Aug 162016

butler150px[Reposted from the author’s blog, here. (CC-BY)] The Copyright Office is poised to issue a total rewrite of Section 108 of the Copyright Act, which protects library and archives’ copying for preservation and research. Libraries and archives have said they do not want this, but the Office seems to be determined to do it. So, a group of Deans and Directors of Virginia university libraries has sent a letter to House Judiciary Chairman Bob Goodlatte (R-VA!) to ensure he realizes the controversy and context that surrounds the Office’s proposed changes. If you are a concerned library or librarian, consider writing your representative, especially if they sit on the Judiciary Committee. Continue reading »

Feb 022016

butler150pxThe Trans-Pacific Partnership (“TPP”) is a massive new trade agreement recently negotiated between the US and a host of countries including Australia, Japan, Canada, Mexico, Singapore, and Chile. The TPP’s IP Chapter (PDF) includes a series of provisions that address rightsholder abuse. While the agreement’s acknowledgment of abuse is salutary, and the protections it affords to users are real, these provisions rely largely on the discretion of judicial or administrative authorities, making the agreement’s protections for users less certain than protection for rightsholders. Continue reading »

Jan 222016

butler150px(Cross posted from, Link] In October 2015 the Librarian of Congress issued an important new rule permitting faculty and staff creating MOOCs (massive open online courses) to copy short clips from video media protected by digital locks. The rule was the result of a petition brought by clinic students Mark Patrick and Sarah O’Connor on behalf of Peter Decherney, Professor of Cinema Studies and English at the University of Pennsylvania, the College Art Association (CAA), the International Communication Association (ICA), and the Society for Cinema and Media Studies (SCMS). The rule may be the first official acknowledgment that MOOC courses are appropriate venues for the fair use of copyrighted media, including video content. Continue reading »


Leval on Fair Use and Google Books: A Sketch of a Story

 Posted by on November 16, 2015  Comments Off on Leval on Fair Use and Google Books: A Sketch of a Story
Nov 162015

butler150px[Reposted from TechDirt, Link] Last Thursday, Judge Pierre N. Leval, a renowned fair use scholar and judge on the Second Circuit Court of Appeals in New York, delivered the Fourth Annual Peter A. Jaszi Distinguished Lecture on Intellectual Property (you can watch the recording at that link) at the law school where I teach, the American University Washington College of Law (whew). “Lecture” doesn’t really do it justice, though; Leval may have spoken in front of a lectern at a law school, but what he said was hardly dry or academic. Instead, it was a bravura exercise in storytelling, which is fitting, as storytelling and narrative are some of Peter Jaszi’s favorite subjects, second only to fair use. Continue reading »

Oct 292015

butler 150x225[Cross posted from, Link (CC-BY)] For the last few decades, the United States has been aggressively and systematically “exporting” half of its copyright system. In treaties and in trade agreements, the US has insisted on longer terms of protection, stiffer penalties for infringement, legal protection for digital locks, and a variety of other measures designed to benefit copyright holders. Only recently, however, has the US even acknowledged the part of its copyright law that protects the public, including schools, libraries, technologists, and entrepreneurs, against overreaching copyright laws.

We in the US have known all along, however, that the real secret of the US’s relative success in both the culture and technology spheres is the balance to copyright protections provided by limitations and exceptions, especially the fair use doctrine. Continue reading »


Google Books and Feist-y Fair Use

 Posted by on October 16, 2015  Comments Off on Google Books and Feist-y Fair Use
Oct 162015
Photo by Beth (CC-NC-ND)

Photo: Beth (CC-NC-ND)

Judge Pierre Leval’s opinion today in the Google Books case offers another fascinating glimpse into the richness of his thinking about the concept of fair use. (For more, be sure to attend (or stream) his talk at WCL’s Fourth Annual Peter Jaszi Lecture on November 12.) A law review article by then-district court Judge Leval was the source of the now-dominant theory of fair use, grounded in a concept he called “transformative use,” an idea later adopted wholesale by the Supreme Court in Campbell v. Acuff-Rose and spread throughout the land in subsequent cases.

