpile ... [was one of] the things I learned: Share everything." (1) This Article uses Fulghum's simple statement as an entree to one of the most intractable and complex problems in all of law: What is fair use?

Share everything. Surely this must be right, and surely it must have some purchase in our everyday lives as well as in our mythical childhoods. And in law? The idea that sharing is good finds expression in a variety of places in our legal system, often without controversy, typically as applied to tangible things. In the world of legal intangibles--the intellectual property world--claims of sharing lie at the bottom of particularly bitter contemporary disputes. The Internet has brought, among other things, file sharing systems, sometimes known as peer-to-peer networks, (2) which can be used to share (or swap, or worse) digital versions of copyrighted works on the Internet, bypassing traditional publishers and distributors. If sharing is good, the logic goes, use of these systems should be noninfringing under the Copyright Act, either because such use does not implicate the exclusive rights of the copyright holder, (3) or because such use constitutes fair use. (4)

Copyright law, however, currently and endlessly tries to refute that logic, rightly pointing out that "sharing" is an empty concept when considered in isolation. (5) Litigation by copyright owners brought against the suppliers of file sharing technologies and indirectly against end-users or consumers of those technologies has uniformly ended in victory for the plaintiffs and in defeat for the notion that "sharing" in this context constitutes fair use. (6) It seems that neither authors nor their audiences are on the playground, presumably the locus of Fulghum's precept.

Yet the ethics of sharing sometimes do apply in copyright, particularly in fair use. Fair use is, by design, a tool for permitting the unauthorized sharing of works of creative expression. (7) The difficulty in applying those ethics lies in the conceptual apparatus surrounding fair use, not in the idea of sharing itself. That apparatus, as it currently stands, is considerably less than robust.

When, and under what circumstances, should use of file sharing systems to reproduce and distribute copyrighted works be considered fair use under copyright law? At present, the law suggests that such use is never "fair" for copyright purposes. (8) I assume that such an extreme position cannot be sustained with regard to all potential claims. But if such use of file sharing programs by a single pair of computer users might constitute fair use, when does equivalent use by a vast (or even unquantifiable) number of similar users cross the threshold into infringement? The law of fair use gives us neither an answer to this question nor a mechanism for producing an answer. The key to understanding fair use, I suggest, lies in identifying a framework for fair use analysis that connects the issue of individual use of copyrighted works to the issue of use of those works at a social level. In this Article, I characterize that framework as a "pattern-oriented" approach, because it asks whether an individual's use of a work without the consent of the copyright owner is consistent with a provable social or cultural pattern of conduct. That pattern should exist largely independent of the legal system itself and be adjacent to, but not ordinarily part of, the market economy. I suggest that such a pattern-oriented approach offers not only a method of analyzing cases involving file sharing on the Internet, but also a coherent method of analyzing fair use questions generally.

The Article proceeds as follows. Part I introduces the fair use problem by summarizing litigation over file sharing computer technologies. In its most important sense, the problem described in this Article lies deeper than the Internet. Litigation over videotape recorders (9) and photocopiers (10) likewise questioned the fair use implications of unauthorized reproduction of copyrighted works occurring simultaneously at an individual level (11) and at a collective level of massive scale. Those earlier cases did not resolve the question, however, and its persistence exposes continuing flaws in fair use as a whole. Part II examines the text and meaning of the fair use statute, based both on instructions for its application provided by the Supreme Court and also on glosses offered over the years by copyright scholars. Part II concludes (not surprisingly) that neither the statutory text nor judicial or scholarly interpretation offers a stable framework for applying fair use either to file sharing problems or to copyright problems generally. Part III looks more closely at both historical and contemporary judicial decisions regarding fair use. Part III argues that judicial practice offers more hope for the doctrine than might be inferred merely from the text and commentary described in Part II. Though formally fact-specific, fair use decisions have in fact developed a sense of context that can be generalized as a framework for analysis across fair use as a whole.

Part IV revisits fair use doctrine in light of that conclusion, offering a reading that diverges from the conventional approach in that it does not situate fair use in the context of the appropriate limits of the use of a work of authorship. Rather, this reading situates fair use in the context of the confines of a relevant social or cultural pattern or practice. (12) The pattern-oriented approach introduced in this Part is based not on a conventional sense of finding patterns in the cases themselves, (13) but in the different sense of relating the content of the cases to the content of patterns existing in society outside the legal system. Part IV reviews relevant patterns, showing the extent to which fair use jurisprudence has been relatively untroubled as applied to more traditional, concrete...