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THE SCOPE OF FAIR USE 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COURTS, INTELLECTUAL PROPERTY, 

AND THE INTERNET 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

JANUARY 28, 2014 

Serial No. 113–82 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

HOWARD COBLE, North Carolina, Chairman 

TOM MARINO, Pennsylvania, Vice-Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

TED POE, Texas 

JASON CHAFFETZ, Utah 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

JUDY CHU, California 

TED DEUTCH, Florida 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

[Vacant] 

JOE KEELEY, Chief Counsel 

STEPHANIE MOORE, Minority Counsel 
(III) 

C O N T E N T S 

JANUARY 28, 2014 

Page 

OPENING STATEMENTS 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Courts, Intellectual 

Property, and the Internet .................................................................................. 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Ranking Member, Committee on the Judiciary, and 

Member, Subcommittee on Courts, Intellectual Property, and the Internet .. 2 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 3 

WITNESSES 

Peter Jaszi, Professor, Faculty Director, Glushko-Samuelson Intellectual 

Property Clinic, Washington College of Law, American University 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 8 

June M. Besek, Executive Director, Kernochan Center for Law, Media and 

the Arts and Lecturer-in-Law, Columbia School of LAw 

Oral Testimony ..................................................................................................... 13 

Prepared Statement ............................................................................................. 14 

Naomi Novik, Author and Co-Founder, Organization for Transformative 

Works 

Oral Testimony ..................................................................................................... 22 

Prepared Statement ............................................................................................. 25 

David Lowery, Singer/Songwriter and Lecturer, Terry College of Business, 

University of Georgia 

Oral Testimony ..................................................................................................... 32 

Prepared Statement ............................................................................................. 34 

Kurt Wimmer, General Counsel, Newspaper Association of America 

Oral Testimony ..................................................................................................... 40 

Prepared Statement ............................................................................................. 42 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Subcommittee on Courts, 

Intellectual Property, and the Internet .............................................................. 58 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Material submitted by the Honorable Blake Farenthold, a Representative 

in Congress from the State of Texas, and Member, Subcommittee on Courts, 

Intellectual Property, and the Internet .............................................................. 70 

Prepared Statement of the Association of American Publishers (AAP) .............. 104 

Prepared Statement of the American Council on Education (ACE) .................... 112 

Prepared Statement of the American Society of Media Photographers (ASMP) 116 
Page

IV 

Prepared Statement of the Computer & Communications Industry Association 

(CCIA) ................................................................................................................... 123 

Letter from the Copyright Alliance ........................................................................ 127 

Prepared Statement of the Future of Music Coalition ......................................... 135 

Prepared Statement of the Library Copyright Alliance (LCA) ............................ 144 

Prepared Statement of Marc Maurer, President, The National Federation 

of the Blind ........................................................................................................... 155 

Prepared Statement of Sherwin Siy, Vice President, Legal Affairs, Public 

Knowledge ............................................................................................................. 162 
(1) 

THE SCOPE OF FAIR USE 

TUESDAY, JANUARY 28, 2014 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 1:32 p.m., in room 

2141, Rayburn Office Building, the Honorable Howard Coble 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Coble, Goodlatte, Conyers, Marino, 

Smith of Texas, Holding, Collins, Smith of Missouri, Johnson, Chu, 

Deutch, DelBene, Nadler, and Lofgren. 

Staff present: (Majority) Joe Keeley, Chief Counsel; Olivia Lee, 

Clerk; (Minority) Stephanie Moore, Minority Counsel; Jason Everett, Counsel. 

Mr. COBLE. Good afternoon, ladies and gentlemen. 

The Subcommittee on Courts, Intellectual Property, and the 

Internet will come to order. Without objection, the Chair is authorized to declare recesses of the Subcommittee at any time. 

We welcome all of our witnesses today. 

And I will give my opening statement at this point. And I think 

Mr. Conyers is en route, I am told. 

Fair use was formally incorporated into our copyright law in 

1976 and has been at the heart of a large number of copyright infringement disputes. Disputes over fair use range from cases that 

only pertain to individual uses of copyrighted works to cases involving high-technology goods, which oftentimes can affect millions of 

consumers in congressional districts throughout the country. 

North Carolina, my state, is home to several large universities 

that rely upon copyright law to protect their research and innovation at the same time, and through fair use, to make other works 

available for libraries, scholarship, and other research. Fair use 

has an important role in our copyright system. And while it offers 

tremendous benefits, it has also raised some concerns, which is 

why today’s hearing is so important. 

Rather than steal thunder from our talented panel of witnesses, 

I am going to withhold my comments about the pros and cons of 

fair use, until our expert witnesses have had an opportunity to lay 

out their arguments of what has worked well and what deserves 

additional scrutiny. 
2 

As many of you know, the strength of fair use is that it is somewhat ambiguous, leaving the courts with the discretion to clarify 

what is and what is not fair use. This ambiguity is also, unfortunately, its greatest weakness, particularly in the digital era because new technologies develop far faster than disputes are resolved in the courts. We have an important role and many believe 

that we can do a better job providing the courts with guidance on 

what we intend and what we do not intend to be fair use, which 

could help resolve many disputes dealing with fair use. 

It is true that fair use can be very controversial. But, I want to 

assure our witnesses and those in the audience today that all of the 

extra security you see today on the Capitol complex is due to the 

State of the Union Address rather than the topic of this hearing. 

[Laughter.] 

So, we can all rest easy about that. 

So, please feel free to speak candidly and help us understand 

how we can improve fair use and protect the rights of authors and 

creators. 

In closing, we welcome our eminently qualified panel of witnesses. Thank you for taking time from your busy schedules to join 

us today. And we look forward to hearing from you. 

I yield back my time and now recognize the distinguished gentleman from Michigan, the Ranking Member of the full Committee, 

Mr. John Conyers. 

Mr. CONYERS. Thank you, Chairman Coble. It is very kind of you 

to bring us all together again for this first hearing. 

Today’s hearing provides an important opportunity to examine 

the scope of the fair use doctrine, as codified in section 107 of the 

copyright law, fair use is an affirmative defense against infringement, under certain criteria as a starting point. I generally believe 

that fair use is working as intended. It provides a limited exception 

to the creator’s property rights when certain public interests conflict with those rights. 

The current law attempts to strike a delicate balance between 

the public interests and a creator’s ability to earn a living from his 

or her work. Creators should be able to tell new stories that contribute to public learning by using permitted copyrighted material 

as historical artifacts to depict real-world scenes and events. Historians, biographers, and filmmakers use these materials in their 

works to draw meaning and insights about historical events. The 

use of this copyrighted material is essential to discuss historic 

events, which is critical to news organizations and public broadcasters. Additionally, current law, while not perfect, provides reliable guidance to copyright holders. 

Although we must continue to monitor this area, as digital technology continues to develop and change distribution of content, we 

must be vigilant in safeguarding the rights of creators. In particular, I want the witnesses today to address whether certain calls 

for expansion of fair use is due partly to the fact that specific statutory limitations have not kept pace with emerging technologies. 

And finally, content owners and user groups should continue to 

develop best practices to ensure that both of their interests are reflected. To be clear, I believe that the interests in maintaining the 

fair use’s historic role as a flexible doctrine should continue to be 
3 

applied in a broad range of contexts. We should also reexamine the 

application of, quote, unquote, ‘‘Transformative use standard.’’ The 

transformative use standard has become all things to all people. 

Fair use impacts all types of industry, including filmmaking, poetry, photography, music, education, and journalism. We must continue to encourage these industries to develop best practices. 

I too look forward to hearing the witnesses discuss their opinions 

about the scope of fair use and what steps, if any, they believe we 

in Congress should take to make the law more effective and efficient. 

I thank you, Chairman. 

Mr. COBLE. I thank the gentleman from Michigan, Mr. Conyers. 

And the Chair is now pleased to recognize the distinguished gentleman from Virginia, the Chairman of the full Judiciary Committee, Mr. Goodlatte. 

Mr. GOODLATTE. Thank you very much, Mr. Chairman. 

This afternoon the Subcommittee will hear about a crucial component of our Nation’s copyright law system, fair use. As a judicial 

doctrine, fair use has long been part of copyright infringement 

cases. As a statutory provision, however, fair use is a much more 

recent part of our Nation’s copyright law, codified in section 107 

only in 1976. With the exception of the last sentence of section 107 

that added in 1992 to address fair use issues related to unpublished works, section 107 has remained unchanged since 1976. 

Over the years, fair use has been widely recognized as providing 

flexibility in the copyright system, flexibility that has enabled commercial parody and flexibility that has encouraged new business 

models in the tech sector. Fair use has been at the heart of several 

important Supreme Court cases, such as the Pretty Woman and 

Betamax cases. While there is no doubt that flexibility in the copyright system is beneficial, certainty, with regard to our legal provisions, is just as beneficial, both for copyright owners and copyright 

users. Not every dispute over what is and what is not fair use 

should require a judicial interpretation. 

So, I am interested in learning how the statutory provisions of 

section 107 have succeeded since their initial codification in 1976. 

Are these provisions too specific or not specific enough? Are the 

current four factors the appropriate factors? And, are they defined 

correctly? How should fair use interact with other provisions of 

copyright law? And, probably the most important question, how 

does one define what is transformative? 

As several of our witnesses have noted in their written testimony, the test of what is transformative has been widely viewed 

by Federal judges to be of primary importance. I look forward to 

hearing—learning more about this and other fair use issues this 

morning. 

And I thank the Chairman and yield back. 

Mr. COBLE. I thank the Chairman. 

And the statements of other Members of the Judiciary Committee, without objection, will be made part of the record. 

Ladies and gentlemen, there is a no taxpayer funded prohibition 

for funding abortion, and it will be on the floor later today. The Judiciary Committee has been given a timeslot and I think some of 

the Members, John, maybe will want to participate in that. So, 
4 

when that timeslot arrives, we will stand in a brief recess giving— 

to accommodate those who want to go on the floor. So, we will try 

to keep this going as quickly as we can, without keeping you all 

here until dark. [Laughter.] 

We traditionally swear in our witnesses—— 

Mr. NADLER. Mr. Chairman? 

Mr. COBLE. Yes, sir. 

Mr. NADLER. Mr. Chairman, it is, I believe, the invaluable custom of the House that a Committee or Subcommittee hearing does 

not occur while a Committee bill is pending on the floor. And that 

means the entire Committee bill, since I am sure many Members 

of the Committee will want to be on the floor for debate on the 

abortion bill, a rather important bill, and should not be and would 

not want to be there only for a small segment of that debate. And 

I think that it is improper, under the precedence of the House, to 

have the Subcommittee reconvene prior to or while H.R. 7 is still 

being debated on the floor. 

Mr. COBLE. Well, I say to my colleague from New York, I don’t 

set the schedule of the floor schedule, nor the Subcommittee schedule for hearings. So, hold me harmless for that. 

Mr. NADLER. Well, I will—Mr. Chairman, I don’t—I am not seeking to place blame at all. I imagine that the intent was to have 

H.R. 7 started today, just do the rule and do the bill tomorrow, and 

have the Agriculture bill, but the AG bill came up. But, that is, 

nonetheless, where we stand now. And it is, I think, an imposition 

on the duties of the Members of this Subcommittee who have to 

participate in the debate on H.R. 7 to try to be in two places at 

once. And I think it wrong and an adjustment ought to be made 

in the schedule of the Subcommittee now, since we cannot control 

the schedule of the House. 

Mr. GOODLATTE. Mr. Chairman? 

Mr. COBLE. Mr. Goodlatte? 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Well, first of all, the Committee ordinarily tries to avoid conflicting activities. We did not plan this hearing intending to have 

a conflict on the floor. We only learned of exact floor timing, for 

H.R. 7, yesterday. Many of our witnesses have come from out of 

town. We need to make every effort to complete this important 

hearing. And this is a very important hearing, one of the most important hearings we will hold on copyright law. And we have the 

State of the Union Address coming up rapidly later on. So, we have 

to take the time to get this done. We certainly should recess the 

Subcommittee during the time that the Judiciary Committee will 

be managing the bill on the floor. 

But, our Committee rules state that the Subcommittee should 

plan hearings with a view toward avoiding simultaneous scheduling of full Committee and Subcommittee meetings or hearings 

whenever possible. We scheduled this hearing. We were not aware 

of a potential conflict with floor activities. Nonetheless, the rule 

does not prevent us from moving forward today. 

And H.R. 7, the bill on the floor, while it is an important bill and 

we have paid close attention to it in this Committee, is not primarily the jurisdiction of the Judiciary Committee. The Subcommittee will, in my opinion, be best served by moving ahead ex-
5 

peditiously with our witnesses and our questioning of the witnesses 

and then recessing at the time that our portion of the debate is in 

close proximity to beginning, allowing enough time for Members to 

get over there for when it does begin. 

And I thank the Chairman and yield back. 

Mr. COBLE. I thank the gentleman—— 

Mr. CONYERS. Mr. Chairman? 

Mr. COBLE. The gentleman from Michigan? 

Mr. CONYERS. May I add to this discussion? First of all, I want 

to commend Jerry Nadler for initiating this discussion. I think that 

this conflict of an important bill coming out of Judiciary, being on 

the floor and we being overlapped with important hearings and distinguished witnesses at the same time, that this should serve as 

an example for all of us that this should not happen again under 

any circumstances for the remainder of the 113th Congress. 

Mr. COBLE. Well, I thank the gentleman. 

After having said all of that, I think we need to move along because we have out-of-state witnesses here. And as I say, I don’t 

want to keep you all here until the last dog is hanged tonight. 

So, we traditionally swear in our witnesses. 

[Witnesses sworn.] 

Mr. COBLE. And I now am pleased to recognize our witnesses. 

Our first witness today, Mr. Peter Jaszi, Professor of Law at 

American University of Washington’s College of Law and Faculty 

Director of the Glushko-Samuelson Intellectual Property Clinic. 

Professor Jaszi teaches domestic and international copyright law as 

well as Law in Literature. Professor Jaszi received both his J.D. 

and his A.B. degrees from Harvard University. 

Our second witness is Ms. June Besek. Correct pronunciation, 

Ms. Besek? 

Ms. BESEK. Besek. 

Mr. COBLE. Lecturer in law at Columbia School of Law and Executive Director of the Kernochan Center for Law, Media, and the 

Arts. In her position she oversees studies on national and international intellectual property issues. Professor Besek received her 

J.D. from New York University and her B.A. from Yale University. 

Ms. Novik, our third witness is author and cofounder of the Organization of Transformative Works. Ms. Novik is best known for 

her fantasy and alternative history series of novels. She received 

her Master’s in Computer Science from Columbia University and 

B.S. in English Literature from Brown University. 

Our fourth witness, Mr. David Lowery is a singer and songwriter 

and lecturer at the Terry College of Business at the University of 

Georgia. As a guitarist, vocalist, and songwriter, Mr. Lowery founded the alternative rock band Camper Van Beethoven and cofounded 

the rock band Cracker. He received his B.A. in mathematics from 

the University of California, Santa Cruz. 