Although the outcome in Google Books (Google wins, duh) was obvious to anyone whose paycheck didn’t depend on their believing otherwise, the discussion that gets us there sheds light on a host of hot fair use topics in ways that courts and copyright wonks will be citing and unpacking for years to come. In a later post I’d like to explore the ways Judge Leval managed to weigh in on a remarkable number of fair use controversies over the course of a single opinion.

For now, though, rather than take a grand tour of all the nooks and crannies of the opinion, in this post I want to make my first foray into the text by highlighting one big idea that I think is woven throughout the fabric of the opinion in a fundamental way: the distinction between protected expression and unprotected facts. Continue reading »


ARSC Guide to Audio Preservation — Council on Library and Information Resources

 Posted by on June 3, 2015  Comments Off on ARSC Guide to Audio Preservation — Council on Library and Information Resources
Jun 032015

butler150px[Cross posted from] Yesterday an exciting new (free!) book was published to provide expert advice on a wide range of issues relevant to anyone who cares about (and especially those who care for) sound recordings. The ARSC Guide to Audio Preservation was made under the auspices of the Association for Recorded Sound Collections and the Council on Library and Information Resources with funding from the Library of Congress. I have two contributions about the legal dimensions of this important work. Continue reading »

May 292015

butler150px[Cross posted from, Link, (CC-BY)]  Wednesday was day two of the Washington, D.C. portion of the triennial rule making to determine whether breaking digital locks that block copying from DVDs, Blu-ray, and other digital media should be allowed in a series of defined cases. There was also a series of hearings in Los Angeles, CA, last week to address some of the proposals with mostly West Coast-based proponents and opponents. There were some intriguing rays of hope in Wednesday’s hearing in DC. Continue reading »


Busting a Copyright Myth-buster

 Posted by on April 27, 2015  Comments Off on Busting a Copyright Myth-buster
Apr 272015

butler150px[Cross posted from]  In a recent listicle on Medium, the Canadian writer John Degen, executive director of the Writers’ Union of Canada, described what he characterized as “5 Seriously Dumb Myths About Copyright the Media Should Stop Repeating.” Of course, Degen’s post takes aim at the usual straw man, a mythical “free culture” movement that hates all copyrights and wants them abolished. As a result, he ignores the complexity of the debate over copyright’s genuine costs and the real contributions of scholars who have shown the harm that unrestrained copyright can do. Continue reading »


Is Fair Use a “Dangerous Exception”?

 Posted by on March 30, 2015  Comments Off on Is Fair Use a “Dangerous Exception”?
Mar 302015

butler150pxIn a recent white paper, Geoffrey Manne and Julian Morris argue that fair use is a “dangerous exception” that should not be “exported” to our trade partners through trade agreements the way other aspects of US copyright law (such as our lengthy term and protection for digital rights management) have been spread for years. Their salvo, grounded in a “law and economics” framework, is just the latest in what will surely be an ongoing series of attacks on fair use and similar flexible exceptions, a response to the growing appetite for balance in the global IP system. (Indeed, the industry-sponsored advocacy group Copyright Alliance posted its own ambivalent warning about “exporting fair use” just the other day.) Continue reading »


Transformative Teaching after GSU

 Posted by on October 23, 2014  Comments Off on Transformative Teaching after GSU
Oct 232014

butler150px[Cross posted from, Link, (CC-BY)] When can teachers share copyrighted works (or excerpts therefrom) with students without payment or permission?

While other parts of the law come into play in narrow contexts, this is primarily a question about the scope of the doctrine of fair use. Educators have struggled with the dimensions of fair use for decades, and we are now at a pivotal point in that struggle. Friday’s decision from the 11th Circuit Court of Appeals in the Georgia State e-reserves case may be the last word on this issue for a long time. What does it say? Continue reading »