Transformative Use vs. Fair Use?

Here’s another thing I disagreed with in this week’s podcast, from Solveig:

I think fair use often gets used very broadly as a generic term for any kind of limitation or exception to copyright law. But properly understood, the argument that fair use can evolve away and needs to change over time is really a pretty narrow one. It doesn’t mean that there shouldn’t be outer limits to copyright or that there can’t be exceptions to copyright. It just means that they don’t necessarily need to take the form of fair use. For example, there’s a hugely important outer limit that you can’t copyright ideas or facts. That’s not fair use, that’s just: copyright law doesn’t go there. Transformative use, another one. That’s not fair use, that’s transformative use.

Is that sentence right? My understanding is that the concept of “transformative use” comes from the 1994 Campbell decision, which concerned the fair use of parody. In particular, Justice Souter wrote that whether or not a work was transformative lay at the heart of determining “the purpose and character of the use,” the first and most important of the four fair use factors. For example, Judge Nelson quotes the Campbell decision in holding that displaying thumbnails in a search engine is a transformative use, and therefore fair.

I’m not aware of any caselaw involving “transformative use” being a separate category from transformative use. Can the lawyers in the audience tell me if I’m missing something?

In any event, the broader point here is that fair use is not simply “the right to quote up to 50 words in a news story or book review.” Nor is it simply the right to excerpt 5 seconds of a song or 10 seconds of a movie. Rather, it’s a broad principle that encompasses a wide variety of different activities, including quoting and excerpting, time- and place-shifting, reverse engineering, creating emulators, storing thumbnails, creating parodies, and more. As Solveig herself acknowledges a little later in the podcast, at least one of these (parody) can’t be encoded into DRM logic.

Which makes the statement that fair use is obsolete kind of silly. Certainly, technological changes might persuade courts that certain activities previously considered fair use are no longer fair. But it’s also creating new examples of fair use, like search engines. The dynamism of modern technology is a good argument against trying to pigeonhole fair use into a static list of use cases that can be expressed in a digital format and enforced by a DRM scheme.

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