Page:Fair Circumvention.djvu/40

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[Vol. 74:1
BROOKLYN LAW REVIEW

have applied these provisions strictly even where the resulting award of damages seems far disproportionate to any plausible claim of actual harm by the plaintiff.[1] The conjunction of strict liability and heavy penalties makes it all too easy to imagine cases where literal application of the statute would yield an unjust result, requiring an award of damages far disproportionate to the defendant’s actual culpability.

The courts, however, have played an important role here—aiming, with at least some success, to sand the rough edges off of copyright’s strict-liability, sanctions-heavy regime. They have done so by what might at first glance seem to be sheer defiance of Congress, refusing to find liability even in circumstances where the statute appears to require it. Nowhere has this been more clear than in the development of copyright’s doctrine of fair use.

The Supreme Court has characterized fair use as a limitation on copyright holders’ exclusive rights when “rigid application of the copyright statute . . . would stifle the very creativity which that law is designed to foster.”[2] Although the fair use doctrine is now recognized by statute,[3] fair use received legislative recognition only after more than a century of growth as a judge-made copyright exception. The modern fair use doctrine is commonly traced to Justice Story’s 1841 opinion in Folsom v. Marsh.[4] The case was brought by the holder of the copyright in a twelve-volume biography of President Washington that consisted predominantly of edited reproductions of Washington’s own presidential papers.[5] The defendant copied more than three hundred pages of Washington’s records from the plaintiff’s books in order to produce his

  1. See, e.g., BMG Music v. Gonzalez, 430 F.3d 888, 889-90 (7th Cir. 2005) (upholding award of $22,500 based on defendant’s download of 30 copyrighted songs from unauthorized file-sharing service); Judgment in a Civil Case, Virgin Records America, Inc. v. Thomas, No. 06-1497 MJD/RLE (D. Minn. Oct. 5, 2007) (entering judgment for $222,000 based on defendant’s making 24 copyrighted songs available on unauthorized file-sharing service). But see Capitol Records, Inc. v. Thomas, 2008 WL 4405282 at *16-17 (D. Minn. Sept. 24, 2008) (vacating file-sharing judgment and ordering new trial on grounds that jury instructions failed to require proof of actual distribution).
  2. Stewart v. Abend, 495 U.S. 207, 236 (1990). By forbidding copyright holders to restrict certain forms of speech that build upon their own prior works, the fair use doctrine also promotes First Amendment values. See Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003).
  3. 17 U.S.C. § 107 (2006) (“[T]he fair use of a copyrighted work . . . is not an infringement of copyright.”).
  4. 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4,901); see, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 576 (1994) (citing Folsom v. Marsh); Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 550 (1985) (same); Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 475 n.27 (1984) (Blackmun, J., dissenting) (same). For an entertaining review of the Folsom v. Marsh litigation and the decision’s place in the history of copyright, see R. Anthony Reese, The Story of Folsom v. Marsh: Distinguishing Between Infringing and Legitimate Uses, in Intellectual Property Stories 259 (Jane C. Ginsburg & Rochelle Cooper Dreyfuss eds., 2006). A more skeptical view is available in L. Ray Patterson, Folsom v. Marsh and Its Legacy, 5 J. Intell. Prop. L. 431, 431 (1998) (finding Folsom v. Marsh to be “so poorly reasoned that it may be entitled to first place in the category of bad copyright decisions”).
  5. See Folsom, 9 F. Cas. at 345 (“The other eleven volumes consist of the letters of Washington, private and official, and his messages and other public acts, with explanatory notes and occasional illustrations by the editor.”).