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Kernochan Center for Law, Media and the ArtsColumbia Law SchoolBefore theU.S. COPYRIGHT OFFICENoncommercial Use of Pre-1972Sound Recordings That Are NotBeing Commercially ExploitedDocket No. 2018-8Comments of the Kernochan Center for Law, Media and the ArtsColumbia Law SchoolThe Kernochan Center for Law, Media and the Arts appreciates the opportunity to respond to the Notice of Inquiry concerning Noncommercial Use of Pre-1972 Sound Recordings That Are Not Being Commercially Exploited, published by the U.S. Copyright Office, 83 Fed. Reg. 52,176 (Oct. 16, 2018). The Kernochan Center for Law, Media, and the Arts at Columbia Law School is one of the leading centers for intellectual property research in the United States. ?Its faculty and staff dedicate their research and writing to copyright, trademarks, and related areas as they concern traditional and emerging media, entertainment and the arts. ?The Center offers students an in-depth program of instruction, lectures, internships and externships while providing symposia, lectures, research studies and publications to the broader legal community. ?Founded as the Center for Law and the Arts, it was renamed in 1999 to honor Professor John M. Kernochan, its founder and a pioneer in teaching copyright in American law schools. ?These Comments focus on a single multi-part question in the Notice of Inquiry.Question B1: Should the Office provide guidelines as to what constitutes a “noncommercial” use, and if so, what? In answering, consider that “merely recovering costs of production and distribution of a sound recording resulting from a use otherwise permitted under this subsection does not itself necessarily constitute a commercial use of the sound recording,” and “the fact that a person engaging in the use of a sound recording also engages in commercial activities does not itself necessarily render the use commercial.”For example, should the online use of a work where the user receives website advertising revenue be considered “commercial”? Should a prospective user be asked to disclose whether they are an individual, or whether they will operate as a commercial or noncommercial entity?First we will look at other sections of the 1976 Copyright Act (hereinafter “the Act”) where commercial or noncommercial use is mentioned. Next we will examine how courts have defined commercial use without a statutory definition. Finally, we will discuss issues the USCO might consider when deciding whether or not it should define what constitutes noncommercial use in the new section 1401 and what information we think a perspective user should be asked to disclose when filing a notice to use a recording. Use of Terms “Commercial” and “Noncommercial” in the Copyright ActNeither commercial nor noncommercial use are defined in the Act. The word “commercial” appears in a number of sections, but none define the term. Even section 107, in which the use of commercial and nonprofit is arguably most akin to the new language of section 1401, does not define the term “commercial nature,” and, although it does not use the term “noncommercial”, it does not define the term it does use, “nonprofit educational purposes.” Certainly courts have attempted to define the term commercial as used in section 107, and we will discuss that in Section II. Sections 109 and 122 use the term noncommercial, but only to describe educational stations eligible to transmit secondary transmissions of broadcast programming on cable. In short, there is no precedent in the text of the Act for the USCO to rely on in defining the terms “commercial” or “noncommercial.” Court Interpretations of the Words “Commercial” and “Noncommercial” in Copyright CasesDue to the lack of statutory definition, courts have had to define commercial and noncommercial in copyright disputes, most often in decisions involving section 107. In A&M Records, Inc. v. Napster, Inc., the US District Court for the Northern District of California admitted that Napster’s use of copyrighted songs wasn’t traditional commercial activity, as the plaintiff could not prove that Napster users were downloading the songs in order to sell them. Nevertheless, the court ruled that Napster’s use of the works was commercial as its users were widely sharing the songs with other Napster users rather than keeping them for personal use. In Perfect 10 v. Google, Inc., the US District Court for the Central District of California ruled that Google’s use of Perfect 10’s images in Google’s Image Search feature was commercial as the pictures’ presence increased Google’s revenue from advertising. Some courts have defined commercial use quite broadly. In Roy Exp. Co. Establishment of Vaduz v. CBS, the Southern District of New York found the nature and character of CBS’ use of Charlie Chaplin films in the network’s obituary to be commercial, even though the clips were part of a special news broadcast. They reasoned, “CBS stood to gain at least indirect commercial benefit from the ratings boost which it had reason to hope would (and in fact did) result from the special.” Conversely, the court in North Jersey Media Group, Inc. v. Pirro ruled that the defendant’s posting of a copyrighted image on her social media page was not per se commercial, writing, “The mere fact?that Fox News operates a for-profit news service, and that the Pirro Facebook Page is intended to capture revenues for the network, is insufficient for a finding in Plaintiff's favor.” The Second Circuit has consistently recognized that "[a]lmost all newspapers, books and magazines are published by commercial enterprises that seek a profit,” and has discounted this consideration where the link between the defendant's