There appear to be four fair-use factors—just not the four specified in § 107. To begin with, the first and fourth factors (broadly, the "commercial necessity" factors) generally get conflated and weighed as at least half of the fair use equation. P10 v Google is an excellent example of this; Judge Matz's decision is a classic example of counting the same "facts" twice in his analysis of the first and fourth factors. What this basically says is that, with only very rare exceptions, the first and fourth factors will point the same way anyway.1 It also gets into the "fifth fair use factor"—the one that the Copyright Office's Orphan Works Report didn't quite acknowledge was driving the entire inquiry: administrative convenience.
The comments are littered with examples of situations where the trail ran cold, turned into a dead end, or simply involved more time and money than the user was willing to spend. Often the user can incur substantial costs without any guarantee that the search will produce information that provides a clear chain of title. Some searches turn into outright investigations.
Register of Copyrights, Report on Orphan Works 32 (2006).
I find two elements of the P10 v. Google decision rather insidious:
- The presumption that when one puts anything on the web, one automatically loses the opt-in presumptions of permissions and fair use in copyright law. Consider, for example, P10's magazines. Nobody in his/her right mind would claim that he or she can freely reprint, "thumbnail index," or whatever those photos merely because the magazine doesn't contain the equivalent of a robots.txt file that explicitly says they can't. This is instead a serious flaw in Internet protocols that could be seamlessly fixed at the design level; instead, we're stuck dealing with a massive "social engineering" issue.
Unfortunately, as the passage in the Register's report quoted above indicates—and it is a representative passage in that document, not a unique one—"administrative convenience" is, for purposes of resolving specific disputes over reuse of copyrighted material, a substantial factor in the fair use equation. Just because it isn't cited in § 107 doesn't mean it's not there.2
- Lurking underneath the opinion one can spot the "free advertising" theory dressed up in new rhetoric. I was under the <SARCASM> (apparently mistaken) </SARCASM> impression that Grokster (and, for that matter, Tasini at n.6) renounced that theory as inapposite with copyright law.
In economic terms, the "pro-'net" position is that costs of search and permissions—which, for physical media, have always been borne by the potential user—must be shifted to the copyright holder. To say the least, this is inconsistent with the aims of Berne, of the IP Clause, and of the Statute of Anne. If that's the direction we want to go as policy, so be it; however, I resent the rhetorical excesses used by Certain Commentators Based on the Left Coast (and there is more than one) to disguise that this is indeed a paradigm shift that radically restates, revalues, and reduces creators' rights.
- I would even infer that any indexing or referencing system does so inherently, but I'm still thinking through that.
- Some might argue that administrative convenience is just one subelement of the fourth factor (the effect on the market). Perhaps, in its original conception, it is; of course, that original conception predates even the ancestors of the 'net by over a decade in statutory terms, and over a century in doctrinal terms. However, in resolving particular disputes "administrative convenience" has become much, much more than that. For example, the logic in Grokster eventually reduced to the question of who shall bear the administrative costs. The Court held, implicitly, that the party doing (or facilitating) the copying still must bear those costs. The 'net community hasn't accepted (or even acknowledged) that; instead, as the rhetoric quoted in the Register's report above implies, is assumes that the holders must bear those costs, and treats anyone who dares object as a Luddite. This was all too apparent at the Orphan Works Roundtables… of which more when I finally finish this article.