Our final witness is Mr. Kurt Wimmer, General Counsel for the 

Newspaper Association of America, a nonprofit organization representing publishers of more than 2,000 newspapers in the United 

States and Canada. Mr. Wimmer received his degree—his law degree and Master’s degree from Syracuse University and his Bachelor’s from Missouri School of Journalism. 
6 

We welcome you all. And, in view of the time restraints, we 

would appreciate your confining your statements, if you can, in or 

about 5 minutes. There is a panel on the table that will reflect 

green, amber, and red. When the red light appears, the ice upon 

which you are skating will become thinner and thinner. [Laughter.] 

You won’t be keelhauled, but you—we will ask you to—and we 

try to comply with the 5-minute rule as well. 

So, if—we will start, Professor, with you. You will be our first 

witness. 

Mr. JASZI. Thank you, Mr. Chairman. And thanks to the Members of the Committee—— 

Mr. COBLE. Mike. 

Mr. JASZI [continuing]. For this invitation. 

Mr. COBLE. Thank you, John, for your comments. 

Mr. CONYERS. No, thank you, sir. 

TESTIMONY OF PETER JASZI, PROFESSOR, FACULTY DIRECTOR, GLUSHKO-SAMUELSON INTELLECTUAL PROPERTY 

CLINIC, WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY 

Mr. JASZI. Thank you, Mr. Chairman. And thanks to the Members of the Committee for this invitation. 

The fair use doctrine helps guarantee the continued international 

permanency of the United States as a site of innovation. After a 

rocky start, the courts now are doing an excellent job of implementing the legislative direction contained in section 107, which, 

itself, restated more than a century of case law. Fair use doesn’t 

need reform, but it could use legislative support. For example, Congress could exempt noncommercial creators of derivative works 

from potentially onerous statutory damages, which today chill the 

exercise of fair use. Congress could further enable fair use by 

amending section 301, which deals with Federal preemption of 

state law to bar some or all contractual waivers of the fair use 

right. 

In my written testimony, I tried to describe the current unified 

field theory of fair use that informs decisions from every part and 

at every level of the Federal court system today. As already noted, 

that unified field theory is keyed to the notion that uses that advance transformative ends, those that repurpose and add value to 

copyrighted material they employ, deserve special consideration. 

Yesterday, a Second Circuit Court of Appeals panel provided an 

illustration. The Bloomberg Professional Service had posted the recording of a conference call between executives of the Swatch 

Group and hundreds of registered financial advisors on its site, and 

Swatch had complained. In finding fair use, the court noted that, 

‘‘In the context of news reporting and analogous activities, the need 

to convey information to the public accurately may, in some instance, make it desirable and consonant with copyright law for a 

defendant to faithfully reproduce an original work. In such cases,’’ 

the court continued, ‘‘courts find transformation by emphasizing 

the altered purpose or context.’’ The court also made it clear that 

Bloomberg’s use of the entire recording was reasonable, in light of 

its purpose of disseminating important financial information to 

American investors and analysts. The point, again, and I want to 
7 

stress this, was that Bloomberg was serving the collective public 

interest in access to information, without working great harm to 

any competing private interest. 

It is not surprising to see fair use at work in the journalism sector given that the Supreme Court has stressed the intimate connection between the fair use doctrine and the First Amendment. More 

broadly, however, we have seen, over the past 20 years, how the 

fair use doctrine is experienced as an important positive right by 

readers and publishers, movie producers and remix artists, tech incumbents and startups, teachers, developers of educational materials, artists, scholars, librarians, providers of disability services, 

filmmakers, and other contributors to the kind of progress that our 

IP laws serve. Of course, not every person in every sector likes 

every fair use decision. But, we have all benefited, collectively, 

from this general, pro-innovation trend in our copyright law. 

The pattern of decisions, of which this Bloomberg case is the 

most recent example, articulate no a priori limits on the range of 

situations to which the doctrine is potentially applicable. They 

don’t limit it to situations involving the creation of new copyrightable works or anything of the kind. And, given the ultimate goal 

of copyright, which isn’t to favor any particular form of expression 

over others, but to promote the production and dissemination of 

useful knowledge, there is no apparent practical, non-ideological 

reason why such limitations would be desirable. At the very least, 

those who would now seek to rein in the future development of the 

fair use doctrine, have a heavy burden of persuasion to demonstrate why doing so would be in the public interest. 

We value fair use for its flexibility and dynamism, which allow 

courts to adapt the doctrine to new social, economic, and especially 

technological circumstances. This isn’t to denigrate the value of 

static specific exceptions in copyright law, like sections 108 for libraries or 110 for education or 121 for the print disabled. Where 

these apply, they are valuable, highly valuable, to particular 

groups of users, because they provide high levels of certainty. They 

are, in effect, safe harbors even though never comprehensive and 

often not up to date. As Congress and the courts have recognized 

repeatedly, these provisions do not supplant fair use, rather they 

are supplemented by it. 

As Mr. Coble noted, one common critique of fair use is that its 

commendable flexibility gives rise to unacceptable levels of uncertainty. In fact, however, recent scholarship tends to show that fair 

use jurisprudence is both patterned and predictable. Lawyers and 

their clients actually have relatively little real difficulty forecasting 

likely fair use outcomes in areas where there are direct or even 

analogous precedents. Also contributing something to the predictability of fair use is the work of professional organizations that are 

developing fair use best practices, documents to guide their constituents in exercising their fair use rights responsibly and constructively, a tendency to which Mr. Conyers referred earlier. 

Finally though, the greatest credit for the healthy state of fair 

use law belongs to users large and small who invest time and 

thought in making sound fair use decisions, thus helping to assure 

the condition of cultural flourishing, which is the constitutional objective of copyright in the United States. I should add, then, that 
8 

1Department of Commerce Internet Policy Task Force, ‘‘Copyright Policy, Creativity, and Innovation in the Digital Economy’’ (July 2013), available at http://www.uspto.gov/news/publications/copyrightgreenpaper.pdf. 2Sony Corp. Of Amer. v. Universal City Studios, Inc., 464 U.S. 417 (1984). 3Today I’ll draw a veil across this unfortunate historical episode, which is happily and firmly 

behind us; I’ve written about it elsewhere should anyone be interested, in ‘‘Getting to Best Practices: A Personal Journey Around Fair Use,’’ 57 J. OF THE COPYRIGHT SOC’Y OF THE U.S.A. 315 

(2010). 

we at American University have been very pleased and proud to be 

involved, to some extent, in the work of developing fair use best 

practices. And have, over the last decade, been able to collaborate 

with a wide range of different professional organizations beginning 

with documentary filmmakers—— 

Mr. COBLE. Pardon? 

VOICE. Are you going to—— 

Mr. COBLE. Yes. 

Mr. JASZI [continuing]. Moving over the decade through a number of different areas of practice to a present day when we are 

working with the College Art Association on developing a comprehensive code of best practices—— 

Mr. COBLE. Professor—— 

Mr. JASZI [continuing]. For future use—— 

Mr. COBLE [continuing]. Your time is expired. 

Mr. JASZI [continuing]. For instance in visual arts. 

Mr. COBLE. Your time is expired. 

Mr. JASZI. Thank you. 

[The prepared statement of Mr. Jaszi follows:] 

Prepared Statement of Peter Jaszi, Professor, Faculty Director, GlushkoSamuelson Intellectual Property Clinic, Washington College of Law, 

American University 

I teach copyright law at the American University law school here in DC. For last 

decade or so, most of my work as a scholar, an activist and (occasionally) a litigator 

has focused on the fair use doctrine, which provides that under certain conditions, 

unlicensed uses of copyrighted material should be considered non-infringing because 

they contribute significantly to cultural progress and innovation in the information 

economy—a doctrine that the recent Commerce Department copyright Green Paper 

referred to as ‘‘a fundamental linchpin of the U.S. copyright system.’’ 1

Over this period, I’ve come to the conclusion that fair use is definitely alive and 

well in U.S. copyright law, and that, after a rocky start, the courts are doing an 

excellent job implementing the congressional direction contained in Sec. 107. Fair 

use doesn’t need legislative ‘‘reform,’’ but (as I’ll explain) it might benefit from certain kinds of legislative support in years to come—especially relief from the operation of other statutory provisions (such as the current law of statutory damages) 

that have the unintended consequence of discouraging its legitimate exercise. 

At the outset, I should mention that whatever else can be said about it, my preoccupation with fair use and its benefits has an honorable pedigree. Like many 

copyright lawyers of my generation, I was introduced to the doctrine at a time when 

it did not loom as large as it does today—perhaps because copyright wasn’t such 

a strong presence in our individual and collective cultural lives. Nonetheless, Professor Benjamin Kaplan, from whom I learned the basics of the subject in the early 

1970’s, was prescient about the importance of fair use—as he was about so much 

to do with the future of copyright and its coming engagement with new technology. 

Later in that decade it was Professor L. Ray Patterson who caught or attention by 

pointing out how much more important user-friendly copyright doctrines like fair 

use were likely to become in the aftermath of the Copyright Act of 1976. 

It’s been 40 years, more or less, since I first spoke in public about fair use doctrine. In 1983, just prior to the Betamax decision,2 the doctrine (which traces its origins in our courts back to 1841) wasn’t in particular good shape. After its codification in 1978, a bad decade or so of false starts in judicial interpretation had ensued.3 In the midst of it I took the unconventional step—more out of naivete ́ than 
9 

4 17 U.S.C. § 108(f)[4] (‘‘Nothing in this section . . . in any way affects the right of fair 

use. . . .’’) 5 Eldred v. Ashcroft, 537 U.S. 186, 219 (U.S. 2003) 6 ‘‘Toward a Fair Use Standard,’’ 103 HARV. L. REV. 1105. 7 Campbell v. Acuff-Rose Music, 510 U.S. 569, 579 (1994), quoting Folsom v. Marsh, 9 F. Cas. 

342, 348 (C.C.D. Mass. 1841) (this being the decision by Justice Story that launched fair use 

in the courts). 8 ‘‘Making Sense of Fair Use,’’ 15 LEWIS & CLARK L. REV. 715 (2011). 

as a matter conscious choice—and referred to fair use as a ‘‘right,’’ I was promptly 

taken to task by my more experienced co-panelists. 

Today, in a very different legal environment, I’d like to make four points about 

fair use, of which first is that the proposition that citizen’s ability to make some 

socially and economically positive uses of copyrighted material without permission 

is a right, and now widely recognized as such—including acknowledgements by both 

the Congress 4 and the Supreme Court, which has stressed the connection between 

fair use and the freedom of expression secured by the First Amendment: 

Copyright contains built-in First Amendment accommodations . . . [T]he 

‘‘fair use’’ defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.5

In a procedural setting, fair use typically is invoked (like other rights) as a affirmative defense, but in daily life, it’s experienced as a important positive right by readers and publishers, movie companies and remix artists, tech giants, start-up 

innovators, teachers, developers of educational materials, artists, scholars, librarians, filmmakers and a long list of other contributors to the condition of ‘‘cultural 

flourishing’’ that our copyright system exists to support. 

My second point grows directly from this one. Today, fair use is working! For 

this we have two groups to thank—the federal courts and the ‘‘user community’’ 

(which means, of course, just about all of us, from time to time and situation to situation). The courts, with a big push from Judge Pierre Leval’s classic law review article of 1990,6 managed to extricate the doctrine from the morass into which it had 

sunk in the 80’s, and set it on a new course—the critical lever here being (of course) 

the notion that certain cases of productive unlicensed use, should be deemed fair 

and noninfringing because of their transformative purposes—a determination that, 

once made, cascades through the other statutory factors defined in Sec. 107. 

A word more may be in order here about the ‘‘new’’ jurisprudence of fair use and 

its implications. It arose, at least in part, as a result of two critical insights. The 

first was that, while many of the most characteristic forms of fair use in our daily 

cultural life (as acknowledged in the preamble to the statutory section) were private 

and/or non-commercial, most of the value-added uses that had been recognized as 

fair in decided cases were both public and commercial—and that would continue to 

come before the courts. The other insight was that, at least in potential, any use 

of a copyrighted work can be licensed (and that, with new technology, more or less 

frictionless licensing was an ever more real possibility). So if the fourth fair use factor—harm to an actual or potential market—were to continue to dominate judicial 

analysis, the right often would lose out, and the public would go without the benefit 

of the innovation that was foregone or suppressed, whether a hard-hitting new documentary or a refinement of Internet search technology. 

The effect of the new jurisprudence of fair use has been to decenter the fourth 

fair use factor and to install in a central position the first factor inquiry into the 

purpose of the use, with an emphasis on whether the use can be considered a 

‘‘transformative’’ one—that is, one that, as the Supreme Court put it in 1994, whether a use ‘‘merely ‘supersede[s] the objects’’ of the original . . . or instead 

adds something new, with a further purpose or different character, altering the 

first with new expression, meaning, or message[.]’’ 7 We’ve now had more than two 

decades of experience with this approach, and—as University of California–Los Angeles Professor Neal Netanel has noted—the courts have arrived at a point where 

the standard fair use analysis, which incorporates by reference all the considerations highlighted in the statute, has effectively been reduced to a two-stage inquiry: Does the use have a transformative purpose, and is the amount of copyright 

material used appropriate to that purpose? 8 This development makes the doctrine 

more widely available and (as I’ll discuss below) easier to predict. 

Recently, judicial decisions also reminded us that there may be more to the interpretation of the public-facing fair use doctrine than the four enumerated statutory 

factors, which by the terms of the stature clearly were not intended to exhaust the 

range of considerations that a court could take into account in making its deter-
10 

9 Authors Guild, Inc. v. Google Inc., 2013 U.S. Dist. LEXIS 162198 (S.D.N.Y. 2013), at *10– 

14 & 27–29 (‘‘In my view, Google Books provides significant public benefits’’). 10Thus, for example, what is arguably the most significant single fair use decision after 

Campbell, Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. N.Y. 2006), 

was the direct outcome of arguments present by a commercial publisher. 11 As evidenced by responses to the decision in Cariou v. Prince, 714 F.3d 694 (2d Cir. N.Y. 

2013). 12 A eloquent example—Georgetown Law School Professor Rebecca Tushnet’s 2013 submission 

to the Commerce Department copyright task force—is to be found at www.ntia.doc.gov/files/ntia/ 

organization_for_transformative_works_comments.pdf. 13 Beebe, Barton Beebe, An Empirical Study of United States Copyright Fair Use Opinions, 

1978- 2005, 156 U. PA. L. REV. 549, 574–5 (2008); Matthew Sag, Predicting Fair Use, 73 OHIO

ST. L.J. 47 (2012). 

