When we talk about fair use, an important principle to keep in mind is don't rely on it, don't trust it. Use it, but don't trust it. Why? Because it's complicated. Because it's not clear. You don't know how a judge will rule. And judges sometimes disagree. A great case on this that illustrates the complicated nature of a fair use defense was a classic case. An important case in the history of fair use was Sony being sued by a motion picture studio for creating the VCR. The Sony Betamax VCR was created, and the movie studio said recording something off of TV is a violation of our copyrights. We didn't give you the permission to copy a TV show. And that which is not permitted is protected under copyright law. So, we didn't give you permission to copy the TV show. Sony created this device which allows people to make copies of TV shows and they sued Sony because they said Sony is not directly making copies but Sony is enabling other people to make copies and therefore, is vicariously liable for copyright infringement. So, we're going to sue Sony. What happened in this important case? Well, this gets to the point of is videotaping legal in your home, and this was important. Universal Studios said, no, you're violating our reproduction rights. You don't have a right to make a copy of our TV show. They said Sony is vicariously liable because they contributed to end users infringements. They made it possible for them to infringe. And the TV show is not a sale, so you don't have the right To make a copy, you don't even own it. It's only licensed for a single showing by a TV station where they air commercials to pay for that showing. It's not a sale, so there's no first sale defense here and. They say, there's no defense for this, you violated our rights. You're liable. Sony says, wait a minute, we do have a defense, Fair Use. They say, you say we're vicariously liable because we permitted customers to do something which violates copyright law. We say as Sony, that our customers were not violating copyright law. They were doing something which is fair. And they said the purpose of use is personal use in the home to time shift. This was an argument the courts liked. The justices like. They said, time shifting means you could've watched it but you were kind of busy then, so you've recorded it and watched it later. You didn't do anything you weren't otherwise able to do, you were simply shifting the time of your viewing. You still saw the commercial, you still saw the show, it's the same thing it's just at a different time. So, they like that argument and they liked that it was a personal use in home. Nature of the work does not help Sony. TV shows, fiction, no the argument was made well some things they're doing might be facts. Maybe they're recording a news show. That's great, but doesn't really help their case because even if they're only doing a few TV shows that are fiction, that's enough to be a copyright violation. And certainly, some of what people are copying for some people is fiction. Therefore, It's well protected and they're losing on this part of the Fair Use defense. The proportion taken, shoot, we've lost on this one, too. 100%, we recorded the whole TV show most of the time. So proportion taken didn't help them. So, Sony has two strikes against them under Fair Use. Two things they're not doing well on. And then, the court said what about economic harm? And there was a lot of discussion of economic harm. And the argument was, this isn't harming the studios. This isn't harming the copyright owners. The viewer is watching it at a different time, but the commercials are still being seen, they're part of this, so the studios or the TV stations still get their revenue. If the TV station is still getting money because advertisers think it's beneficial, then the studios can charge more, they have a bigger viewership. And so, this is a good thing. Well maybe it's a good thing, maybe it's a bad thing, maybe it hurts some DVD sales. You've copied all the episodes of the original Star Trek from TV shows that are airing every day on the air, and now you don't have to buy the series. Maybe, but maybe you want the original series because it's got some extras or because it doesn't have commercials, or it's a better version. It's better quality. But anyway, the argument was there's no economic harm. This isn't a bad thing. So now, we have a complicated case here because basically purpose of use for the consumer is not to make money, it's for home use. Private home use for time shifting. And there appears to be low economic harm or maybe no economic harm. But the other two factors are highly against Sony and their customers. So, what happened? In the first case, we have a district court that says, no, we're going to rule in favor of Sony because this is home use and it looks like fair use defense. And then, the studio appealed. They went to the next level court, to the appeals court. And the studios in the circuit court where they appealed this won. Because the appellate judge said no, I don't think this is fair use, this is clearly a violation of copyright and it's not fair use. Now, how can one judge say it is fair use and another judge say it's not? Because it's a matter of personal interpretation or judgment, that what judges do. They issue judgments, which means they look at all the facts and they make a decision. We already saw it's tied two to two on the Fair Use issues. And you may look and say how important is one or the other And a judge may say no I think the proportion taken is the biggest thing. A different judge says no I think the economic factors are the most important thing. And there's no rule in law that says which is the most important. It's up to the judge. In the Appeals Court, the judge says no I don't see this as Fair Use. The Supreme Court supported Sony. But it was an interesting ruling. Now this is 5 to 4 which means it's close. In fact, it was so close that originally it was 5 to 4 against Sony. They were going to rule that it was not Fair Use. But in writing up the opinions, one of the justices switch sides. And so it ended up being in favor of Sony, but it was really, really close. It could have gone either way. This is right on the borderline of what's allowed, what's not allowed, what's fair use, what's not. And the fact that it's on the borderline is particularly interesting, because it helps you understand where fair use might or might not work. It also tells you it could go either way. Depends on the judges. So, now we have the law. Home videotaping is legal. It's done. We have that law, we have that decision. But it was close. A summary of Fair use. It's a defense. It's not a right. You only assert it when you go to court and you're defending your actions which were against the other person's right. It's complicated. It's hard to predict. Therefore, don't rely on it. Because it's complicated. You need to apply a balancing test of different factors. You don't know how the judge is going to weigh one factor versus the other. He will weigh them against each other. But judges may have different interpretation of what they think is most important. And they may even interpret each case differently. And say in this case, I think economics is the most important factor. But in that case, parody is the most important factor. So, we look at these balancing tests and sometimes Fair Use might be unfair. The ruling may be inconsistent or different from one judge to another. And it's almost always the case the party losing thinks the fair use defense, whether it worked or not, was unfair. Thank you. [MUSIC]
