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Lawful Personal Use

Jessica Litman*

We are perfectly fine with personal use.
—Mitch Bainwol, Recording Industry Association of America, 20051

Despite having sued more than 20,000 of its customers,2 the recording
industry wants the world to know that it has no complaint with personal use.
Copyright lawyers of all stripes agree that copyright includes a free zone in
which individuals may make personal use of copyrighted works without legal
liability.3 Unlike other nations, though, the United States hasn’t drawn the
borders of its lawful personal use zone by statute.4 Determining the
circumstances under which personal use of copyrighted works will be
deemed lawful is essentially a matter of inference and analogy, and
differently striped copyright lawyers will differ vehemently on whether a
particular personal use is lawful or infringing.5



* Professor of Law, University of Michigan. An unusually large number of people have
helped me come to grips with this topic. I owe particular thanks to Jon Weinberg, Graeme
Dinwoodie, Nina Mendelson, Julie Cohen, Pamela Samuelson, Rebecca Tushnet, Roberta Kwall,
Joseph Liu, Sara Stadler, Jonathan Cohen, Kenneth Alfano, Peggy Radin, and Jane Ginsburg whose
questions caused me to rethink crucial questions and come up with different answers. I also want to
thank Claire Chandler for showing uncommon patience.

1. Mitch Bainwol, Chairman and CEO, Recording Indus. Ass’n of Am., State of the Union
Panel Discussion at the Future of Music Coalition Fifth Annual Policy Summit (Sept. 12, 2005),
available at http://www.futureofmusic.org/audio/summit05/panel04.stateofunion.mp3.

2. Jefferson Graham, RIAA Chief Says Illegal Song-Sharing “Contained,” USA TODAY, June
13, 2006, at B1, available at http://www.usatoday.com/tech/products/services/2006-06-12-riaa
_x.htm; Electronic Frontier Foundation, How to Not Get Sued for File Sharing, http://www.eff.org/
IP/P2P/howto-notgetsued.php.

3. Professor Marci Hamilton coined the phrase “free use zone” to describe these uses. See
Marci A. Hamilton, The TRIPS Agreement: Imperialistic, Outdated, and Overprotective, 29 VAND.
J. TRANSNAT’L L. 613, 615 (1996) (“While the corporeal universe has permitted Western societies
to receive and copy large numbers of copyrighted works for free . . . the on-line era raises the
possibility that the publishing industry can track every minuscule use of a work and thereby turn the
free use zone into a new opportunity for profit.”).

4. Two examples of the many countries with statutory personal use provisions are Canada and
Norway. See, e.g., BMG Canada Inc. v. Doe, [2004] F.C. 488 (Fed. Ct.) (applying the Canadian
Copyright Act to determine “downloading a song for personal use does not amount to
infringement”); Tarja Koskinen-Olsson, The Notion of Private Copying in Nordic Copyright
Legislation in the Light of European Developments During Recent Years, 49 J. COPYRIGHT SOC’Y
U.S.A. 1003, 1003 (2002) (“Copying for private use has traditionally been free in all Nordic
copyright legislations.”).

5. See NAT’L RESEARCH COUNCIL, THE DIGITAL DILEMMA: INTELLECTUAL PROPERTY IN THE
INFORMATION AGE 129 (2000) [hereinafter THE DIGITAL DILEMMA] (“The extremes of the
positions on this issue are well established . . . . Some rights holders . . . believe that all . . .
unauthorized reproduction of their works, whether private or public, commercial or noncommercial,
is an infringement. Many members of the general public . . . believe that all . . . private,
noncommercial copying of copyrighted works is lawful.”). Compare, e.g., Neil Weinstock Netanel,

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1872 Texas Law Review [Vol. 85:1871


The dispute is not simply a question of where one lives on the copyright
food chain. The contours of lawful personal use are fuzzy as well as
contested.6 Every time a study of copyright law queries the scope of lawful
personal use, it concludes that the answer to the question whether any par-
ticular personal use is lawful is indeterminate.7 Wherever the fuzzy borders
of lawful personal use lie, however, most would agree that the lawful per-
sonal use zone is shrinking.

