Why The Latest Supreme Court Ruling In Kirtsaeng May Have A Much Bigger Impact On Copyright & Fair Use

from the phrasing-matters dept

Earlier this month, we wrote briefly about the Supreme Court’s second Kirtsaeng ruling, which focused on the issue of fee shifting in copyright cases. We didn’t spend that much time on it (and hadn’t covered the run up to the Supreme Court either). We had basically assumed that the first Kirtsaeng ruling from the Supreme Court, about whether or not the First Sale Doctrine applied to goods outside the US, was the real legacy of the Kirtsaeng fight, rather than a more mundane issue about fee shifting — especially when the more recent Kirtsaeng ruling was basically just “courts need to look at more than just if the original lawsuit was ‘objectively reasonable'” (but fails to give much guidance about what else should be looked at). Yes, we noted, this may ward off some bogus copyright lawsuits, depending on what standards the courts start to coalesce around, but there wasn’t much big news in the ruling.

However, copyright expert Jonathan Band spotted something important that many folks missed. Buried within the ruling are some statements about the purpose of copyright that may become quite useful in future cases. Specifically, it looks like the Supreme Court has just blessed the fact that copyright should encourage people to build upon existing works, and appears to be giving a nod to a broad interpretation of fair use that says that building on the works of others is a key part of the purpose copyright itself.

The Court quoted its 1994 decision in Fogerty v. Fantasy that ?copyright law ultimately serves the purpose of enriching the general public through access to creative works.? The Court then stated, ?the statute achieves that end by striking a balance between two subsidiary aims: encouraging and rewarding authors? creations while enabling others to build on that work.?

The Court?s focus on the subsidiary aim of ?enabling others to build on that work? goes beyond its previous pronouncements concerning how to achieve the objective of enriching the public through access to works. In 1984, in Sony v. Universal, the Court recognized that defining the appropriate scope of copyright protection ?involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society?s competing interest in the free flow of ideas, information, and commerce on the other?? In 1991, in Feist v. Rural Telephone, the Court stated that ?copyright assures authors the right to their original expression, but encourages others to build freely on the ideas and information conveyed by a work.?

Thus, in these earlier cases, the Court discussed building on ?the ideas and information conveyed by a work.? But in Kirtsaeng, the Court did not limit the reuse to ?the ideas and information conveyed by a work;? rather, it more broadly addressed building ?on that work.? Presumably the Kirtsaeng Court was referring not only to the ideas and information in the work, but also the expression in the work?to the extent use of the expression served ?the purpose of enriching the general through access to creative works.? In other words, the Kirtsaeng Court was referring to fair use and other exceptions and limitations in the Copyright Act.

Band notes that hopefully this will help serve as a reminder to Congress about the important public interest objectives built into copyright. But I think it may start to show up in lots of other fair use lawsuits as well…

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Comments on “Why The Latest Supreme Court Ruling In Kirtsaeng May Have A Much Bigger Impact On Copyright & Fair Use”

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You sort of have to squint really hard and try not to focus to get the sort of meaning you are trying to extract from the court’s ruling.

The concept of “encourages others to build freely on the ideas and information conveyed by a work” doesn’t mean take the existing work, add a little too it, and call it your own. It seems pretty plainly to be the much more simple concept of furthering the ideas or concepts raised, rather than the specific content of the work. As an example, Star Trek (the original TV show) has been the inspiration for any number of other “space future” shows and movies. It’s spawn a number of movies, books, and so on. Star Trek in turn was build upon the ideas and concepts raised through science fiction books and short stories dating back 100 years or more, most specifically the pulp fiction periods which also brought us the works of authors like Azimov and Dick.

Thinking that the court has suddenly given you an avenue for much wider fair use, or wider use of specific characters, stories, or other content to “roll your own” is really pushing way too hard to find the golden needle in a legal haystack.

Mike Masnicksays:


Anything that can weaken protections for artists is “useful” for Mike Masnick

Actually, anything that enables more creativity and opens up MORE possibilities for artists is useful.

What do you have against artists who build on the works of those who came before? Why do you wish to destroy them and silence their art?


Re: Re:

“Actually, anything that enables more creativity and opens up MORE possibilities for artists is useful.”

I think part of the problem here is that you are looking at “gains” (derivative artists can do more) without considering the losses on the other side.

It’s important because of the knock on effects. When you discourage the current and original artists from creating by taking away possibilities for others. A writer considering a series of books (think Harry Potter, example) would be discouraged by knowing that their follow up books would be competing with a sea of stories written with the same characters and the same circumstances.

You could say it would be great to have hundreds or thousands of Potter books, you might have to consider that the author may have decided to not bother writing the original work to start with.