14Michael J. Madison, A Pattern-Oriented Approach to Fair Use, 45 WM. & MARY L. REV. 1525 

(2004); Pamela Samuelson, Unbundling Fair Uses, 77 FORDHAM L. REV. 2537 (2009). 

mination. Thus, for example, in his recent decision in the Google Books case, Judge 

Denny Chin make clear reference to the ‘‘public interest’’ that would be served by 

allowing this digitization project to go forward under the rubric of fair use—as an 

independent consideration supporting the conclusion of his transformativenessbased analysis of the four factors.9

But no amount of forward looking judicial interpretation of the doctrine would 

have been enough had the constituent parts of what we describe with the ungainly 

designation of the ‘‘user community’’ not been willing to step up and make their own 

contribution to develop fair use by employing it and—where necessary—defending 

its exercise. Many groups deserve credit here: on the one hand, of course, libraries 

and tech startups, but also their occasional sparring partners commercial publishers 

and entertainment companies. All have made investments in ‘‘growing’’ the fair use 

doctrine, and those investments have paid off. 10

Fair use, one might say, is like a muscle—it will grow in strength if it is exercised, and atrophy if it is not. But, by the same token, fair use is hardly unusual 

or exotic today. Everyone who makes culture or participates in the innovation economy relies on fair use routinely—whether they recognize it or not. Participants in 

the U.S. entertainment and information industries have well-established standards 

and norms relating to fair use; some, like book publishers, have long been accustomed to relying on the doctrine explicitly, both in and out of court, while others, 

like journalism, would not necessarily recognize their time-honored practices of unlicensed quotation from source material as falling under that legal designation. Something similar can be observed in the arts: for example, while there is a lively argument about the outer limits on ‘‘appropriation art’’ practices that should be sanctioned under fair use,11 most working artists will acknowledge that they rely extensively on their ability to quote the work of others in less flamboyant ways. What’s 

notable about the current situation is that more and more business and practice 

communities are actively acknowledging the ways in which their contributions to 

our collective cultural and economic life depend on the ability to exercise the right 

of fair use in appropriate circumstances.12

Which brings me to my third point. As recently as a decade ago, critics of fair 

use on the left and the right were calling attention to what they described as its 

‘‘vagueness’’ and unpredictability. Today, even those critics have come to recognize 

the desirable flexibility of an open-ended fair use doctrine, but this grudging acknowledgement has linked to continuing expressions of doubt about the doctrine’s 

uncertainty of application. The current state of the law is proving those critics 

wrong. Although, like any other legal doctrine, the application of fair use may sometimes be uncertain in true cases of first impression, lawyers (and their clients) have 

little real difficulty forecasting likely outcomes in areas where there are direct or 

analogous precedents. 

Scholars have demonstrated that fair use law is in fact more patterned, more 

predicable, and hence more reliable than the critics have claimed. Recently, New 

York University Professor Barton Beebe and Loyola University of Chicago Professor 

Matthew Sag, have employed rigorous empirical methodologies to arrive at this conclusion 13 Two other comprehensive studies of the fair use doctrine in the United 

States, which emphasize its internal consistency and predictability, also deserve 

special mention—one by University of Pittsburgh Professor Michael Madison and 

another by University Of California, Berkeley, Professor Pamela Samuelson.14 Samuelson, one of the most respected figures in United States Copyright law, surveyed 

the entire landscape of fair use case law and grouped the decisions into ‘policy relevant clusters’. She concluded that ‘‘once one recognizes that fair use cases tend to 
11 

15 Id. at 2541. 16Patricia Aufderheide and Peter Jaszi, RECLAIMING FAIR USE: HOW TO PUT BALANCE BACK

IN COPYRIGHT (2011) 17 Authors Guild v. HathiTrust and Authors Guild, Inc. v. Google Inc., 2013 U.S. Dist. LEXIS 

162198 (S.D.N.Y. 2013). 

fall into common patterns’’, the ‘‘fair use is both more coherent and more predictable 

than many commentators have perceived’’.15

Also contributing to the predictability of fair use are groups like the team I’ve 

helped to organize at American University, in collaboration with Prof. Patricia 

Aufderheide, have been helping groups of practitioners to develop fair use Best 

Practices documents to guide their constituents in exercising their fair use rights 

responsibly and constructively.16 And –most important of all—users, large and 

small, have been investing time in making sound fair use decisions, and resources 

in carrying them through to successful conclusion. 

Here I’d also stress a fourth point: Although there may be aspects of the copyright law that could benefit from modest updating to make them more appropriate 

to the new conditions of digital information exchange, fair use is not one of them. 

In fact, the last decade has seen a proliferation of decisions applying this flexible, 

purpose-based doctrine to uses in the digital domain, from the development of interoperable software products and Internet search technology, to the practice of remix 

culture, though mass digitization in the promotion of access to knowledge. Until recently, some had argued that the federal courts were developing two competing (or 

at least potentially inconsistent) cultures of transformative fair use—one in the 

Ninth Circuit, where most cases specifically involving new digital technologies had 

been litigated, and another in the Second, the long-time home of fair use decisionmaking involving more traditional forms of culture-making. But (putting aside the 

unlikely chance of significant revision on appeal), the recent decisions of Judge Harold Baer in Authors Guild v. HathiTrust and Judge Denny Chin in Authors Guild 

v. Google Books, both from the Southern District of New York,17 demonstrate otherwise by relying significantly on relevant Ninth Circuit precedents with no direct 

counterparts in the Second. In effect, in only a few short decades, the courts have 

developed a robust ‘‘unified field theory’’ of fair use which is fully capable of meeting 

the digital challenge and should be allowed to do so, just as fair use doctrine has 

been allowed, over more that 170 years, to adapt to other changes in circumstance. 

I’d add here that the adaptation of fair use to the networked information environment has been significantly enhanced by the work of Congress and the agencies. 

Many of us were concerned in 1998 that the new anti-circumvention provisions of 

the DMCA might spell the effective end of fair use in the Internet environment, but 

these concerns were met, in part, by Congress’ foresight in incorporating the Sec. 

(a)(1) triennial rulemaking into the DMCA, and the fair and conscientious manner 

in which the U.S. Copyright Office, the NTIA, and—ultimately—the Librarian of 

Congress have exercised the authority delegated under this provisions. No rulemaking can ever satisfy everyone, and those of us who have unsuccessfully proposed 

exceptions in this process would, of course, prefer that they had been granted, and 

hope that they will be in the future. That said, the procedure as it stands is unnecessarily cumbersome. and imposes considerable costs on the often poorly funded 

NGO’s who bear the primary burden of proposing and justifying exceptions. One 

modest reform would be to create a procedure through which exceptions that have 

been renewed, in substantially the same form, over a series of triennia, could be incorporated into the statutory text itself. 

I’ll conclude, if I may, with a pair of suggestions, a trio of recommendations, and 

a question for this subcommittee. 

The first suggestion is simply this: Don’t mess with fair use. After a rough start 

post-1978, the doctrine has now been recognized for the essential feature of copyright doctrine that it is, and tweaks or improvements (whether intended to broaden 

or narrow the doctrine) could have serious and adverse unintended consequences— 

discouraging exactly the kind of new creativity that copyright is supposed to promote. The doctrine works in practice, as already described, and it is also theoretically sound. 

One theoretical critique is that the new transformativeness-based jurisprudence 

of fair use is somehow in conflict with the reservation to the copyright owner, in 

Sec. 106, of an exclusive right to prepare ‘‘derivative’’ works (a category defined in 

the Act to include works in which preexisting materials are ‘‘transformed’’ through 

re-use). This argument misses the mark in two different ways. Most important, it 

fails to recognize that all the Sec. 106 exclusive rights are made specifically subject 

to exception in Sec. 107, which provides for fair use. In addition, it overlooks the 

fact that the word ‘‘transform’’ means different things in different contexts: Thus, 
12 

18See Dena Chen, Musetta Durkee, Jared Friend, and Jennifer Urban, ‘‘Updating 17 U.S.C. 

§ 512’s Notice and Takedown Procedure for Innovators’’ (Public Knowledge, 2011), available at 

http://www.publicknowledge.org/files/docs/cranoticetakedown.pdf. 19For a sense of the value that fair use (and allied doctrines) contribute to the U.S. economy, 

see Thomas Rogers and Andrew Szamosszegi, ECONOMIC CONTRIBUTION OF INDUSTRIES RELYING

ON FAIR USE, (Computer & Communications Industry Ass’n 2001). 

any slight adjustment to an existing work renders it a ‘‘derivative’’ one within the 

meaning of Sec. 101, but according the courts a ‘‘transformative purpose’’ that can 

qualify a use as fair demands far, far more in the nature of value added. 

Finally, let me suggest—in the strongest terms—that you approach with extreme 

caution any proposal to facilitate short-form, non-precedential determinations of fair 

use disputes—whether by administrative or judicial means. Fair use decisions belong in the Article III courts, and the continued development of the doctrine, over 

time, has been the result of the accrual of precedents from the federal judiciary. 

Tampering with this proven scheme could only work mischief with the functioning 

of this important doctrine. 

My recommendations are these: 

• One. Although ‘‘transformative’’ fair use is thriving in the courts, the same 

cannot be said of another branch of the same doctrine—that is, private use. 

Once we took for granted that members of society who had legitimate access 

to information products could do a wide range of things with their content, 

including uses for study, research and personal entertainment. Increasingly, 

however, this understanding is threatened in the digital environment, by contractual provisions (often included as ‘‘boilerplate’’ in terms of service offered 

to consumers on a take-it-or-leave-it basis). Congress should consider taking 

action, perhaps in the form of amendments to Sec. 301 of the Copyright Act, 

that would insure that fair use survives such attempts at contractual override. 

• Two. I mentioned earlier that, all in all, Sec. 1201(a)(1) of the Copyright Act 

has produced an imperfect compromise between the concerns of content owners who employ technological protection measures to secure their content, on 

the one hand, and legitimate users, on the other; not even that much can be 

said of the so-called notice-and-takedown provisions of Sec. 512, also introduced under the DMCA. As the provision now stands, ISP’s have every incentive to remove from their services and platforms whatever on-line content 

that has been designated, on no matter how superficial a basis, as potentially 

infringing. By contrast, the provisions of Sec. 512(g), which describe a procedure by which such content can be replaced on line at the demand of the individual or company who originally posted it, are cumbersome and largely unworkable. Clearly, Congress should consider the fact, documented in several 

studies,18 that the public at large is losing access to legitimate fair use expressions by virtue of Sec. 512—a cultural problem that deserves congressional consideration, and probably requires a legislative solution. 

• Three. By raising the apparent stakes for would-be fair users, the current 

law of statutory damages has the effect of significantly discouraging reliance 

on the doctrine by just those individuals whose cultural contributions it is designed to foster. Creative artists, independent scholars, filmmakers and others sometimes forego fair use because they do not understand or feel they 

cannot predict the application of the ‘‘innocent infringement’’ provisions of 

Sec. 504(c)(2) to their situations. I’d suggest that a more straightforward, ‘‘fair 

use-friendly’’ approach would be to bar statutory damages in all actions for 

non-willful infringement brought against non-commercial users—and to make 

clear that a good-faith belief in the fairness of a particular use negates willfulness. 

The question I’ll leave you with requires a preamble. As already noted, we know 

that in the United States the fair use doctrine adds materially to our cultural 

choices, our learning opportunities, and our access to innovation. We can only wonder (with some bemusement) why some of our most important foreign competitors, 

like the European Union, haven’t figured out that fair use is, to a great extent, the 

‘‘secret sauce’’ of U.S. cultural competitiveness.19 But that’s their loss and our gain. 

The position may be different where some of our other trading partners are concerned. In trade-based agreements that are designed, in part, to ‘‘harmonize’’ national copyright laws between the U.S. and less developed countries, limitations on 

copyright protection (and especially fair use) typically go unaddressed. These agreements often leave lingering and often crippling doubts in these countries about 
13 

whether (from the U.S. perspective) they are free to follow our example and adopt 

a flexible, dynamic approach to transformative uses in their national legislation. 

The presence of such doubts may, I suppose, work to the short-term competitive advantage of the U.S. But given the dependence of our national economy on the success of the world economy, I would ask whether this one-sided approach is really 

in our national interest—and (beyond that) whether it is ethically defensible? 

Mr. COBLE. I failed to tell you folks, when the illuminated red 

goes to illuminated yellow that is your 4-minute warning. 

But, Miss—Professor Besek, you are next. 

Ms. BESEK. Thank you, Mr. Chairman—is that on? 

Mr. COBLE. Mike. 

Ms. BESEK. This one? 

TESTIMONY OF JUNE M. BESEK, EXECUTIVE DIRECTOR, 

KERNOCHAN CENTER FOR LAW, MEDIA AND THE ARTS AND 

LECTURER-IN-LAW, COLUMBIA SCHOOL OF LAW 

Ms. BESEK. Thank you, Mr. Chairman and Members of the Committee, for giving me the opportunity to be here today. 

In early 2008, Columbia Law School sponsored a daylong symposium titled Fair Use: Incredibly Shrinking or Extraordinarily Expanding. What was apparent 6 years ago is even more obvious now. 

Fair use is extraordinarily expanding. 

Until recently, the courts held that generally it is not a fair use 

if you copy an entire work. From the point where copying an entire 

work generally defeats fair use, now copying the full contents of 

millions of works can qualify as fair use. So, why might this expansion spark concern? Fair use is an essential part of U.S. copyright 

law, but it isn’t meant to be a carte blanche to make unlimited use 

of others’ works, even for a socially beneficial cause. The rights of 

creators and the interests of users have to be balanced. 

How did the law move so far so quickly? Well, the principal reason for this expansion has been the increasing significance of transformative use in evaluating fair use. This happened since the Supreme Court’s decision in Campbell against Acuff-Rose. You may 

know that opinion; it had to do with a parody by 2 Live Crew of 

the song ‘‘Pretty Woman.’’ Now, the Sixth Circuit had said 2 Live 

Crew did not make a fair use; it had relied on an earlier case which 

said that commercial use is presumptively unfair. The Sixth Circuit 

resolved factors one and four, which are often considered to be the 

most important, on the basis of this commercial use. Its decision 

wasn’t atypical. A lot of courts had been doing that, depending on 

the commercial use and making commercial use virtually dispositive of fair use. In reversing, the Supreme Court said commercial 

uses can be fair, and that is one aspect of factor one. But, another 

important one is transformative use, and that is using a work in 

a way that adds something new, altering the other work with new 

expression, meaning, or message. 

Like Campbell itself, earlier fair use cases involved productive 

uses. And they were premised on use of the work itself, for example 

to annotate, to analyze, to create a parody. But, post-Campbell 

cases began to interpret ‘‘transformative’’ in two significantly expansive ways. 
14 

First, to encompass not only changes to the substance of a work, 

but changes to how the work is used. They referred to this 

repurposing as ‘‘functional transformation.’’ But, the second aspect, 

and more concerning, is that courts began to apply the transformative and functional transformation labels not only to new 

works that incorporate unaltered copies of earlier works, but also 

to new uses that exploit the prior work without creating a new 

work. So, transformative has been uprooted from its original context of new works to become applied to a much broader context of 

new purposes, enabling new business models rather than new 

works of authorship. 

One troubling consequence is that if a court finds the defendant’s 

use of an author’s work is transformative, because it reaches new 

markets or a new audience, that finding can usurp the author’s derivative work rights, particularly with respect to potential markets 

for the work. Because once a court has found that a transformative 

purpose exists with respect to a new use it tends, increasingly, to 

find that the new use exploits a transformative market that doesn’t 

compete with the author’s markets. Basically, authors’ rights can 

hinge on a race to the market for new and sometimes unanticipated uses. 

Now, over the years, fair use case law has sometimes strayed too 

far in one direction or the other. I mentioned earlier that courts 

had been using commercial use as, dispositive of factors one and 

four, because of the statement of Sony that commercial use is presumptively unfair. And, in Campbell, the court stepped in to try to 

restore that balance. But, now the pendulum has swung the other 

way. A finding that a use is transformative tends to sweep everything before it, reducing the statutory multifactor assessment to a 

single inquiry. It is important that the fair use pendulum once 

again be moved back toward the center. 

