Page:Fair Circumvention.djvu/42

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[Vol. 74:1

Enacted more than sixty years after Justice Story’s decision in Folsom v. Marsh, the landmark Copyright Act of 1909 made no mention of fair use.[1] Nevertheless, courts applying the Copyright Act of 1909 continued to recognize circumstances in which a defendant whose activities amounted to infringement under the literal text of the statute would nevertheless be excused from liability.[2] By no later than the 1940s, the courts were beginning to echo Justice Story’s language from Folsom in determining whether particular acts of copying could be excused under the fair use doctrine:

Whether a particular use of a copyrighted article, without permission of the

owner, is a fair use, depends upon the circumstances of the particular case, and the court must look to the nature and objects of the selections made, the quantity and value of material used, and the degree in which the use may prejudice the sale, diminish the profits, or supersede the objects of the original


Fair use was recognized as expressing a judge-made policy against imposing liability,[4] notwithstanding the literal terms of the copyright statute, where it was believed that imposing liability would disserve public purposes.[5]

  1. Copyright Act of 1909, ch. 320, 35 Stat. 1075. An interim general revision of the federal copyright statute in 1870 similarly took no account of the emerging judicial doctrine of fair use. See Act of July 8, 1870, ch. 230, §§ 85-111, 16 Stat. 198, 212-16. See generally Patry, supra note 186, § 1:33 (discussing 1870 statute).
  2. It took the courts some years to apply the “fair use” label consistently to actions that would amount to copyright infringement but for the judge-made exception to liability. See Meredith Corp. v. Harper & Row Publishers, Inc., 378 F. Supp. 686, 689 (S.D.N.Y. 1974) (“Originally fair use was based on the assumption that the user might copy an insignificant portion of protected material while freely using unprotected material.”) (emphasis and quotation marks omitted). Judge Learned Hand, in some of the earliest cases, seemed to apply the label “fair use” to any use that was excused from liability. See Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936) (equating fair use with taking only “the theme, or ideas, or the like, of a work, though not its expression”) (quotation marks omitted); Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930) (equating fair use with de minimis taking and explaining that “the question is whether the part so taken is substantial, and therefore not a fair use of the copyrighted work”) (quotation marks omitted). Judge Hand’s terminology is no longer apt; instead, the idea-expression dichotomy and the de minimis doctrine provide what we would now recognize as additional, independent defenses to a claim of infringement that render resort to the doctrine of fair use unnecessary. See, e.g., 17 U.S.C. § 102(b) (2006) (“In no case does copyright protection . . . extend to any idea . . . .”); Sandoval v. New Line Cinema Corp., 147 F.3d 215, 217 (2d Cir. 1998) (“[W]here the unauthorized use of a copyrighted work is de minimis, no cause of action will lie for copyright infringement, and determination of a fair use claim is unnecessary.”). But see Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 798 (6th Cir. 2005) (eliminating de minimis doctrine for digital sampling of copyrighted sound recordings).
  3. Matthews Conveyer Co. v. Palmer-Bee Co., 135 F.2d 73, 85 (6th Cir. 1943); cf. supra note 239 and accompanying text.
  4. See, e.g., Tenn. Fabricating Co. v. Moultrie Mfg. Co., 421 F.2d 279, 283 (5th Cir. 1970) (labeling fair use “a judicial rule of public policy” and “a balance wheel and safety valve for the copyright system”) (quotation marks omitted) (quoting John Schulman, Fair Use and the Revision of the Copyright Act, 53 Iowa L. Rev. 832, 832 (1968)).
  5. See Berlin v. E.C. Publications Inc., 329 F.2d 541, 544 (2d Cir. 1964) (“[C]ourts in passing upon particular claims of infringement must occasionally subordinate the copyright holder’s interest in a maximum financial return to the greater public interest in the development of art, science and industry.”); Meredith Corp., 378 F. Supp. at 689 (“The [fair use] doctrine then developed to permit more than insignificant copying of protected material where such copying was clearly in the public interest and served the underlying purpose of the Copyright Act . . . .”) (emphasis omitted).