CAMPBELL AT 21/SONY AT 31
Jessica Litman(fn*)
Abstract: When copyright lawyers gather to discuss fair use, the most common refrain is its alarming expansion. Their distress about fair use's enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. In the nearly forty years since Congress enacted the 1976 copyright act, the rights of copyright owners have expanded markedly. Copyright owners' demands for further expansion continue unabated. Meanwhile, they raise strident objections to proposals to add new privileges and exceptions to the statute to shelter non-infringing uses that might be implicated by their expanded rights. Copyright owners have used the resulting uncertainty over the scope of liability for new uses to litigate some new businesses into bankruptcy before their legality could be determined. These developments push fair use to shelter new uses and users. When lawyers for copyright owners complain that fair use has stretched beyond their expectations, they fail to acknowledge their own responsibility for its growth. This Article takes up these questions with particular attention to the thirty-one-year-old decision in Sony v. Universal Studios, and Congress's assumptions about individual and contributory liability for personal copying before and after the Sony case.
INTRODUCTION................................................................................651
I. A SURPRISING LAWSUIT........................................................655
II. WHAT WE LEARN FROM THE LEGISLATIVE HISTORY .. 657
III. SONY AND ITS AFTERMATH..................................................663
IV. FAIR USE AND CAMPBELL V. ACUFF-ROSE........................672
V. PERSONAL USES, CONTRIBUTORY LIABILITY, AND CONGRESS.................................................................................674
CONCLUSION.....................................................................................683
INTRODUCTION
The occasion for this symposium is that Campbell v. Acuff-Rose Music, Inc.(fn1) had its twenty-first birthday earlier this year, and has therefore achieved its majority. We've been invited to examine Campbell 's "profound influence on fair use."(fn2) When the Court handed down the Campbell decision twenty-one years ago, the opinion garnered generally positive reviews.(fn3) More recently, the decision, or its application by lower courts, has inspired significant criticism. The most common complaint is that Campbell's instruction to focus on the transformativeness of defendant's use has given lower courts license to find a use fair whenever they are so inclined.(fn4)
When copyright lawyers gather to discuss fair use these days, the most common refrain is its alarming expansion.(fn5) This distress about fair use's enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. It's uncontroversial that the scope of U.S. copyright has expanded in the past fifty years.(fn6) It covers a broader array of copyrightable subject matter.(fn7) It lasts longer.(fn8) It grants owners additional rights.(fn9) Court decisions have expanded the scope of traditional copyright rights.(fn10) Congress has greatly enhanced the remedies for infringement.(fn11) Individuals and organizations supporting strong copyright laws applaud these expansions.(fn12) These same interests express surprise and dismay that, over the past fifty years, the fair use privilege has come to shelter a broader range of uses.(fn13)
I have no reason to doubt the sincerity of those expressions of dismay. The idea, though, that copyright owners' rights could be greatly inflated without inspiring a comparable expansion in fair use seems delusive. If many, many more uses are arguably prima facie infringing now than before, it follows that fair use will need to stretch to permit more of them. None of the voices expressing the hope that fair use could be confined or returned to its mid-twentieth century boundaries seem to endorse a proposal to cut back copyright rights to their mid-twentieth century limits.(fn14) They have been steadfast in insisting that it would be dangerous to allow Congress to consider balancing expanded copyright with appropriately expanded express limitations and exceptions.(fn15) They urge, nonetheless, that fair use must be narrowly contained.(fn16)
If Campbell is twenty-one years old, that means that another Supreme Court fair use case, Sony Corp. of Am. v. Universal City Studios,(fn17) had its thirty-first birthday in January. Some copyright lawyers with long memories identify Sony as the Supreme Court case in which fair use started to go wrong.(fn18)
In the 1976 Copyright Act, Congress replaced a scheme of bounded, defined copyright rights specified for each copyright subject-matter category with a broad statement of generally applicable copyright exclusive rights offset by a list of detailed exceptions.(fn19) It also codified the doctrine of fair use. The Sony case, filed within weeks of the 1976 Act's enactment, was the first case to pose the question whether fair use was an appropriate shelter for conduct that Congress had failed to consider.(fn20) Answering that question in favor of either party would require some revision in traditional understandings of fair use.
In Sony, the Court reshaped fair use in order to limit contributory liability and shelter personal uses.(fn21) That fair use formulation didn't work out so well for traditional beneficiaries of the fair use privilege, most of whom made uses that were both public and commercial.(fn22) In Campbell, the Court revised fair use again for the benefit of traditional fair users.(fn23) That might have left personal users out in the rain. But in the ten years that the Sony test had held sway, readers, consumers, and businesses that made products to augment consumers' enjoyment of copyright works had adjusted their expectations and habits to a world in which fair use shielded personal uses from copyright liability. If copyright owners hoped that Campbell's recalibration of the fair use analysis would simply remove noncommercial and personal copies from fair use's shelter, they were disappointed. But that hope was never politically reasonable.
The Campbell decision, and its application by lower courts, makes more sense when one appreciates its predecessor, Sony v. Universal. The Sony decision, in turn, makes more sense when one recognizes the challenges posed by problems that Congress failed to address when it enacted the 1976 Act.
I. A SURPRISING LAWSUIT
The 1909 Copyright Act adopted the strategy of furnishing detailed specifications of the copyright rights available to owners of each type of work.(fn24) At the turn of the twentieth century, the specification of rights may well have seemed comprehensive, but as the century wore on, it turned out to be seriously incomplete.(fn25) The 1976 Act, therefore, took the opposite strategy of articulating the rights in very broad terms, and then loading up the statute with exceptions, limitations, and privileges for the uses that Congress deemed to be non-infringing.(fn26) Congress paid heed, though, only to uses and users brought to its attention by entities involved in hammering out copyright revision, and did not address a host of uses and users not presented to it.(fn27)
Once the 1976 Act took effect, users and uses that Congress had not considered inevitably arose in lawsuits. Courts were left with the unappealing choice of assimilating those uses to activities that Congress had considered;(fn28) finding implicit privileges, exceptions, and limitations in the statute;(fn29) or redesigning a statutory exception, limitation, or privilege to fit the new situation.(fn30) The Sony litigation posed two large problems to which Congress had given little thought: the liability of consumers for making copies for personal use, and the liability of device manufacturers for facilitating infringing consumer uses.
Sony was not the first case seeking to hold the manufacturer of a device liable because the device facilitated infringements,(fn31) but it was the first suit seeking to hold a manufacturer of a device liable for facilitating allegedly infringing behavior by millions of consumers in their homes.(fn32) The case raised problems that Congress had not considered during the twenty-year process that led to the revision. Members of Congress appear to have assumed that individuals were not liable for making personal copies of copyrighted works, and they simply hadn't imagined a suit against a device maker seeking to recover for the actions of millions of individuals in their homes.(fn33) Indeed, although Congress paid significant attention to newfangled copying technologies, and had asked a blue ribbon commission to consider the issues posed by new methods of reproduction, nobody appears to have suggested to congressional committees or to the members of the Commission on New Technological Uses (CONTU) that the manufacturers of copying devices might be liable for infringing uses of their machines.
II. WHAT WE LEARN FROM THE LEGISLATIVE HISTORY
The disruptive technologies of the 1960s were photocopying and audiotape recording. Computers were on the horizon, but the threats they posed were still hypothetical. When educators asked for exemptions for educational photocopying and...