Despite the concerns I just voiced, fair use remains a rule whose 

application is best made by judges, as the Congress recognized 

when it first put fair use into the statute, back in the 1976 Act. 

But, as we have seen, the pendulum can swing in both directions. 

There are times when a legislative intervention may be appropriate, when that application proves too rigid or too expansive. 

I think the current judicial expansion of fair use may reflect concern to preserve the benefits of mass digitization, notwithstanding 

the tension between mass digitizing and the Copyright Act itself. 

I think, without altering the text of section 107, Congress might 

separately address the problems of mass digitization, which is 

skewing the law. If Congress turned its attention to those issues, 

it might relieve the pressure that risks turning the fair use doctrine into a free pass for new business models, and restore fair use 

to its most appropriate role of fostering new authorship. 

Thank you. 

[The prepared statement of Ms. Besek follows:] 

Prepared Statement of June M. Besek, Executive Director, Kernochan Center for Law, Media and the Arts and Lecturer-in-Law, Columbia Law 

School 

Thank you, Chairman Goodlatte, Chairman Coble, Ranking Member Conyers, and 

members of the Committee. Good afternoon, ladies and gentlemen. My name is June 

Besek. I am the Executive Director of the Kernochan Center for Law, Media and 
15 

1 Infinity Broadcasting Corp. v. Kirkwood, 150 F.3d 104, 109 (2d Cir. 1998), quoting Nimmer 

on Copyright § 13.05[A][3] at 13–178 (1997). 2See Authors Guild, Inc. v. Hathitrust, 902 F.Supp. 2d 445, 457 (S.D.N.Y. 2012), appeal pending (2d Cir.); Author’s Guild, Inc. v. Google, Inc., 2013 U.S. Dist. Lexis 162198, 2013 WL 

6017130, appeal pending (2d Cir.). 

the Arts at Columbia Law School and a Lecturer-in-Law at Columbia, where I teach 

seminars on advanced copyright and legal issues concerning individual creators— 

authors, artists and performers. I have practiced in the field of copyright since 1985, 

roughly half of that time in private practice and the other half in academia. 

I’m here today to discuss fair use, and to emphasize its rapid expansion. 

THE IMPORTANCE OF FAIR USE

Fair use is an exception to the exclusive rights the Copyright Act vests in authors. 

It excuses exploitations of a work that would otherwise be infringing. Fair use is 

an essential part of U.S. copyright law. It promotes cultural exchange and the creation of new works by facilitating activities such as education and scholarship, 

news, criticism and parody. Fair use is a critical means by which the copyright law 

fosters creative expression. 

The fair use doctrine is contained in section 107 of the Copyright Act: 

Limitations on exclusive rights: Fair use 

Notwithstanding the provisions of sections 106 and 106A, the fair use of a 

copyrighted work, including such use by reproduction in copies or 

phonorecords or by any other means specified by that section, for purposes 

such as criticism, comment, news reporting, teaching (including multiple 

copies for classroom use), scholarship, or research, is not an infringement 

of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include——— 

(1) the purpose and character of the use, including whether such use is of 

a commercial nature or is for nonprofit educational purposes; 

(2) the nature of the copyrighted work; 

(3) the amount and substantiality of the portion used in relation to the 

copyrighted work as a whole; and 

(4) the effect of the use upon the potential market for or value of the copyrighted work. 

The fact that a work is unpublished shall not itself bar a finding of fair use 

if such finding is made upon consideration of all the above factors. 

In broad brush, the fair use factors look to the purpose for which the copyrighted 

work was used; the type of work it is; how much was taken; and how the new use 

could affect the actual or potential market for the copyrighted work. 

FAIR USE: EXTRAORDINARILY EXPANDING

In early 2008 Columbia Law School sponsored a day-long symposium titled Fair 

Use: ‘‘Incredibly Shrinking’’ or Extraordinarily Expanding? What was apparent six 

years ago is even more obvious now: Fair use is extraordinarily expanding. 

Until recently, the courts held that ‘‘[t]hough not an absolute rule, ‘generally, it 

may not constitute a fair use if the entire work is reproduced.’’’ 1 From the point 

where copying an entire work generally defeats fair use, now copying the full contents of millions of works can qualify as fair use, regardless of whether it’s done 

for commercial or noncommercial purposes.2

If fair use provides the important benefits described earlier, why might this expansion spark concern? Fair use is not a carte blanche to make unlimited use of 

others’ work, even for a socially beneficial cause. The rights of creators and the interests of users must be balanced. As the Supreme Court stated in Harper & Row 

v. Nation Enterprises, reversing the Second Circuit’s holding that Nation magazine 

was protected by fair use when it used pre-publication excerpts of President Ford’s 

memoirs without authorization: 

[C]opyright is intended to increase and not to impede the harvest of knowledge. But we believe the Second Circuit gave insufficient deference to the 

scheme established by the Copyright Act for fostering the original works 

that provide the seed and substance of this harvest. The rights conferred 
16 

3 Harper & Row, Publrs. v. Nation Enters., 471 U.S.539, 545–46 (1985) (citation omitted). 

4 Id. at 555 (citation omitted). 5 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (‘‘[T]he more transformative the 

new work, the less will be the significance of other factors, like commercialism, that may weigh 

against a finding of fair use.’’). 6 Campbell was 2 Live Crew’s lead vocalist and the first named defendant. 

7Sony Corp. of America v Universal City Studios, 464 U.S. 417, 451 (1984). 

8 Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429, 1436–37 (6th Cir. 1992) rev’d, 510 U.S. 

569 (1994) 

(citing Rogers v. Koons, 960 F.2d 301, 312 (2d Cir. 1992)). 9 Id. at 1438–39. 10Transformative use is not essential to fair use; as the Campbell court observed, making 

complete copies, such as multiple copies for classroom use, can be fair use. 510 U.S. 569, 579 

n. 11 and § 107. 11 Campbell, 510 US at 579 (citing Leval, Towards a Fair Use Standard, 103 HARVARD L. REV. 

1105, 1111 (1990)). 12Leval, supra note 11 at 1111. 13 Campbell, 510 U.S. at 579 (emphasis supplied). 

by copyright are designed to assure contributors to the store of knowledge 

a fair return for their labors.3

The Court went on to warn that 

It is fundamentally at odds with the scheme of copyright to accord lesser 

rights in those works that are of greatest importance to the public. Such 

a notion ignores the major premise of copyright and injures author and 

public alike. . . . [A]s one commentator has noted: ‘‘If every volume that 

was in the public interest could be pirated away by a competing publisher, . . . the public [soon] would have nothing worth reading.’’ 4

THE RISE OF TRANSFORMATIVE USE

How did the law move so far so quickly? The principal reason for this expansion 

has been the increasing significance of ‘‘transformative use’’ in evaluating a fair use 

defense. The term ‘‘transformative use’’ is nowhere found in the fair use statute. It 

is not an entirely new concept, however: ‘‘productive use’’—in the sense of producing 

new and independent creative works—has long been part of the fair use determination. In Campbell v. Acuff-Rose,5 the Supreme Court embraced ‘‘transformative use’’ 

as a highly influential (though not determinative) factor in assessing fair use. 

Campbell v. Acuff-Rose involved a parody by 2 Live Crew of Roy Orbison’s song, 

‘‘Pretty Woman.’’ Campbell asserted a fair use defense. 6 The district court found 

in Campbell’s favor, but the Sixth Circuit Court of Appeals reversed and held that 

fair use did not apply. Relying on the Supreme Court’s statement in Sony v. Universal City Studios that ‘‘commercial use is presumptively an unfair exploitation’’ of 

the copyright owner’s rights,7 the Sixth Circuit resolved the first factor—the purpose and character of the use—in plaintiff’s favor, because 2 Live Crew’s parody was 

commercial. 8 On the fourth factor, often said to be the most important, the court 

stated that because 2 Live Crew’s parody was entirely commercial, it ‘‘presume[d] 

that a likelihood of future harm to Acuff-Rose exists.’’ 9 The Sixth Circuit’s decision 

was typical of many post-Sony courts, which had made commercial use virtually dispositive of factors one and four. As a result, it had become very difficult to make 

a commercial fair use, so the Supreme Court intervened. 

The Supreme Court reversed the Sixth Circuit’s decision. It criticized the appellate court for letting the commercial nature of the use so heavily influence its fair 

use determination. The Court explained that commercial use is not dispositive of 

fair use, and commercial uses can be fair. But commerciality is only one aspect of 

factor one; whether a use is ‘‘transformative’’ is a very important consideration.10

To determine whether a use is transformative, one looks at whether ‘‘the allegedly 

infringing work ‘‘merely supersede[s]’’ the original work ‘‘or instead add[s] something new, with a further purpose or a different character, altering the first with 

new expression, meaning or message.’’ 11 As Judge Pierre Leval explained in an article on which Campbell relied, ‘‘[i]f . . . the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of 

new information, new aesthetics, new insights and understandings—this is the very 

type of activity that the fair use doctrine tends to protect for the enrichment of society.’’ 12

The Supreme Court also emphasized that all four fair use factors must be analyzed independently—there are no shortcuts. Still, it observed that ‘‘the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.’’ 13 As this quotation illus-
17 

14 Id. 15The Supreme Court’s decision in Sony v. Universal City Studios—the ‘‘Betamax case’’—was 

a notable exception. There the Court concluded that in-home copying of free broadcast programming for timeshifting purposes was a fair use, because it was noncommercial and merely allowed consumers to watch at a different time programs they were invited to view without 

charge. Sony v. Universal City Studios, 464 U.S. 417. Sony also dubbed any commercial use 

‘‘presumptively unfair’’—a position from which the Supreme Court later retreated. 16 Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609 (2d Cir. 2006). 17Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). 18 Id. at 1165 (citation omitted). 

trates, it bears emphasis that the Supreme Court embraced the inquiry into ‘‘transformative use’’ in the context of a second author’s creation of a ‘‘new work.’’ 

‘‘FUNCTIONAL TRANSFORMATION’’ AND MAKING COMPLETE COPIES

Prior to Campbell, fair use cases involving transformative (or productive) use were 

premised on changes made to the subject work itself: annotating a work, analyzing 

or critiquing it, creating a parody, and so on. Campbell itself involved a parody of 

‘‘Pretty Woman,’’ achieved through changes to both lyrics and music. Moreover, even 

where a second author transforms the copied material, the amount of the copying 

remains an important consideration. In Campbell, the Supreme Court, although it 

stressed the ‘‘transformativeness’’ of the 2 Live Crew parody, ultimately remanded 

to the Sixth Circuit to determine whether the resulting work copied too much—that 

is, more than was needed to achieve its parodistic purpose. 

As explained above, the Supreme Court defined transformative use as use of a 

copyrighted work for ‘‘a further purpose or different character, altering the first with 

new expression, meaning or message.’’ 14 Post-Campbell cases began to interpret 

‘‘transformative’’ in two significantly expansive ways. First, to encompass not only 

changes to the substance of a work, but also changes to how the work is used, referring to this repurposing in a new work as ‘‘functional transformation.’’ Second, and 

more radically, courts began to apply the ‘‘transformative’’ and ‘‘functional transformation’’ labels not only to new works incorporating unaltered copies of preexisting works, but also to new uses that exploited the prior work without creating 

a new work. ‘‘Transformative’’ thus became uprooted from its original context of 

‘‘new works’’ to become applied to a much broader context of ‘‘new purposes.’’ 

This expansive view of what it means to be transformative has opened the door 

to claims that making complete copies of multiple works, even for commercial purposes, and even without creating a new work, can be a fair use. This is a substantial 

departure from the long-prevailing view that copying an entire work is generally not 

a fair use.15 It also implies an important constriction of the author’s rights respecting ‘‘potential market[s]’’ for her work, because, once a court has found a ‘‘transformative purpose’’ to a new exploitation, it tends increasingly to find that the new 

use exploits a ‘‘transformative market’’ that does not compete with the author’s markets. In other words, contrary both to statutory text and to the Supreme Court’s 

cautious reminder in Campbell, a finding that a use is ‘‘transformative’’ now tends 

to sweep all before it, reducing the statutory multifactor assessment to a single inquiry. 

How did we get here? For example, in Bill Graham Archives v. Dorling Kindersley 

Ltd., the court found defendant’s use of complete copies of Grateful Dead concert 

posters to be a fair use because the copies were used, in reduced size, as part of 

a historical timeline in a group biography of the Grateful Dead, rather than for their 

original purpose. The court stated that ‘‘[a] transformative use may be one that actually changes the original work. However, a transformative use can also be one 

that serves an entirely different purpose.’’ 16 The Grateful Dead poster case, however, still concerned a new and independent work (indeed, of a kind that has traditionally come within the ambit of fair use): a biography. 

The more radical shift came in Perfect 10 v. Amazon.com. 17 There, the Ninth Circuit Court of Appeals concluded that making complete copies of Perfect 10’s copyrighted photos, and providing ‘‘thumbnail’’ reproductions to consumers in response 

to image search requests was a fair use. According to the court, ‘‘even making an 

exact copy of a work may be transformative so long as the copy serves a different 

function than the original work.’’ 18 The court viewed defendants’ use as ‘‘highly 

transformative’’ because their search engine served an ‘‘indexing’’ purpose which improved access to information on the Internet, entirely different from the photo-
18 

19 Id. at 1165–66. Some of the distinctions that courts use to support ‘‘functional transformation’’ are simply untenable. For example, in American Inst. of Physics v. Schwegman 

Lundberg & Woessner, P.A., 2013 U.S. Dist. Lexis 124578 (D. Minn. July 30, 2013), the court 

found defendant law firm’s internal use of scientific articles (reading them to determine whether 

they represent ‘‘prior art’’ required to be supplied to the USPTO with a patent application) was 

intrinsically different from the plaintiff’s purpose in publishing them (informing interested readers about developments in various scientific disciplines). In both cases the articles were read 

for information about scientific developments; there is no transformative purpose here. 20 Author’s Guild, Inc. v. Google, Inc., 2013 U.S. Dist. Lexis 162198, 2013 WL 6017130, appeal 

pending (2d Cir.). 21 Authors Guild, Inc. v. Hathitrust, 902 F.Supp. 2d 445, 457 (S.D.N.Y. 2012), appeal pending 

(2d Cir). Hathitrust was filed after Authors Guild v. Google, but it was decided first. 

graphs’ aesthetic purpose, and because of the considerable public benefit the search 

engine conferred.19

Two recent ‘‘functional transformation’’ cases involve mass digitization of books 

from research libraries. Authors Guild v. Google 20 was a challenge to the mass 

digitization project initiated by Google, which contracted with research libraries to 

digitize their entire collections of published books. Google would provide each library 

with a full text digital version of the books in their collection. It would also retain 

copies of the full text database to enable it to allow customers to search Google’s 

database to identify books of interest. A user’s search would not retrieve a full-text 

version of a book unless it were in the public domain, but it would provide 

‘‘snippets’’ of books in response to search requests, and information as to how one 

might get access to particular books. Google also uses its full text database to improve its translation capabilities and enhance its search capabilities, from which it 

derives revenue. Unlike the libraries, who purchased the books, Google did not pay 

the authors or publishers for its creation of full-text permanent retention copies. 