commercial gain and its copying is attenuated such that it would be misleading to ?characterize the use as commercial exploitation. Courts have ruled that monetary gain is not necessary for a work to be deemed commercial. In Weissman v. Freeman, the defendant published a scholarly article partly based on research done jointly with the plaintiff, but without crediting the plaintiff. The court wrote, “Monetary gain is not the sole criterion. Dr. Freeman stood to gain recognition among his peers in the profession and authorship credit with his attempted use of Weissmann's article; he did so without paying the usual price that accompanies scientific research and writing, that is to say, by the sweat of his brow. Particularly in an academic setting, profit is ill-measured in dollars. Instead, what is valuable is recognition because it so often influences professional advancement and academic tenure. The absence of a dollars and cents profit does not inevitably lead to a finding of fair use.”Courts have generally found that it is not the type of business but the use that business is making of the work which determines whether the use is a noncommercial use or a commercial one. For instance, in Byrne v. British Broadcasting Corp., the court for Southern District of New York held that despite the nonprofit status of the BBC, the proper inquiry was into “the purpose and character of the use, not that of the alleged infringer.” III. Advantages and Disadvantages to Providing a Definition of NoncommercialGiven the courts’ differing conclusions as to what constitutes commercial versus noncommercial use, it would appear that any attempt by the USCO to define noncommercial in relation to section 1401 is a complex proposition. Some commenters to this NOI have provided what they see as reasonable definitions of the terms. One comment proposed a definition of commercial use as any use that results in commercial advantage or monetary or non-monetary compensation. Not only is this definition broad, but it also fails to clarify matters, since it raises questions as to what is “compensation” (is engendering good will compensation?), and what is “commercial advantage” (what does one have to show to prove commercial advantage?). Does receiving revenue from advertising placed against a website demonstrate that the website is commercial? Some service providers have created minimum thresholds for when they will partner with a user to monetize the user’s content. For example, to monetize one’s posts on YouTube, a user must have had at least 1,000 subscribers and 4,000 hours of Watch Time within the past 12 months. When a user is earning revenue from advertising against particular content, that would seem to be commercial use. While setting a standardized baseline as to what is commercial use sounds attractive due to its specificity, service providers vary in whether they share ad revenue and on what terms. Furthermore, private actors often create these standards with their own goals in mind, and each has a different threshold. It is hard to think what justification the USCO would have in choosing one standard over another. It is true that if the USCO does not define the term noncommercial, private actors and the courts will step in to offer their own interpretations. Multiple advocacy groups have already stepped in to provide guidelines on fair use. These projects, however, often reflect a viewpoint to which not everyone subscribes. In the alternative, allowing courts to determine the definition can lead to the diverse opinions discussed above, leaving plaintiffs and defendants without clear guidance. Furthermore, any definition courts provide will be fact-specific and, therefore, of less use in establishing a nationwide standard.One concern we have is that any definition that the USCO might establish in this context could affect the interpretation of other uses of the terms commercial or noncommercial in the Act. Of course, any language that is drafted should explain that the definition is to be used only in determining whether use of pre-1972 sound recordings under section 1401 is noncommercial. While courts might still apply the definition to other portions of the statute, this is less likely if the definition has this explicit limitation.IV. Should a Perspective User Be Asked to Disclose Whether They Are an Individual, or Whether They Will Operate as a Commercial or Noncommercial Entity?We believe it is reasonable for the USCO to ask perspective users of pre-1972 sound recordings whether they are an individual or corporate entity as that information might be useful to authors searching the listings. We do not believe, however, it would be useful to ask if the prospective use is to be commercial or noncommercial due to the varying definitions of those terms, both in the jurisprudence and in personal opinion. What perhaps might be most useful for authors in determining whether to object to the proposed use might be to ask prospective users to indicate if they are a tax-exempt organization as defined under the Internal Revenue Code. This is not only a clear standard, it is also easily verifiable by others. Assuming that the goal is for authors to be able to gather some idea as to the use without reading the whole record, we believe this information would be the most telling, although not dispositive.* * *Once again, we would like to reiterate our thanks to the USCO for allowing us to comment on this newest portion of the Copyright Act. Please contact us if you have any questions concerning these comments.Respectfully submitted,Philippa S. LoengardDeputy Director, Kernochan Center for Law, Media and the Arts ................
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