CODE OF BEST PRACTICES IN FAIR USE FOR ACADEMIC AND RESEARCH LIBRARIES
7
This flexibility in the law can lead to uncertainty among librarians (as in other
practice communities) about whether specific uses are fair. However, fair use is
flexible, not unreliable. Like any exercise of expressive freedom, taking advantage of
fair use in education and libraries depends on the application of general principles to
specific situations. One way of easing this application is to document the considered
attitudes and best practices of the library community as it works to apply the rules.
In weighing the balance at the heart of fair use analysis, judges generally refer to four
types of considerations mentioned in Section 107 of the Copyright Act: the nature
of the use, the nature of the work used, the extent of the use, and its economic
effect (the so-called “four factors”). Over the years, attempts have been made to
promulgate so-called “fair use guidelines,” with the goal of reducing uncertainty
about the application of this formula—even at a cost to flexibility. Unfortunately,
the processes by which most guidelines have been developed are suspect, and the
results are almost universally over-restrictive.6 In fact, “bright line” tests and even
“rules of thumb” are simply not appropriate to fair use analysis, which requires
case-by-case determinations made through reasoning about how and why a new use
repurposes or recontextualizes existing material.
How judges have interpreted fair use affects the community’s ability to employ fair
use. There are very few cases specifically involving libraries.7 However, we know that
6. See Kenneth Crews, “The Law of Fair Use and the Illusion of Fair-Use Guidelines,” 62 Ohio State
Law Journal 602 (2001).
7. At the time of this writing, there are no judicial opinions describing in any detail the scope of fair use
in a nonprofit educational context. Courts have examined unlicensed copying in for-profit copy shops,
but those cases have explicitly distinguished commercial enterprises from nonprofit ones (see, e.g.,
Princeton University Press v. Michigan Document Svces, 99 F. 3d 1381, 1389 (6th Cir. 1996), (“We
need not decide [the status of nonprofit uses], however, for the fact is that the copying complained of
here was performed on a profit-making basis by a commercial enterprise”). Several cases involving fair
use were filed against universities in the last year or two. Of these, one has been dismissed without a
clear finding on the issue of fair use (AIME et al. v. Regents of Univ. of Cal. et al., No. CV 10-9378
(C.D. Cal. Oct. 10, 2011)). (AIME subsequently filed an amended complaint, which is pending at
the time of this writing, while two others await decision.) See Cambridge U.P. v. Patton, No. 08-1425
(N.D. Ga. filed April 15, 2008) Authors’ Guild, Inc. v. HathiTrust, No. 11-6351 (S.D.N.Y. filed
Sept. 12, 2011). The path of litigation is typically long and unpredictable, and even a final decision in
one case may not provide clear guidance to users in other judicial districts or whose uses may differ in
important ways.
7
This flexibility in the law can lead to uncertainty among librarians (as in other
practice communities) about whether specific uses are fair. However, fair use is
flexible, not unreliable. Like any exercise of expressive freedom, taking advantage of
fair use in education and libraries depends on the application of general principles to
specific situations. One way of easing this application is to document the considered
attitudes and best practices of the library community as it works to apply the rules.
In weighing the balance at the heart of fair use analysis, judges generally refer to four
types of considerations mentioned in Section 107 of the Copyright Act: the nature
of the use, the nature of the work used, the extent of the use, and its economic
effect (the so-called “four factors”). Over the years, attempts have been made to
promulgate so-called “fair use guidelines,” with the goal of reducing uncertainty
about the application of this formula—even at a cost to flexibility. Unfortunately,
the processes by which most guidelines have been developed are suspect, and the
results are almost universally over-restrictive.6 In fact, “bright line” tests and even
“rules of thumb” are simply not appropriate to fair use analysis, which requires
case-by-case determinations made through reasoning about how and why a new use
repurposes or recontextualizes existing material.
How judges have interpreted fair use affects the community’s ability to employ fair
use. There are very few cases specifically involving libraries.7 However, we know that
6. See Kenneth Crews, “The Law of Fair Use and the Illusion of Fair-Use Guidelines,” 62 Ohio State
Law Journal 602 (2001).
7. At the time of this writing, there are no judicial opinions describing in any detail the scope of fair use
in a nonprofit educational context. Courts have examined unlicensed copying in for-profit copy shops,
but those cases have explicitly distinguished commercial enterprises from nonprofit ones (see, e.g.,
Princeton University Press v. Michigan Document Svces, 99 F. 3d 1381, 1389 (6th Cir. 1996), (“We
need not decide [the status of nonprofit uses], however, for the fact is that the copying complained of
here was performed on a profit-making basis by a commercial enterprise”). Several cases involving fair
use were filed against universities in the last year or two. Of these, one has been dismissed without a
clear finding on the issue of fair use (AIME et al. v. Regents of Univ. of Cal. et al., No. CV 10-9378
(C.D. Cal. Oct. 10, 2011)). (AIME subsequently filed an amended complaint, which is pending at
the time of this writing, while two others await decision.) See Cambridge U.P. v. Patton, No. 08-1425
(N.D. Ga. filed April 15, 2008) Authors’ Guild, Inc. v. HathiTrust, No. 11-6351 (S.D.N.Y. filed
Sept. 12, 2011). The path of litigation is typically long and unpredictable, and even a final decision in
one case may not provide clear guidance to users in other judicial districts or whose uses may differ in
important ways.