The Authors Guild and publishers filed suit for copyright infringement against 

Google. Some time after the suit commenced, the parties entered into a class action 

settlement agreement, which the court declined to approve. The publishers subsequently entered into a separate settlement agreement with Google and dropped out 

of the suit. 

In November 2013, the district court entered judgment in favor of Google on its 

fair use defense. The court found Google’s use was ‘‘highly transformative’’ because 

Google had converted the books’ text into digital form and created a valuable word 

index. It had also transformed the text into data that enabled new forms of research, like data-mining. Google’s profit motive was accorded little weight in the decision, especially in light of the important educational purposes served by its project. 

The court found that Google’s activities had little likely effect on the authors’ actual 

or potential markets for their works. The court did not consider the market impact 

that could ensue were other for-profit enterprises to follow Google’s lead in mass 

digitizing library collections. The Authors Guild has appealed the case. 

Authors Guild v. Hathitrust 21 was the second case addressing massive databases 

of digitized books. Hathitrust is a nonprofit entity housed at the University of 

Michigan. It manages a large shared digital repository of millions of books that were 

scanned for Hathitrust’s constituent libraries as part of Google’s Library project. 

The repository is used for searches by library patrons (those search results yield information but no excerpts of text), preservation, and to provide full text of books 

in the libraries to persons who are visually impaired. In a suit brought by the Authors Guild against Hathitrust, the court concluded that Hathitrust’s use was a fair 

use. It considered the use transformative since Hathitrust and the libraries were 

using the works for a different purpose than the originals—providing a searchable 

index that enabled locating books, data mining, and providing access for the printdisabled. The court found factor two ‘‘not dispositive’’ and concluded that the 

amount copied was reasonable in relation to the transformative purpose. The court 

decided that there was likely to be little impact on the market for plaintiffs’ works 

since the plaintiffs were unlikely to set up a licensing system for this type of use. 

An appeal to the Second Circuit is pending. 

POTENTIAL CONSEQUENCES OF ‘‘FUNCTIONAL TRANSFORMATION’’ 

The ascendency of transformative use, and in particular, ‘‘functional transformation,’’ gives rise to concern that the fair use pendulum has now swung too far 

away from its roots and purpose, now enabling new business models rather than 

new works of authorship, and potentially placing the U.S. in violation of international restrictions on the scope of copyright exceptions and limitations. Lower 

courts applying ‘‘transformative use’’ analysis appear at times to be ignoring the Supreme Court’s warning to consider the impact on copyrighted works were the challenged use to become widespread. Similarly, their analyses of ‘‘transformative mar-
19 

22 Campbell, 510 U.S. at 590 (quoting Nimmer on Copyright, § 13.05 [A][4], at 13–102.61). 23Sony, 464 U.S. 417, 451. The Supreme Court placed the burden of this showing on plaintiffs 

when the challenged use is noncommercial: since fair use is an affirmative defense, the burden 

respecting harm remains with defendants whose use is commercial. 24 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). 25 Id. at 1017. 

kets’’ that fall outside the author’s exclusive rights risk inappropriately cabining the 

scope of the derivative works right. The sheer volume of the taking in some of these 

functional transformation cases has at times resulted in courts’ failure to consider 

distinctions among subject works that should be analyzed, if not individually, then 

by categories of works with certain characteristics. A capacious concept of ‘‘transformative use’’ also seems to be swallowing up the more specific exceptions Congress 

has crafted for particular uses, overriding their limitations and thus disregarding 

the balance Congress set for those exceptions. 

1. Some Courts Fail to Give Due Consideration to the Effect of Defendant’s Use on 

the Copyright Owner’s Potential Market. 

Some courts are giving short shrift to two important considerations under factor 

four: First, the effect on the market if the use should become widespread, and second, the appropriate scope of authors’ potential markets. 

The analysis of factor four requires a court to consider 

not only the extent of market harm caused by the particular actions of the 

alleged infringer, but also ‘‘whether unrestricted and widespread conduct of 

the sort engaged in by the defendant . . . would result in a substantially 

adverse impact on the potential market’’ for the original.22

Similarly, the Court in Sony stated that a plaintiff must show that defendant’s 

use is harmful or that ‘‘if it should become widespread, it would adversely affect the 

potential market for the copyrighted work.’’ The Court explained in more detail: 

Actual present harm need not be shown; such a requirement would leave 

the copyright holder with no defense against predictable damage. Nor is it 

necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of harm exists.23

Lower courts have in the past heeded this counsel. For example, in A&M Records 

v. Napster,24 the Ninth Circuit found that Napster’s activities in promoting and enabling consumers to engage in file-sharing of copyright-protected music CDs harmed 

the record companies’ future markets. Although the record companies had not yet 

entered the market for digital downloads, they had ‘‘expended considerable funds 

and effort’’ to commence licensing digital downloads. The court found that the presence of unauthorized copies of plaintiffs’ recordings on Napster’s file-sharing network ‘‘necessarily harms’’ the record companies’ potential market.25

In some of the more recent ‘‘transformative use’’ cases, however, the courts have 

taken an unduly narrow view of the ‘‘transformative’’ use’s effect on potential markets. For example, in Perfect 10, the Ninth Circuit was unwilling to find market effect attributable to defendant’s transformative use because Perfect 10 could not 

demonstrate current sales of thumbnails, even though Perfect 10 had just begun a 

program to offer thumbnail photos (specifically, cellphone downloads) in the market. 

In contrast to its decision six years earlier in Napster, the Ninth Circuit did not find 

plans to enter a market sufficient; it would recognize a market for thumbnails only 

if Perfect 10 could prove actual sales. 

In Authors Guild v. Google, the court never considered the consequences ‘‘if the 

use should become widespread.’’ Perhaps the court implicitly assumed that no one 

but a Google could (or might want to) create such a comprehensive and expensive 

database. But it could well be that smaller, more narrowly tailored databases (e.g., 

financial economics or travel guides) would be of value to specific entities or individuals for a variety of purposes). The cost of book-scanning is far less now than it was 

when Google began its digitization project, so the prospect of a ‘‘democratization’’ of 

mass digitization is hardly far-fetched, and may already be well in prospect. Or, another internet service provider may seek a database to enhance its searches and 

bring in more advertising revenue, just as Google has done. The court simply never 

addressed the possible adverse effects on plaintiffs of a multiplicity of such databases. 

2. Confusion Between a Transformative Work and a Derivative Work. 

Cases since Campbell have contributed to tension between the market for derivative works and exploitation of transformative works. 
20 

26 Campbell, 510 U.S. at 579. 27 § 108 (f)(4). The idea that fair use could make substantial portions of section 108 irrelevant 

was clearly not anticipated by Congress when the 1976 Act was passed. According to the House 

Report accompanying the 1976 Act, ‘‘[n]o provision of section 108 is intended to take away any 

rights existing under the fair use doctrine. To the contrary, section 108 authorizes certain 

photocopying practices which may not qualify as a fair use.’’ H.R. Rep. No. 96–1476, 94th Cong. 

2d sess. at 74 (1976). 28 2 Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 46:5 (7th 

ed. 2013). 29 Bilski v. Kappos, 130 Sup. Ct. 3218, 3228–29 (2010) (citation omitted); Kungys v. United 

States, 485 U.S. 759, 778 (1988). 

Under the Copyright Act: 

A ‘‘derivative work’’ is a work based upon one or more preexisting works, 

such as a translation, musical arrangement, dramatization, fictionalization, 

motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, 

or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original 

work of authorship, is a ‘‘derivative work’’. 

A transformative work is one that adds ‘‘something new, with a different purpose 

or a different character, altering the first with new expression, meaning or message.’’ 26

This overlap in terms and concepts has led to confusion. When is a work ‘‘transformed’’ in such a way that it becomes a protectable (or infringing) derivative work? 

On the other hand, when is it transformed in such a way that the transformation 

significantly bolsters a fair use claim? This decision has important implications for 

authors’ potential markets. If a court finds that defendants’ use of an author’s work 

is ‘‘transformative’’ because it reaches new markets or makes the work available to 

a new audience, that finding could risk usurping the author’s derivative work rights. 

Ultimately, those rights could hinge on a ‘‘race to the market’’ for new and sometimes unanticipated uses. If the party allegedly making transformative use gets 

there first, that market may belong to him and be foreclosed to the author or copyright owner. Moreover, in some cases the copyright owner, who may have obligations to its licensors or others, may be unable to move as quickly as the putative 

‘‘fair’’ user. 

3. Fair Use is Swallowing Other Copyright Exceptions. 

In some cases, expansive readings of fair use have virtually swallowed other exceptions to copyright. For example, the Hathitrust case’s interpretation of fair use 

effectively reads section 108 (c) of the Copyright Act and portions of section 121 out 

of the statute. 

Section 108(c) permits qualified libraries and archives under certain circumstances to make copies of published works in their collections. It provides: 

(c) The right of reproduction under this section applies to three copies or 

phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or 

stolen, or if the existing format in which the work is stored has become obsolete, if——— 

(1) the library or archives has, after a reasonable effort, determined that 

an unused replacement cannot be obtained at a fair price; and 

(2) any such copy or phonorecord that is reproduced in digital format is not 

made available to the public in that format outside the premises of the library or archives in lawful possession of such copy. 

The courts in both Authors Guild v. Hathitrust and Authors Guild v. Google apparently accepted that libraries are free to copy in digital form (or have copied for 

them) all published works in their collections, without qualification. The Hathitrust 

court finds no inconsistency between this comprehensive copying and section 108(c) 

quoted above, because section 108(f) provides that nothing in section 108 ‘‘in any 

way affects the right of fair use as provided by section 107. . . .’’ 27 But section 

108(f) does not justify the court’s conclusion. Under fundamental principles of statutory interpretation, statutes are to be interpreted in a manner that gives sense to 

the whole.28 A statutory provision should not be interpreted in a manner that renders another provision superfluous or redundant.29 Interpreting fair use to permit 
21 

30 Hathitrust, 902 F. Supp. 2d at 465 (footnote omitted). 31See, e.g., Craft v. Kobler, 667 F. Supp. 120 (S.D.N.Y. 1987) (Leval, J.) (holding that a biographer copied more than was needed for his critical examination of the letters of Igor Stravinsky). 32TRIPS, Annex 1C, art. 13. 33WT/DS160/R 15 June 2000 UNITED STATES—SECTION 110(5) OF THE US COPYRIGHT 

ACT Report of the Panel. 

a library to copy every published work in its collections leaves section 108(c) with 

no remaining significance. 

Similarly, the Hathitrust rationale effectively swallows section 121 as well. That 

section provides an exception from copyright for the blind and visually impaired. 

Section 121(a) states: 

(a) Notwithstanding the provisions of section 106, it is not an infringement 

of copyright for an authorized entity to reproduce or to distribute copies or 

phonorecords of a previously published, nondramatic literary work if such 

copies or phonorecords are reproduced or distributed in specialized formats 

exclusively for use by blind or other persons with disabilities. 

As it did in setting a balance in section 108, Congress carefully crafted section 

121 to provide a balance between the interests of the visually impaired and those 

of authors. In Hathitrust, however, the court concluded that although defendants in 

its view ‘‘fit squarely within’’ section 121, they ‘‘may certainly rely on fair use . . . 

to justify copies made outside of these categories or in the event they are not authorized entities.’’ 30

The court’s conclusion reads the essential conditions in section 121 out of the law. 

4. Evaluating Fair Use ‘‘In Gross.’’ 

The sheer volume of works involved in the mass digitization cases has led courts 

to eschew the case-by-case fact-based analysis fair use has traditionally required. Of 

course it is not possible to evaluate each work individually in these cases. But even 

significant differences among subgroups of works seem irrelevant in these cases, 

e.g., fiction versus nonfiction? Works no longer available on the market versus those 

recently released? It’s as though courts are according some kind of ‘‘volume discount’’ for fair use, where a massive taking justifies a lower level of scrutiny in a 

fair use determination. It becomes increasingly difficult to explain to authors and 

public alike a copyright regime that rigorously examines the extent of a single scholar’s partial copying,31 while essentially according a free pass to a for-profit enterprise’s massive takings. It also risks putting the U.S. at odds with international 

norms. 

5. Expansive Interpretations of ‘‘Transformative Use’’ Risk Putting the U.S. in Violation of its International Treaty Obligations. 

The United States is a member of a number of international copyright treaties 

and agreements—e.g., TRIPs, the Berne Convention, and the WIPO Copyright Treaty—that require that member states’ copyright exceptions (as applied to foreign 

works) meet the ‘‘Three Step Test.’’ As set out in the TRIPS, that test provides: 

Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the 

work and do not unreasonably prejudice the legitimate interests of the right 

holder.32

As the World Trade Organization’s dispute resolution panel held in a case in 

which the U.S. was found to be in violation of this test,33 under the first step, any 

limitations or exceptions must be clearly defined and limited in scope. ‘‘Normal exploitation’’ embraces all forms of exploitation that the author would normally seek 

to exploit now or in the future. In other words, an exception may not compromise 

a normal market for the work. The third and final step requires that authors be 

protected from unreasonable loss of income; in some cases a compulsory license or 

remuneration scheme is permissible if the author’s rights are adequately protected. 

An increasingly expansive fair use exception risks violating each of these three 

steps. Fair use is open-ended; its consistency with the first step depends on the 

scope of its application in particular cases. The broader the scope of the works affected, or the wider the uses the exception permits, the more likely that the exception will not be deemed limited to ‘‘certain special cases.’’ By the same token, the 

breadth of the exception’s application can affect types of exploitation that the author 

is now or likely will in the future be engaging in. Finally, fair use is an all-or-nothing proposition. If a use is ‘‘fair’’, authors receive no compensation for the use. The 

U.S. has no remuneration scheme in connection with fair use. 
22 

34See, e.g., H.R. Rep. No. 96–1476 at 66: ‘‘Beyond a very broad statutory explanation of what 

fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine 

to particular situations on a case-by-case basis. Section 107 is intended to restate the present 

judicial doctrine of fair use, not to change, narrow or enlarge it in any way.’’ 35 In Harper & Row v. Nation Enters., the unpublished nature of the Ford memoirs was a key 

consideration in the Court’s decision that the Nation had not a made a fair use. Harper & Row, 

471 U.S. 539, 561–62. After that decision, the high level of protection accorded unpublished 

works by some courts seemed largely to foreclose making fair use of unpublished material, posing serious obstacles to historians, biographers and others. E,g, Salinger v. Random House, Inc., 

811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987). In 1992, Congress amended § 107 to 

provide that ‘‘[t]he fact that a work is unpublished shall not itself bar a finding of fair use if 

such finding is made upon consideration of all the above factors.’’ 

THE FAIR USE ‘‘PENDULUM’’ 

Fair use doctrine is not static. Over the years fair use case law has sometimes 

strayed too far in one direction, favoring right holders, or in the other direction, favoring users. For example, after the Sony case, many lower courts interpreted the 

Supreme Court’s statement that ‘‘‘commercial use is presumptively an unfair exploitation’ of the copyright owner’s rights’’ to drive both the first and fourth fair use 

factors, making commercial fair use difficult to achieve. In Campbell, the court 

stepped in to restore the balance. 

Now, the pendulum has swung the other way. Now it is ‘‘transformative use’’ that 

drives these two factors, which together are generally determinative of fair use. It 

is important that the fair use ‘‘pendulum’’ once again be moved back toward center. 

