C.E. Petit of Scrivener’s Error has just finished a series of blog posts on the HathiTrust opinion, and rolled them up into a single essay on the case and its implications. Although I disagree with Petit’s theories of precedent and of fair use, the essay is well worth reading for anyone with a serious interest in book digitization litigation.

To continue in Charlie E. Petit’s Apocalypse Now motif regarding the O&O:

Terminate with extreme prejudice.

Petit says:

“Just as is copyright itself, fair use is a matter of statute.”

Is that actually so clearly true? Fair use and the four-factor fair use balance test, existed as case law, on constitutional grounds, before it was statutory. The statutory explanation of fair use was added after this fact, to clarify and cement fair use rights.

Petit is unhappy with what he calls ‘inelegant’ phrasing: “(a complete defense based on a balancing test among “factors to be considered [which] shall include”… implying that there are others?)”

But my understanding of the legislative history is that this is in fact exactly what is meant, that there may hypothetically be others. The statute is clarifying and cementing the four-factor fair use doctrine already explicated by the courts, and is intentionally not closing off other possible constitutional fair use defenses. (and it would have been a legislative/judicial battle if they had tried, since the courts thought they had constitutional grounds to rule on fair use exceptions without statute). Now to be sure, the courts have not chosen to go down a path of changing or expanding the four-factor test (for a number of reasons, and probably wisely; the four-factor-balancing precedent is vague and open enough already, there is literally no need to add anything more to confuse things, there’s already quite enough play in the rope).

But yeah, fair use is not exactly strictly a matter of statute, the four-factor test was defined by the courts prior to being enshrined in statute — and that explains what otherwise appears to be “suspect logic and inelegant wording of the statute”. And “going outside the scope of the statute” to hint at a “fifth factor” (which is after all intimately related to the first four, to the extent it’s only Petit and not Baer that acknolwedges a “fifth factor”, Baer “folds explicit acknowledgement of this factor into his discussions of the first, third, and fourth factors”) — may not be quite as legally damning as Petit, without acknowledging the pre-statutory history of fair use, suggests — even if he is adding a fifth factor, which I’m not convinced of, the lack of feasibilty of a workable market for these uses seems pretty intimately a part of the fourth “effect on market” factor to me.

@ Jonathan Rochkind

Fair use and the four-factor fair use balance test, existed as case law, on constitutional grounds [emphasis mine], before it was statutory.

Well, the primary way the constitution is connected is of course the constitutional basis for copyright:

Article I, Section 8, Clause 8. “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

What does this have to do with fair use?

Well, the existence of fair use was actually established originally by the courts, not by statute. The four-factor test we know now was originally established in Folsom v. Marsh in 1841 (and not put into statute until the Copyright Act of 1976.

I believe that the judges who established fair use felt the legal justification was the copyright clause in the constitution, but perhaps I am wrong. at any rate, the constitutional authority for the courts to interpret legislation (and the common law) is clearly involved. Trying to read through the somewhat archaic language of Folsom v. Marsh, I don’t actually find any reference to the constitution (so perhaps i was mistaken there), but plenty to English law precedents. Heck, I’m no legal historian.

Ah, the wikipedia article on “Copyright” generally (although oddly not the one on “Fair Use” specifically) says:

“U.S. courts have interpreted this clause of the Constitution to say that the ultimate purpose of copyrights is to encourage the production of creative works for the public benefit, and that therefore the interests of the public are primary over the interests of the author when the two conflict. These rulings have since been formalized into fair use laws and decisions.”

That’s what I meant. Right or wrong. At any rate, where I’m positive I’m right is that the right to fair use in US alw was established by the courts (perhaps based on English precedents), not by statute.

It does occur to me though, that Baer would have been wiser, to the extent that feasibility of a market for these uses plays in his decision, to ask for briefs to be filed on this issue. Although as Petit suggests, maybe that would open things up to questions of fact not suitable for summary judgement. (But putting a question like this before a jury, especially when the facts of what actually happened are not in dispute, would be a huge mess, oh man)