Consent, User Reliance, and Fair Use

INTRODUCTION I. FAIR USE BASICS II. THE STANDARD VIEW: CONSENT IS IRRELEVANT A. The Seeming Logic of the Standard View B. Critiques of the Standard View III. THE CASE FOR CONSENT AS A FAIR USE FACTOR A. Efficiency and Incentives B. The Equitable Component of Fair Use C. Summary IV. A TYPOLOGY OF CONSENT AND REFUSAL A. Quantitative Dimension B. Qualitative Dimension V. CASE STUDIES A. Opt Out Systems and Information Aggregation B. Partial Consent and User Reliance Interests C. Impossibility and Orphan Works D. "Purloined" Copies and Bad Faith VI. COSTS AND CONCERNS A. Unpredictability in Application B. Judicial and Evidentiary Costs C. Inhibiting "Tolerated Uses" D. Interaction with Implied License and Other Doctrines CONCLUSION INTRODUCTION Copyright law's fair use doctrine relies on what might be termed a binary notion of consent and refusal. If a copyright holder has given affirmative consent to a use of her work, then the use is permitted as authorized. All other cases short of affirmative consent are treated equivalently--as a refusal. As a formal matter, the fair use inquiry thus ignores the qualitative difference between, say, an express rejection of a proposed use on the one hand, and mere silence from a copyright holder on the other. This deficiency is odd given that fair use was historically described as premised on the "implied consent" of the copyright owner to reasonable uses. (1) As fair use doctrine has evolved, however, this notion has been discarded as a legal fiction. (2) Instead, judicial attention has focused on a mechanical application of the four statutory fair use factors. (3) Under the prevailing view of fair use, unless a copyright holder gives actual consent to a use, her prior conduct indicating approval or disapproval, and the reasons for her ultimate refusal, are irrelevant. (4) Two examples may help illustrate the state of the law. Consider first the pending legal challenge to the Google Books project. (5) That case presents the question of whether Google Books--which makes the text of millions of books digitally searchable--should be permitted as a fair use, or enjoined as an infringement of authors' copyrights. (6) In constructing this massive information aggregation system, Google takes some care to accommodate differing levels of consent from copyright holders. Books in the public domain are available for download in their entirety. For in-copyright works, the default is to allow a "snippet" view: The full text is searchable, but only a line or two of text around the search term is displayed in response to a search query. (7) If the copyright holder allows it, Google will show more of the work, perhaps a "preview" of several pages from the book. (8) In contrast, if the copyright holder specifically objects, Google will not display even the snippets. (9) The significance of this "opt out" structure presents something of a puzzle. Intuitively, if the fair use inquiry reflects an assessment of the social value of a use, the opt out functionality seems relevant. It provides a way to realize the benefits of the Google Books project while still allowing objecting rightsholders to easily choose not to participate. But if Google Books' snippets are a fair use, Google is free to override the wishes of the copyright holder. It should not matter whether a given author objects, or had an earlier opportunity to opt out of the project. on the standard view of fair use, Google's good-faith attempt to accommodate competing interests by providing an opt out is irrelevant to whether its use is fair. (10) Indeed, in reaching its conclusion that Google Books was a fair use, a recent court decision completely ignored this opt out structure. (11) For a more analog example, consider the facts of Peter Letterese & Associates v. World Institute of Scientology Enterprises (12) In that case, the user--the Church of Scientology--had adapted aspects of a copyrighted sales manual into its training manuals. …