A ROLE FOR CONGRESS?

Despite the concerns just voiced, fair use remains a rule whose application is best 

made by judges, as Congress recognized in codifying the doctrine in section 107.34

As we have seen, the pendulum can swing in both directions. But if Congress had 

best continue to leave the general task of applying the section 107 factors to the 

courts, legislative intervention may be appropriate when that application proves too 

rigid or too expansive. Thus, after a series of decisions in which lower courts misapprehended the Supreme Court’s interpretation of the second fair use factor as 

wholly insulating unpublished works from quotation, Congress added a final sentence to section 107 to emphasize that all the factors should be taken into account, 

and that the single feature of a work’s publication status was not dispositive.35

Just as some judges overreacted to the Supreme Court’s protection of the right 

of first publication by overly-constricting fair use, the current judicial expansion of 

fair use may reflect concern to preserve the benefits of mass digitization notwithstanding the tension between those activities and the Copyright Act’s charge to secure the actual and potential markets for works of authorship. Without altering the 

text of section 107, Congress might separately address the problems of mass 

digitization, including whether authors should be compensated for publicly beneficial uses (compensation is not currently an option under section 107). Congress’ attention to those issues might relieve the pressure that has risked turning the doctrine into a free pass for new business models, and thus restore fair use to its most 

appropriate role of fostering new authorship. 

Thank you for this opportunity to provide comments to the Committee. 

Mr. COBLE. I thank you, Ms. Besek. 

Ms. Novik? 

TESTIMONY OF NAOMI NOVIK, AUTHOR AND CO-FOUNDER, 

ORGANIZATION FOR TRANSFORMATIVE WORKS 

Ms. NOVIK. I would like to thank the House Judiciary Committee 

for inviting me to testify about fair use and its role in promoting 

creativity. 

I am not a lawyer, but as one of the creators and artists whose 

work is deeply affected by copyright law, I hope to explain how 

vital fair use is to preserving our freedom and enabling us to create 

new and more innovative work. 

Today, I am the published author of 10 novels, including the New 

York Times bestselling ‘‘Temeraire’’ series, which has been optioned 
23 

for the movies by Peter Jackson, the director of ‘‘The Lord of the 

Rings.’’ I have worked on professional computer games and graphic 

novels, and on both commercial and open-source software. And I 

would have done none of these things, if I hadn’t started by writing 

fan fiction. 

I found the online remix community, in 1994, when I was still 

in college. For the next decade, before I wrote one word of my first 

novel, I wrote fan fiction, built online computer games, wrote opensource archiving software, and created remix videos. I met hundreds of other artists creating their own work and found an enthusiastic audience who gave feedback and advice and help. We 

weren’t trying to make money off our work. We were gathering 

around a campfire. We were singing, telling stories with our 

friends. The campfire was just a bigger campfire, thanks to the 

Internet, and instead of telling new stories about Robin Hood, we 

told new stories about Captain Picard, because that is who we saw 

on our television every week. 

Fair use gave us the right to do that. And, I am not a lawyer, 

but I can tell you that for all of us, what we were doing felt absolutely ‘‘fair.’’ We watched Star Trek every week, religiously. We 

bought the t-shirts and the videotapes and the spinoff books. And, 

when the DVDs came out, we bought those too. Of course we were 

going to have our own new ideas about the characters, about the 

universe, about what might happen. That is what we do. We are 

imaginative creatures. And of course we wanted to share our ideas 

with each other. 

I learned to explore ideas in the remix community and to see 

where they led me. And, eventually, they led me to my own characters and my own universe. And now other artists—other remix 

artists are writing fan fiction for ‘‘Temeraire.’’ And they make fan 

art. And sometimes they even send me a stuffed ‘‘Temeraire’’ to 

give to my 3-year-old daughter. And I hope that one day one of the 

fans writing ‘‘Temeraire’’ fan fiction will go on to write their own 

bestseller or make their own movie or game, perhaps with an idea 

sparked by something that I wrote. 

We all build on the work and ideas of people who came before 

us. In fact, that is the only way to innovate. There isn’t a hard line 

between remix work and work that stands on its own. Original 

work is at the end of a natural spectrum of transformation. And 

fair use protects the spectrum. It creates a space where artists can 

play with ideas and develop our skills, share our work within a 

community, and learn by doing. 

Licensing is just not a realistic alternative. On the purely practical level the vast majority of remix artists doing noncommercial 

work simply don’t have any of the resources to get a license, not 

money, not time, not access. I wrote my first fan fiction story as 

a sophomore in college, taking five courses, working a part-time job 

doing page layout for the campus weekly, and occasionally calling 

my parents. If I had had to pay someone and go through a complicated licensing process to get to the point of writing that story, 

I would never have done it and I might never have written my own 

novels in the end. Imagine if kids who watched the ‘‘Lone Ranger’’ 

and ran outside to make up a new adventure in the backyard had 
24 

to get a license before doing that. And today the Internet is increasingly becoming our shared backyard. 

And speaking also as a copyright holder, licensing is not a practical option for most of us on the other side of the problem as well. 

Most artists are not large media conglomerates with substantial 

legal departments. I am delighted for other artists to make fair use 

of my work. But, I don’t want the difficulty and the expense and 

the legal risk of having to give a license to every kid who might 

want to write a story where they become the captain of a dragon 

in the ‘‘Temeraire’’ universe. 

More importantly, licensing still doesn’t work, even if the practical considerations are removed, because licensing invariably stifles transformative work. I know authors who have written licensed 

tie-in novels. And they always face a long list of requirements. And, 

at the end of the book, they have to bring everything back to the 

beginning. The point of licensing, by the copyright holders, almost 

always is to avoid transformation because, by definition, a transformative work is one that doesn’t match up to the copyright holder’s vision. 

I see I am running out of time, so I am going to skip a little bit 

ahead and ask Congress to make it easier for developing artists, 

like the one that I once was, who are often at a significant disadvantage currently to exercise their fair use rights. Most remix 

artists, especially ones just starting out, don’t so much as know a 

lawyer. They don’t have the resources to defend themselves against 

even the most frivolous lawsuit or an automated takedown. 

Congress could give tremendous support to the incubator of 

remix art by making it less frightening to take the chance of creating. Artists creating transformative work should not be asked to 

pay more in damages than they have earned from their work, so 

long as they acted in good faith. Congress could also require platforms that create automated screening tools for copyrighted work, 

to provide a straightforward way for artists to identify their work 

as transformative and make the claim of fair use. And, Congress 

could add a specific exemption for noncommercial transformative 

work that would supplement fair use the same way that libraries 

and teachers have specific exemptions that provide a clear safe 

harbor. 

In general, I strongly urge Congress to resist any suggestion of 

narrowing fair use, including by trying to replace it with licensing. 

Innovation starts with asking, ‘‘What if?’’ What if we could build 

a machine that could fly? What if you crossed a cellphone and a 

music player? Our country is a world leader in innovation precisely 

because here we ask the ‘‘what if’’ questions. 

Thank you very much. 

[The prepared statement of Ms. Novik follows:] 
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Mr. COBLE. Thank you, Ms. Novik. 

Ms. Besek, you are the only witness so far to beat the red light. 

[Laughter.] 

Mr. COBLE. Now I am imposing pressure upon Mr. Lowery. 

Mr. Lowery, you are recognized for 5 minutes. [Laughter.] 

Mr. LOWERY. I may have a distinct advantage, Mr. Chairman, 

since I am used to expressing myself in less than 5 minutes. 

Mr. COBLE. Well, we—as I said, we won’t penalize you if you fail 

in that effort. 

TESTIMONY OF DAVID LOWERY, SINGER/SONGWRITER AND 

LECTURER, TERRY COLLEGE OF BUSINESS, UNIVERSITY OF 

GEORGIA 

Mr. LOWERY. Okay. Chairman Goodlatte, Chairman Coble, Ranking Member, and Members of the Subcommittee, my name is David 

Lowery, and I am a mathematician, writer, musician, producer, 

and entrepreneur based in Richmond, Virginia, and Athens, Georgia. I also teach Music Business Finance at the University of Georgia. Thank you for this opportunity to speak with you today about 

the scope of fair use. 

The rise of the Internet corresponds with recent attention devoted to fair use as an excuse for trumping the rights of authors 

established both in the U.S. and other countries. This attention 

comes from technology companies, commentators, lobbyists, and 

some parts of the Academy. 

I am not concerned with parody, commentary, criticism, documentary filmmakers, or research. These are legitimate fair use categories. I am concerned with the illegal copy that masquerades as 

fair use, but is really just a copy. This masquerade trivializes legitimate fair use categories and creates conflict where there need 

be none. These interpretations of fair use have become important 

to my daily life as a singer-songwriter. There are attempts by certain Web sites and commercial services to pass off, as fair use, 

versions of my work that are indistinguishable from my work. As 

I will demonstrate, these works compete directly with licensed instances of my work. 

As a professional singer-songwriter, I believe that fair use doctrine, as intended by Congress, is working in the music business 

and music industry and should not be expanded. Sampling and remixing is one arena where there has been a push for expanded fair 

use. This defies logic, as there is no emergency. Hip-hop relies on 

samples of other artists’ work. There exists robust market-based 

mechanisms for licensing these samples. And hip-hop has gone on 

to become the most popular form of music on the planet, without 

expanded fair use. ‘‘Don’t fix it, if it ain’t broke.’’ I go into great detail in my written testimony. 

Another arena is song lyrics. Some commentators have suggested 

that sites that reprint song lyrics with annotations or meanings 

may be covered by fair use. I have personally experienced the unauthorized use of my lyrics on one of the most famous lyric annotation sites called RapGenius. Exhibit one shows an example from 

this lyric annotation site. I research lyric sites as part of my academic work at the University of Georgia and produced the UGA 

‘‘Top Fifty Undesirable Lyric Website List.’’ After I published my 
33 

most recent update to the list, which placed RapGenius at number 

one, the editor in chief of RapGenius transcribed the lyrics of my 

song ‘‘Low’’ and began annotation of my lyrics. These annotations 

are invisible in the exhibit. They appear only as hyperlinks to 

popup windows. Now, note these links could refer to anything. 

How is this use any different from the use of my lyrics on the 

non-annotated-and-licensed site? These are virtually identical. The 

RapGenius instance of my lyrics is nearly identical to this one. 

How is it fair use? It competes directly with the revenue I receive 

from this licensed site. Following this logic, I could reprint an entire book and occasionally provide a hyperlink to the definition of 

a word. Indeed, the owners of RapGenius seem to agree that their 

use is not fair use, as evidenced by their recently completed licensing deals with Sony, ATV Music, and Universal. 

My final point, before thanking the Subcommittee for this opportunity to speak today, is: What is so hard about asking permission? 

As an artist, I only expect to be treated as I would treat other artists. I believe that permission or the legitimacy of consent and 

doing unto others are the very foundations of civilizations. The 

rights’ holders have never been easier to look up. Millions of recordings can be identified with an iPhone application or looked up 

in a public database at no charge. It takes little effort. 

In conclusion, I respectfully request that the Members of the 

Subcommittee review the practical history of the application of fair 

use defense to see that it is working as intended. I hope you will 

agree with me that no legislative expansion or governmental intervention is needed at this time. 

Thank you very much. 

[The prepared statement of Mr. Lowery follows:] 
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Mr. COBLE. Thank you, Mr. Lowery. And you prevailed over the 

red light. 

Mr. LOWERY. Barely. [Laughter.] 

Mr. COBLE. Mr. Wimmer? 

TESTIMONY OF KURT WIMMER, GENERAL COUNSEL, 

NEWSPAPER ASSOCIATION OF AMERICA 

Mr. WIMMER. Chairman Coble, Members of the Subcommittee, 

thank you for having me here today. 

The professional reporting that newspapers publish starts important conversations in the communities that we serve. We recognize 

that this conversation often continues online, both on platforms 

that our industry owns and on those owned by others. Because our 

content is a central part of these conversations, the scope of fair 

use is an important issue for the news industry. The newspaper industry spends about $5 billion a year gathering 

and producing news and information. We are also investing heavily 

in new online and mobile platforms to deliver content to readers. 

As a result of these efforts, newspapers have a larger audience 

than ever before. Newspaper circulation revenue grew 5 percent in 

2012 and digital-only circulation revenue grew by 275 percent. 

Nearly 65 percent of all U.S. adults read newspaper content in a 

typical week or access newspaper content on a mobile device in a 

typical month. The digital future, then, is bright. But there is much 

ground to make-up because of the unprecedented disruption caused 

by the digital transition. For every $15 in print advertising revenue 

lost, newspapers have gained only $1 in digital advertising revenue. 

Competition for viewers in the digital world is fierce. And our 

publishers increasingly find themselves competing not only against 

companies that create original content, but also with companies 

that build businesses on the backs of the very news content that 

our members produce. Newspaper content makes up 66 percent of 

the content on news aggregation platforms such as Google News. 

Newspaper content also makes up more than half of the content on 

many popular digital platforms. These uses can result in some limited traffic to newspaper sites, but most don’t result in meaningful 

revenue. The platforms using our content, however, certainly benefit by using news content to build and monetize readership on 

their sites without paying a dime for the use of that content. 

Some of the uses of newspaper content certainly qualify as fair 

use, while others clearly do not. But this is an issue that we think 

can be remedied by the courts rather than Congress. We believe 

the current state of the Copyright Act, including the formulation of 

fair use, strikes the right balance and should not be changed. The 

fair use doctrine has been developed over decades as a common law 

concept allowing courts to respond to changes in technology. This 

case-by-case analysis allows courts to balance the competing individual interests at hand, and to capture both those needs and the 

welfare of society as a whole. 

A recent example of a court deftly applying this fair use doctrine 

is the Southern District of New York’s decision in Associated Press 

v. Meltwater. Meltwater is a for-profit reporting service that 

scraped AP articles and delivered verbatim excerpts of them to its 
41 

paying subscribers. The court properly found that Meltwater’s customers viewed the service as a substitute for reading the original 

articles, judging by the minuscule click-through rates. The court 

held that Meltwater’s republication of segments of news articles 

without additional commentary or insight was not transformative 

and not a fair use. Targeted enforcement actions focusing on commercial ventures that simply take and resell our content may continue to be necessary. 

Of course, not all fair use decisions are decided correctly. In particular, some courts’ recent willingness to give undue weight to the 

concept of transformative use is troubling. This undue weight and 

the surprising types of rather pedestrian uses that have been found 

to be transformative risks allowing that element to subsume the 

other equally important factors. We hope and expect that this imbalance in applying the fair use factors will be corrected over time. 

Another reason that the Copyright Act need not be changed is 

because licensing arrangements are becoming more realistic in 

many industries, including ours. We believe that many participants 

in our ecosystem, particularly innovative startup ventures and social media platforms, would really prefer to deploy solutions that 

rely on licensed content rather than to rely on questionable business models, such as scraping and violation of copyright and terms 

of use. Licensing news content allows that content to be distributed 

on new platforms, but helps to support the cost of high quality 

original journalism. 

In all, our goal in the digital world remains consistent with our 

longstanding mission: We seek to inform audiences as broadly as 

possible about the communities in which they live. In the digital 

environment, we will seek the appropriate balance of enforcement, 

licensing, cross-industry partnerships, and deploying our own new 

platforms to achieve this goal. And continued reliance on steadfast 

areas of law, such as fair use, will be essential as we continue to 

move forward. 