You could consider that a famous writer like Phillip Dick wrote many of his stories literally to pay next month’s rent. The lack of copyright and lack of a structure under which the companies paying for his work could profit would discourage them from paying for his work (or would pay less), and as a result maybe he wouldn’t have written them at all.

Volume of stuff is nothing compared to encouraging the original artists who dream up something new, and don’t just copy the work of others. Put another way, there is no standing on the shoulders of giants if you discourage the giants.

cpt kangarooskisays:

Re: Re: Re:

The quality argument is bogus, I’m afraid.

First, the government has no business trying to dictate that some authors are of good quality, and should be encouraged, while others are not, and should either not be encouraged by the way copyright is implemented, or should be actively discouraged. This is way outside of the government’s area of competence, and is alarmingly paternalistic to boot. Part of the genius of copyright is that it lets the market choose — which incidentally means that it doesn’t encourage giants, it encourages authors who are successful in the mass market. Rowling is very popular, but is no literary giant. If there’s a series of movies and theme park and zillion dollar marketing machine supporting Cynthia Ozick, say, I haven’t heard about it.

Second, quantity is the only way to get quality. There’s a rule of thumb about creative works, called Sturgeon’s Law. Sturgeon discovered that 90% of everything is crap. (And he was probably an optimist) While there is no agreement on just which 10% of the total is the good stuff, the only way to get more of it is to get more of everything.

If you’d like to see an excellent example of this, look at music, where musicians cover one another regularly, and sometimes produce a cover that is as good as, or better than, the original. For example, Bob Dylan, like everyone, prefers the Jimi Hendrix cover of All Along the Watchtower to the Dylan original. And you’ve probably never heard the original of Bette Davis Eyes, but I assure you it’s absolute garbage. Most people probably don’t even know that the Kim Carnes cover is a cover, the original is so justifiably obscure. You’d see even more covers in music if the economic incentives weren’t somewhat against it (songwriter royalties are where a lot of the money is, and you don’t get those covering other people’s music, so you want to be a singer-songwriter, even if it’s a waste of your time or not a good fit for your talents).

As for myself, I’d bet good money that if there were hundreds or thousands of Potter books, at least a few of those would be better than Rowling’s. Why would we not want that? I certainly don’t think that it would’ve discouraged Rowling. I’m sure she wasn’t thinking she’d be the wealthiest woman in the UK after the queen when she started.


Re: Anything that can weaken protections for artists

I’ll say it yet again.

Artists must get rewarded for creating things people value. I don’t know anyone who disagrees.

But copyright is no longer a good way to do it.

It used to be a good way – before copying became trivially easy.

Now we need a new way.

Personally I like automated patronage – electronic “tip jars” that ensure micropayments go straight to artists (not middlemen) each time a work is enjoyed.

But I’m sure there are other ways as well. We have to stop defending the dead horse of copyright, and start moving on to something that will actually help artists.

cpt kangarooskisays:

Re: Re: Anything that can weaken protections for artists

Artists must get rewarded for creating things people value. I don’t know anyone who disagrees.

I disagree. It’s nice to meet you.

I would say instead that:

If people value things created by artists;
If rewarding artists would cause them to create more and/or better things, which results in greater value to people;
If the increase in value outweighs the cost of the reward to people;
Should all these things be true, it may be appropriate to offer such a reward to artists, though it is by no means mandatory or imperative.

I would agree, however, that there is far too little attention being paid to practical solutions, instead of just insisting that history, technology, and social attitudes all go back in time by 50 years or so and stay there.


Re: Re: Re: Anything that can weaken protections for artists

Despite your stated disagreement, I don’t think we really have opposing views.

If people value things created by artists; – obviously some people value some things created by artists. So at least some of the time this is true.

If rewarding artists would cause them to create more and/or better things, which results in greater value to people; – obviously this is true in some cases.

If the increase in value outweighs the cost of the reward to people; – for some amount of reward, this also is obviously going to be the case.

So we seem to agree that in some cases a reward is appropriate.

Please note – I didn’t say simply “Artists must get rewarded for creating things”. That would reward them for valueless things.

And as for the “must”, it’s imperative if you think increasing value for everyone, while decreasing it for no one, is imperative. That is, if you think making the world a better place is really important, than this is really important.



Copyright law today is very much like the old story about the man who set out to drain a swamp.

At first it seemed like a good idea, and throughout there have been good reasons to drain that swamp. But the alligators in the swamp were problematic and the man got distracted by fighting the alligators.

Nowadays, the original purpose for being in that swamp is long forgotten, and the alligators have formed lobbyist groups. We have laws protecting the rights of the alligators and they keep insisting it’s their swamp. They have the lobbied-for and paid-for legislation to prove it.

Copyright was always about expanding the public domain as a primary goal, not financing artists. People have just gotten so used to those fat paychecks that they’ve forgotten why copyright exists at all.

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