Thank you for the opportunity to testify. And I look forward to 

your questions. 

[The prepared statement of Mr. Wimmer follows:] 
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Mr. COBLE. And you also prevailed, Mr. Wimmer. Thank you. 

Mr. WIMMER. Well, Mr. Lowery had raised the bar. 

Mr. COBLE. And I am not penalizing you, Mr. Jaszi, by association. 

Because we try to apply the 5-minute rule to ourselves, so if you 

could be terse in your response, we would be appreciative. I will 

start. 

Let me start with you, Mr. Wimmer and Mr. Lowery. What— 

with the focus of transformative uses, what, in your minds, are 

transformative works for the purpose of fair use and what is not? 

Mr. WIMMER. Well, it is a good question and it is one that is very 

fact based. You know, the transformative works that I have not 

been—that I really haven’t been pleased with are the ones that 

have sort of allowed secondary uses to simply take copyright owners’ work, use it in a very straightforward matter, and claim it is 

transformative. 

The case that really does stick in my craw is the Grateful Dead 

case in which a publisher was making a coffee-table book about the 

Grateful Dead, which seems to be sort of a contradiction in terms, 

and took Grateful Dead posters over the years and put them in 

chronological order. The court then found that simply putting those 

posters in chronological order transformed them into something 

else, which I really do not agree with. The Bloomberg case, however, I think is an interesting—which the professor talked about, 

is an interesting transformative use case that I do think makes a 

lot of sense for the reasons that the court announced just yesterday. 

Mr. COBLE. Mr. Lowery, do you want to add to that? 

Mr. LOWERY. Well, yes. I mean, my example that I showed before 

is an example which is—some commentators argue is a transformative case, as you can see the reprinting of my lyrics on a site, 

which has yet to license these lyrics. 

And this site, which I am sorry about the lady on there, but 

every ad I hit had something like this. I don’t know if it is because 

I was at the airport or what. [Laughter.] 

Mr. COBLE. No apology necessary. 

Mr. LOWERY. Yeah. [Laughter.] 

But this is the same instance of my lyrics here. But some commentators have claimed that this is transformative because you 

can click on these hyperlinks and they might go to another window 

or a popup or something like that that has maybe an explanation 

of a word or says, ‘‘Oh, he is referencing Baudelaire, right here.’’ 

Which, by the way, is a perfect example of fair use. I subtly reference Baudelaire here. Well, actually, I mean, that doesn’t even 

involve fair use, because I believe that is in the public domain. So 

this, to me, is a case of something that is not transformative that 

people argue is transformative. And so, it competes directly with 

this, for which I make, well, micro-pennies for each page view. But 

it is a market; it has been established. There are market-based 

mechanisms. There are, you know, agencies that license these. 

There is a free market in the reprinting of song lyrics. 

Mr. COBLE. Thank you, Mr. Lowery. 

Mr. LOWERY. Thank you. 
53 

Mr. COBLE. Professor Jaszi, should a definition of transformative 

be codified? 

Mr. JASZI. I think that—— 

Mr. COBLE. Mike, please. 

Mr. JASZI [continuing]. The—that it is—it would be a great mistake, at this time, to attempt to arrest this judicial development or 

this process of judicial development that is well underway. We 

have resisted, over time, codifying in detail other aspects of the fair 

use doctrine. The results have been enormously productive, in 

terms of social, cultural, and technological innovation. For the 

same reason, I think, the reduction to a narrow description of 

transformativeness would be a great error at this time. 

Mr. COBLE. Thank you, sir. 

Professor Besek and Ms. Novik, are there recent fair use decisions with which you disagree? And, why? 

Ms. BESEK. Well, there a number of recent decisions which I disagree with, but one comes to mind immediately. It was a case that 

dealt with whether use within a law firm of certain scientific articles was fair use or not. The argument for functional transformation was that the law firm was trying to decide if it needed 

to submit the articles to the PTO as evidence of prior art. The argument was that, ‘‘Well, these articles are published so that people 

can understand new scientific developments, and the law firm is 

only using them to see if they are prior art.’’ But they are both 

reading them. They are both reading them to see what substance 

is contained in the article and what it says about scientific development. So, I don’t think that that is a transformative use. It may 

be excused on other grounds, but it is not transformative. 

Mr. COBLE. And you want to add to that Ms. Novik? 

Ms. NOVIK. I am not a lawyer, so of course I am not as familiar 

with various cases that are coming out. But, I will say that I think 

transformative is one of those things where you kind of know it 

when you see it. 

And to actually speak to the case that Mr. Wimmer mentioned 

of the Grateful Dead posters, I actually happened to see an example of this. The coffee-table book presented the posters in thumbnail form and in chronological order in a way that, at least for me 

as a simple reader, I actually found did add information and did 

not replace the original. You know, if you want a big poster of the 

Grateful Dead on the wall, it is not the same thing as looking at 

a page in a coffee-table book that has seven or eight posters showing you the evolution of the style of the Grateful Dead. So, I actually felt that that was a reasonable judgment. 

And, so far at least, I feel that the court has been making—the 

courts have generally been making interpretations of transformative that, at least for myself as a creator, have made a certain 

sense. 

Mr. COBLE. I thank you for that. 

And I plead guilty, I failed to prevail with the red light. 

Ms. Chu is recognized for 5 minutes. 

Ms. CHU. Thank you, Mr. Chair. 

As cochair of the Creative Rights Caucus I am so glad to see that 

we have individual creators here on today’s hearing. And, in particular, I want to welcome back David Lowery to Capitol Hill. He 
54 

is an outspoken singer-songwriter who is not afraid to speak his 

mind on key copyright issues, for the purpose of advocating for creative rights. So, thank you, Mr. Lowery, for speaking out for individual creators who simply want to preserve their right to make a 

living from their works, but often face many unique challenges. 

And, in fact, let me start with a question for you, which is on 

remixes and illegal lyric Web sites. In your testimony, you seem to 

indicate that there is a right way to sample music and that a permission-based solution is possible. You offer hip-hop and electronic 

dance as examples of music that rely on sampling and remixing. 

So, why is it that some choose not to do it the right way, when our 

current copyright system has allowed, as you say, ‘‘market-based 

mechanisms and conventions to evolve and facilitate the licensing 

of sample and remixes?’’ 

And then, let me also ask about lyric Web sites, as a lesserknown kind of copyright infringement. And, you conducted a study 

to figure out how rampant this type of online infringement is and 

have even experienced that with your own lyrics. Can you tell us 

how serious and prevalent of a problem illegal lyric Web sites are? 

Mr. LOWERY. Well, I will start with your second question. The 

lyrics were kind of a—they are an interesting case for the digital 

age, because really for a lot of artists there was no market for their 

lyrics because the fixed cost to print a book was too high. So, this 

is actually a success story for the Internet and music. One of the 

few ones. It is that there actually is a market for relatively obscure 

artists to market their, you know, essentially get some small 

amount of revenue from their lyrics. So—and, generally, the lyric 

Web sites have generally been licensed. Not all of them, but, looking at the traffic, about half of them or a slight majority of the traffic to these Web sites has been licensed. But, what started to, you 

know, peak my interests is that there seemed to be backsliding and 

a push for fair use, based around sort of annotations or meanings 

of the songs. And these are directly competitive with the, like I 

said, directly competitive with the market that already exists 

which has sort of established a market price, has established uses 

and all of that. 

Speaking to EDM and hip-hop, I often hear that there has been 

some sort of argument that hip-hop is not as innovative as it once 

was. Because of various rulings and stuff like that, people don’t 

sample quite as much as they did before and stuff like that. All I 

can say is, I just like to point out that the market, basically, disagrees with that because hip-hop is now more popular than it ever 

was. So those rulings that may have sort of restricted some uses 

actually didn’t affect the popularity of hip-hop. 

And finally, generally, having owned a studio for 20 years, I see 

that people tend to do what copyright intended when they are not 

able to obtain a license for a song that they sample. They tend to 

do what was intended in copyright, they create a new loop, we call 

them loops, to take the place of the sample. That is, they create 

a new work, which is something that I believe the founding fathers 

intended in the copyright clause. 

Ms. CHU. Okay. Thank you for that. 

Professor Besek, you expressed concerns with how there is the 

use of fair use in trade promotion authority. And, I understand 
55 

that the courts don’t always get it right, especially as digital technology continues to facilitate the reproduction and distribution of 

content in ways not contemplated by Congress. But some people 

are pushing for required exporting of our common law of fair use. 

What are the potential consequences of this, if—to the U.S. standards of fair use? 

Ms. BESEK. I think the idea of exporting fair use is a really interesting one, although I don’t think this is the time to do it. And that 

is because we have enough uncertainty here in our fair use doctrine that we should not be sending it to other countries. But, the 

part that I think is especially interesting is we are—I think some 

people are assuming that fair use, when exported, would be the 

same. But we have had so many different cases in the United 

States where the fair use has switched from the district court to 

the Appellate Court to the Supreme Court. And in another country 

it could have gone the other way. So, I don’t think we can assume 

that fair use, applied in another country, would look like it does 

here. 

And the other point is that other countries have very different 

copyright laws, in the sense that they don’t have a blanket exception, they have very specific exceptions. And for us to be imposing 

our fair use exception on them wouldn’t sit very well, when they, 

in fact, cover a lot of the same uses that we do, but just in a different way. 

Ms. CHU. Thank you. 

I yield back. 

Mr. COBLE. The gentlelady’s time is expired. 

We have time for one more round of questions before we go vote. 

The gentleman from Pennsylvania is recognized for 5 minutes. 

Mr. MARINO. Thank you, Chairman. 

Professor Jaszi, I would like to begin with you, sir. Where do you 

draw the line on the fair use? Where do you draw the line on copyright using, particularly, lyrics for music or poetry? 

Mr. JASZI. I think that line is properly drawn, although it is not 

easily drawn, between those uses which are genuine value-added 

uses which do infuse commentary, critique, and other added value 

into the material used—— 

Mr. MARINO. So, you—— 

Mr. JASZI [continuing]. And those—— 

Mr. MARINO [continuing]. You don’t support the fair use, then? 

You just think that everything is game? Everything is—it can be 

used by anyone out there? 

Mr. JASZI. I don’t think that that was my answer. 

Mr. MARINO. Okay. 

Mr. JASZI. But I was about to say that, by contrast, there may 

be situations, and perhaps some of the sites to which Mr. Lowery 

refers are such situations, in which the added value or repurposing 

is protectoral rather than real. 

Mr. MARINO. Okay, now—— 

Mr. JASZI. It is my—— 

Mr. MARINO.—I am at limited time here, sir. So, I would love to 

discuss this all day long with you because you seem—you are certainly aware of it. But I have to move on in my line of questioning. 
56 

I hear constantly from musicians, artists, individuals who supply 

the lyrics, supply the music, who are waiting on tables in restaurants and they see their music, their lyrics on the Internet. 

They receive nothing for that. Do you have any problem with that, 

whatsoever? 

Mr. JASZI. I don’t believe that the kinds of complaints about the 

use of music in public places, for example to which you refer, are 

even arguably covered by fair use. There may be enforcement 

issues concerning how well the music industry does, in fact, impose 

on restaurants which are subject to—— 

Mr. MARINO. No, no. You misinterpreted. I am sorry, maybe I 

wasn’t clear enough. I don’t mean using the material, playing it. I 

mean that these artists, these writers who write the lyrics then 

this music goes—makes a lot of money and then pirates on the 

line, on the Internet are using this music and selling it—— 

Mr. JASZI. Again, I don’t believe that anyone, certainly not myself, would defend Internet piracy as a form of fair use. It lacks all 

of the characteristics of transformative use, repurposing and addition of value, which the courts have identified, over the last 20 

years, as the earmarks of fair use. 

Mr. MARINO. Okay. So, you don’t have a problem with the courts 

then interpreting, as Attorney Wimmer—Wimmer, sorry, stated, 

that let us let the courts—it is common law, let us let them make 

that determination? 

Mr. JASZI. I am sorry, the—— 

Mr. MARINO. Do you have any problem with the courts then 

making that determination on the four points that they usually use 

to determine whether there is transformation or not? 

Mr. JASZI. Oh, I think that is exactly the way we should proceed. 

Mr. MARINO. Okay. Let me pose this scenario, and please don’t 

take it personally. You are a lecturer. And what would your position be that, concerning the—wherever you lecture, your employer 

pays you for that lecturing. So they video your lectures and then 

next year they say, ‘‘We don’t need you anymore. We are just going 

to run your videos and not pay you for them.’’ What is your position 

on that? 

Mr. JASZI. Well, they do that already. And—— [Laughter.] 

Mr. JASZI [continuing]. So far I have survived. It is essentially 

a contractual thing. 

Mr. MARINO. But, sir, there is the key. Therein lies the phrase, 

‘‘You have survived.’’ Many, many of the people in the entertainment industry and the writers, they are not surviving. Fortunately 

for you, like myself, we have an income that we can live on. But 

individuals with the talents that I don’t have are out there making—writing books and beautiful music, but yet are getting maybe, 

maybe a few cents, if at all. So you—would you—I would have to 

think that, based on what you said, you agree with me that they 

must be compensated. 

Mr. JASZI. Oh, I absolutely agree. But the problem here is not a 

problem with copyright. Just as I am defended in my workplace by 

my contract, so the essential problem relating to the return from 

the markets to creative people is a problem of contract rather than 

copyright. 
57 

Mr. MARINO. So, why limit it then, with your position, why limit 

to copyright? Why not trademark? Why not patents? 

Mr. JASZI. Well, we do have a very vital doctrine of fair use in 

trademark law. And the patent law, although it is different in its 

nature, far shorter in duration, is also subject to a number of public interest exceptions. So there is—— 

Mr. MARINO. But it is far more—— 

Mr. JASZI [continuing]. Nothing unique here. 

Mr. MARINO [continuing]. It is—they are far more stringent than 

we are in the copyright areas. 

Mr. JASZI. Well again, I would make a distinction, I think I 

would probably differ slightly, with respect to trademark. I think 

trademark law actually is as porous or more porous than copyright 

law. But as to—— 

Mr. MARINO. I see my time—— 

Mr. JASZI [continuing]. Patent, there is a significant—— 

Mr. MARINO.—I see my time has elapsed and we have to go vote. 

But, thank you so much, I appreciate the exchange. 

Mr. COBLE. I thank the gentleman. 

The gentlelady from California asked to be recognized. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

I would like you to ask unanimous consent to put into the record 

some fair use principles for user generated video content, submitted by a variety of advocacy groups. 

Mr. COBLE. Without objection. 

[The information referred to follows:] 
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Mr. COBLE. Ladies and gentlemen, the Committee will stand in 

recess for this series of votes. But Members should be advised that 

we will resume the hearing immediately after the votes. We will 

continue until it is time for Judiciary to manage its portion of H.R. 

7, on the House floor. 

So, we will stand in recess until we come back. 

[Recess.] 

Mr. COBLE. And now we will continue to hear from the gentleman from Pennsylvania until we wait for the others to show up. 

Mister—the gentleman from Pennsylvania? 

Mr. MARINO. An innocuous question for the lawyers and we can 

start with Mr. Wimmer. If you have followed the cases that have 

come down through the Federal courts, following the law, the common law that has been established, and I am going to ask the others to respond to it too, were you able to see that there is a relative 

consistency in the courts’ opinions? 

Mr. WIMMER. You know, it is an interesting question. I think 

there was a substantial amount of consistency until about the late 

90’s, when the transformative use concept really started to ascend. 

And now, when you look at cases, like the Kelly v. Arriba Soft 

Case, and Perfect 10, and even through Google Books, it almost 

seems as though the transformative use piece has really unsettled 

the marketplace. But in terms of the rest of the factors, it has been 

pretty consistent, I think. 

Mr. MARINO. Professor Besek and then Professor Jaszi? 

Ms. BESEK. I think that where you start finding inconsistencies 

is when there is a genuinely new use. So, for example, you see 

courts really split on issues. And it is hard to predict whether a 

new use will be fair or not. I mentioned earlier that, in some of 

these cases like Sony, the district court goes one way, the Appellate 

Court goes another way, the Supreme Court goes another way. And 

then, sometimes, the decision that is originally written, turns out 

to be the dissent. So that’s where, I think, the principal areas of 

difference between the circuits and the courts generally come up. 

Mr. MARINO. Professor? 

Mr. JASZI. I actually, I think, have a somewhat different take on 

this. I think that there is a lot more consistency in the current pattern of decisions, what I referred to in my remarks as, ‘‘the emerging unified field theory of transformative fair use,’’ then I would actually have expected for an approach to legal analysis that really 

is only 20 years old. And, in particular, now we are seeing a convergence of the approaches of the two circuits that have done the 

most decision-making in this area, that is the Second and the 

Ninth, which for a while we believed might be on different tracks. 

But, which the last couple of significant opinions suggest are probably not. Now, one can agree or disagree with that emerging unified field theory. But, I think it is remarkably consistent, even 

though, as Professor Besek states, sometimes it isn’t clear how it 

applies to the whatever the new thing is. 

Mr. MARINO. As a prosecutor, I am used to the criminal statutes 

and it is fairly consistent. It is—I have done some civil work in the 

banking industry, and I see how it does vary from, you know, codified legislative law, whether it is at the State or at the Federal 

level. 
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So, I yield back. Thank you. 

Mr. COBLE. I thank the gentleman. 

And, while we are waiting, I recognize the distinguished gentleman from Virginia, the Chairman of the full Committee. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Ms. Novik, and I direct this to Mr. Lowery too on this issue of 

remixing. I, you know, I see that a lot. I see it is very popular with 

people. And I understand it and I certainly understand the attraction of taking somebody’s work and altering it and doing new 

things that can be very creative. But, is there a way to—you know, 

it troubles me that if they take that, remix it and are able to exploit it and offer it and actually copyright their new work themselves, that the original artist, whose work has been altered, 

doesn’t benefit from that. I wonder if you have any thoughts on 

that. And whether, if the standard is that you are allowed to do 

this, if you have to get a license if you are deriving a certain 

amount of commercial benefit from it, as opposed to just doing it 

for fun and to share with your friends, kind of thing. 

Ms. NOVIK. Well, obviously I have spoken a great deal about noncommercial transformative work, where, you know, it is really—I 

mean, I talk to a lot of 16-year-old kids who are writing their own 

Harry Potter story, for instance, where they get to go to Hogwarts. 

And that is not hugely transformative. They frequently participate 

in all the same events of the book. But, at the same time, it is noncommercial. And so, I think the four points of fair use balance each 

other out. 

When it comes to commercial use, again, I feel that, you know, 

there are cases like—— 

Mr. GOODLATTE. You do agree that, if they did that and they hit 

on something really cool, that they would have to get a license from 

J.K. Rowling to do that? 

Ms. NOVIK. I mean, I think that, you know, I think that obviously, depending on what they were doing, a court would have to 

look at it. I am sure if it were not and decide whether it were fair 

use. And part of the decision would be, how transformative it was. 

And, I think that most of us, most remix artists appreciate that 

and understand that and don’t actually want to exploit work commercially when—and I am speaking as a remix artist, somebody 

who is really trying to create new forums. 

Mr. GOODLATTE. Sure. Let me ask Mr. Lowery what he thinks 

about my question about whether, if you cross a certain threshold 

in terms of commercial gain, that the rules should be different. 

Mr. LOWERY. Often, I find that, although these are noncommercial works by those who remix it, they are distributed on commercial platforms. Like, for instance, I went to, I think it is 

fanfiction.com, to look at that for a minute. And, right away, there 

is advertising on that site. The problem is not with so much with, 

you know, those who create the remixes. It is that, the problem is 

that then there are these large intermediaries who then disseminate this work, who do make a profit. And they often encourage 

their users to make these remixes. Which may be fair use or may 

not be fair use, but they may be fair use when they are noncommercial. But, they become commercial, they become vacuumed 
64 

up, you know, sort of into the commercial world and then monetized. 

I have some examples on my laptop I can send to your office, if 

you like. 

Mr. GOODLATTE. Thank you. 

Mr. LOWERY. Thanks for the question though. 

Mr. GOODLATTE. I am going to—— 

Ms. NOVIK. I would say—— 

Mr. GOODLATTE. I am going to—— 

Ms. NOVIK [continuing]. If I just may add to that though, that 

that doesn’t actually change what the artist is doing. And the—— 

Mr. LOWERY. But they can still do it. It is just they don’t put it 

onto that Web site. They could still do that. It doesn’t infringe any 

rights of the remixer to continue to make that work. It is just—— 

Ms. NOVIK. It is true—— 

Mr. GOODLATTE. It is a good point for additional thought. But, 

I need to ask another question before my time runs out. 

So, I am going to ask all of you, so you are going to get another 

shot at answering a question of mine, anyway. Professor Jaszi 

states that fair use is working. So I am going to ask the rest of you 

if you believe that fair use is working for everyone or only for specific groups of users. And then we will give you the last opportunity 

to rebut what your fellow panelists have to say. And we will start 

with Professor Besek. 

Ms. BESEK. I think that fair use is working for some users, but 

it is not working for all users, and it is certainly not working for 

all right holders. One of the problems is these recent cases that 

deal with one party exploiting lots and lots of works at the same 

time are distorting fair use. The end that they want to serve, for 

example in the indexing of books or whatever, is truly a good one. 

I mean, you see these cases and you think, ‘‘What a great public 

benefit.’’ But, the question is how you get there, what is the appropriate means to that end. And I think by trying to shoehorn it into 

fair use, we are doing a disservice to the Copyright Act. And it 

would be better if we could find another way to do that. 

Mr. GOODLATTE. All right. Let me jump ahead to Mr. Wimmer, 

since I haven’t asked him anything yet. 

Mr. WIMMER. Thank you. I think it is generally working. You 

know, we look at fair use both from the offensive side and the defensive side. Newspapers and other news organizations have to employ fair use, in terms of reporting on other people’s work and 

curating other people’s content. At the same time, we try to not 

have fair use become an impediment when we have commercial appropriation of mass amounts of our content. So, our view is that it 

is generally working. This trend toward transformative use is concerning, but it has really been a fairly short-term trend in the overall path of the common law. So, we think the courts will eventually 

get it right. 

Mr. GOODLATTE. Ms. Novik? 

Ms. NOVIK. I do believe that fair use is generally working. I do, 

obviously, think that sometimes individual artists, especially those 

working on noncommercial works, are at a substantial disadvantage when they are faced with a large media conglomerate or auto-
65 

mated systems that essentially prevent them from exercising their 

fair use rights. 

Mr. GOODLATTE. Mr. Lowery? 

Mr. LOWERY. I generally believe for music it is working. I don’t 

want to get too deep into it, but I think it is the photographers who 

have probably been abused because you see plenty of—I mean, they 

are just—their business model has been really kind of wrecked by 

what I don’t think was the intent of fair use. But, I am not an expert on that. So—— 

Mr. GOODLATTE. Well, on that point, if I might, Mr. Chairman, 

do you think that Congress should set distinctions based on the 

technology area between music, photography, books? 

Mr. LOWERY. The fair use does manifest itself in different ways. 

I can’t really say that—I feel like a little out of my league on that 

legally what they should—I would be glad to think about that and 

give you a more coherent answer. 

Mr. GOODLATTE. Yeah. We would welcome anything you 

want—— 

Mr. LOWERY. Yes. 

Mr. GOODLATTE [continuing]. Any of you, want to submit—— 

Mr. LOWERY. Okay. 

Mr. GOODLATTE [continuing]. Any of these questions—— 

Mr. LOWERY. Thank you. 

Mr. GOODLATTE [continuing]. In writing. And, Professor Jaszi, I 

promised you, you would get a final word on your inflammatory 

statement. 

Mr. COBLE. And, Professor, if you could accelerate it because we 

are on a red, red light here. [Laughter.] 

Mr. JASZI. I certainly agree that there are some groups of creators who are struggling in the current marketplace. But, I don’t 

think that that struggle is really attributable to fair use, as it is 

instead to other conditions. 

I actually want to disagree, mildly, with Professor Besek about 

her example of a situation in which fair use isn’t working. Because 

I believe, in fact, that the recent mass digitization cases Author’s 

Guild against HathiTrust and Author Guild against Google, in the 

Southern District of New York, are really excellent examples of the 

doctrine fulfilling its function. In those cases, material is being dramatically repurposed for non-superseding uses. The public interest, 

as the judges in both cases have acknowledged, in those uses going 

forward, is enormous. No existing licensing structures are available 

to enable those uses. So far from thinking about mass digitization 

and all the benefits that it has brought to various communities, including the print disabled for whom it has been my privilege to 

work on these issues, I must say that I would count that as a story 

of success rather than a story of failure. 

Mr. GOODLATTE. Thank you. 

Mr. Chairman, I apologize for the extra time, but I thank you for 

it. 

Mr. COBLE. You are indeed welcome. 

The gentleman from Florida, Mr. Deutch? 

Mr. DEUTCH. Thank you very much, Mr. Chairman. 

I would like to thank the witnesses for coming and for being so 

indulgent to our schedule. Thanks for the testimony. I enjoyed 
66 

reading it. I am sorry that I haven’t been able to be here for all 

of your presentations. 

I already—I appreciate the ability to hear the lively and ongoing 

debate about what constitutes fair use. I was able to hear some of 

that. And I understood that it was a frequently litigated area of 

copyright law. But it has been especially interesting for me to hear 

the witnesses and in reading their testimony just a very small sampling of the ongoing issues of the development of the law in this 

field. 

And what hearing all of this has reminded me is how critical the 

entire previous body of law is to our current understanding of fair 

use. It is easy to forget that, by themselves, the words ‘‘fair use,’’ 

in this context, really have no meaning. Instead, fair use is defined 

only by the hundred-plus years of precedent in the United States. 

And, as someone who has followed the ongoing negotiations for 

trade deals with interest and with some concern, I am troubled at 

the suggestions that we just simply insert the words ‘‘fair use’’ into 

our IP section. 

Now, I support continuing to not only allow, but encourage a 

country to develop fair-use-style exceptions, as our previous trade 

deals have. But, what I don’t fully understand is what the words 

‘‘fair use’’ would mean, when taken away from the precedents that 

define them. And, because you can’t build that precedent into a 

trade agreement or export it, it makes it exceedingly difficult to understand how this would work. And, while our trade agreements 

allow flexibility for any countries that so desires to adopt fair-usestyle exceptions, mandating it would just provide a loophole incapable of definition through its countries who, frankly, often care little 

about IP, can excuse the lack of protection for authors. Fair use 

has no definition at all, in the context of a trade agreement. 

So, in doing just a bit of research for the hearing, I acquired 

some background materials of fair use precedent. What I got was 

a multivolume set of books. [Laughter.] 

This being just one. And I have only read a few chapters of this 

one, to be perfectly honest with you. This is the first volume. It is 

a 700-page, condensed—— [Laughter.] 

Mr. DEUTCH [continuing]. It is a 700-page, condensed version of 

our fair use law. Now, clearly, we are not seriously considering including a 700-page footnote in our trade agreements. Obviously, 

that doesn’t work. Or, in the reverse, we are not going to blindly 

assume that putting the words ‘‘fair use’’ or the four statutory factors into a trade agreement would result in the inclusion of the 

decades of precedent represented by the piles of books that are now 

sitting on my desk. 

Mr. Besek—I am sorry, Professor Besek, you discuss cases in 

which our interpretations of fair use can threaten to move the U.S. 

out of compliance with our international treaty obligations. So, 

even in the U.S. fair use law, which is quite actually fluid and 

vague on its own, if you erase all the precedent behind fair use and 

started completely from scratch in this country, would you see the 

fair use defined by future courts in the same way that it is now? 

[No response.] 

Mr. DEUTCH. Well, let me just go on. So, going further though, 

if you inserted section 107 into another country’s legal system, 
67 

without including any of our defining precedent, what is the likelihood that you would come up with remotely similar meanings as 

other governments try to flush out what this means? 

Ms. BESEK. It is certainly possible that there would be some aspects of it that would be similar. But, they have such different cultural and other factors, I don’t think there is any reason to think 

that it would track our fair use law. For one thing, one of the aspects of fair use is that it attempts to accommodate First Amendment concerns and those same concerns don’t necessarily apply in 

other countries. But, they have just come from a different tradition, 

where they have had more explicit, separate exceptions which—and 

not this general kind of catch-all exception. And so, I don’t know 

that they would necessarily treat it the same way we did. 

Mr. DEUTCH. And safe to say their explicit exceptions may fill 

volumes of their own, in those countries. 

Ms. BESEK. Probably, that is true. I mean, they tend to have 

more exceptions and more very specific exceptions. But often they 

track the kinds of things that fair use would embrace. 

Mr. DEUTCH. But it wouldn’t mean, in another country, it 

wouldn’t mean the same thing. It could easily—the concern, obviously, is that it then becomes a loophole to completely overturn 

what is a really sensitive balance that we have in this country, 

based on volumes and volumes of precedent. There is an important 

balance to be struck in our trade deals. And the words ‘‘fair use’’ 

themselves, I think, don’t bring us anything. 

Mr. Wimmer, I wonder if you would agree with that. 

Mr. WIMMER. I do agree with it. I am not a trade expert, so I 

might be getting a little bit out of my depth here. But I have done 

legal work in about 20 different countries. And there are common 

law legal systems and there are civil law legal systems. We have 

a common law legal system, and that is the way fair use has grown 

up here. That is true for England, true for Canada, true for Australia. You go to all of the civil law legal systems, where judges 

don’t have the same tradition of working to create precedent and 

expand precedent over time, and they really can’t cope in the same 

way with these types of common law doctrines in a civil law society 

as we can. It is hard for me to see it working, truthfully. 

Mr. DEUTCH. Thanks, Mr. Wimmer, you may not be a trade expert, but your insight, I think, is right on point and was helpful. 

And I appreciate the Chairman. And I yield back. 

Mr. COBLE. I thank the gentleman. 

I am told the gentleman from Missouri has no questions. 

I want to thank all the witnesses and those in audience, because 

your presence here indicates more than a casual passing interest 

in this very important issue. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

The hearing is adjourned. 

[Whereupon, at 3:34 p.m., the Subcommittee was adjourned.] 

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