Congress has significantly expanded the breadth of copyright protection
in the past few decades; some of that expansion has come at the expense of
personal use.8 The proliferation of digital technology has made personal use
both easier to track, trace, and charge for,9 and a more formidable threat to
conventional commercial exploitation of copyrights.10 Copyright owners
have therefore launched a variety of initiatives to replace unmetered and un-
monitored personal uses with licensed ones. They have demanded the
restraint of unauthorized personal use as a necessary step in encouraging the
new commercial services to flourish.11 Meanwhile, individuals’ claims to
make personal copies and pass them on to friends and family seem more



Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 300 (1996) (“[C]ourts have
generally declined to find personal copying as infringing.”), with Jane C. Ginsburg, From Having
Copies to Experiencing Works: The Development of an Access Right in U.S. Copyright Law, 50 J.
COPYRIGHT SOC’Y U.S.A. 113, 120 (2003) (“U.S. and international copyright law have increasingly
recognized that the author’s right to authorize, or at least to be compensated for, the making of
copies, extends . . . to end-users who make individual copies for private consumption.”).

6. See Jessica Litman, War Stories, 20 CARDOZO ARTS & ENT. L.J. 337, 338, 338–50 (2002)
[hereinafter Litman, War Stories] (“[T]he question whether individuals are liable for copyright
infringement when they make unauthorized uses of copyrighted works has no clear answer.”).

7. See OFFICE OF TECH. ASSESSMENT, COPYRIGHT AND HOME COPYING: TECHNOLOGY
CHALLENGES THE LAW 5, 5 14 (1989) (“The problem of private use arises because its legal status
is ambiguous.”); THE DIGITAL DILEMMA, supra note 5, at 135, 129 36 (“This report cannot resolve
the debate over private use copying.”); Alan Latman, Fair Use of Copyrighted Works, in 2 STUDIES
ON COPYRIGHT 781, 789–90 (Copyright Soc’y of the U.S. ed., 1963); Borge Varmer,
Photoduplication of Copyrighted Material by Libraries, in 2 STUDIES ON COPYRIGHT, supra, at
813, 817 (“It may be that copying for one’s own private use . . . is sanctioned by custom . . . .”).

8. E.g., Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998)
(codified as amended in scattered sections of 17 U.S.C. (2000)); No Electronic Theft (NET) Act,
Pub. L. No. 105-147, § 2(a)–(b), 111 Stat. 2678, 2678 (1997) (codified at 17 U.S.C. §§ 101, 506);
Computer Software Rental Amendments Act of 1990, Pub. L. No. 101-650, §§ 801–05, 104 Stat.
5089, 5134–37 (codified at 17 U.S.C. § 109); Record Rental Amendment of 1984, Pub. L. No. 98-
450, § 2, 98 Stat. 1727, 1727 (codified at 17 U.S.C. § 109).

9. See, e.g., Sonia K. Katyal, Privacy vs. Piracy, 9 INT’L J. COMM. L. & POL’Y (SPECIAL ISSUE)
1, 7 (2004–2005) (“[P]rivate entities have successfully monitored transmissions in cyberspace to
control uses of their copyrighted materials.”); Jessica Litman, Reforming Information Law in
Copyright’s Image, 22 U. DAYTON L. REV. 587, 606, 602–13 (1997) [hereinafter Litman,
Reforming Information Law] (“[T]he Internet has made it simpler to prevent, detect and avenge
unauthorized copying.”).

10. See, e.g., Ginsburg, supra note 5, at 114, 113–14 (“[D]igital media and communications
made it even easier for consumers to create physical copies of any kind of work . . . .”).

11. See, e.g., Am. Library Ass’n v. FCC, 406 F.3d 689, 691, 693–96 (D.C. Cir. 2005)
(describing the entertainment industries’ “broadcast flag” campaign).

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IV. What Personal Uses Are Lawful?

Anyone may copy copyrighted materials for purpose of private study
and review.

—Saul Cohen, 1955134

With a definition of personal use to work with, we can start to map out
which personal uses are lawful and which infringe. A standard paradigm for
construing the copyright law holds that any unlicensed use that falls within
the literal terms of § 106, which gives copyright owners control over fixed
reproductions, adaptations, and public distributions, performances, and
displays,135 violates the copyright law unless it comes within the terms of an
express statutory exemption.136 As I will explore in detail below, I believe
that rubric is at best misleading, but it will give us a place to begin. Even if
the standard paradigm accurately describes the law, there is a large class of
personal uses that are simply outside of the scope of the current copyright
statute. That zone, smaller than it used to be, includes all private perform-
ances and displays.137 It includes all private distributions, since the copyright
owner’s distribution right is limited to distributions “to the public.”138 Copy-
right owners have no copyright rights that would allow them to control
private performances, displays, or distributions. Nor have copyright owners
any right to prohibit people from making unfixed reproductions of copy-
righted works.139



134. Saul Cohen, Fair Use in the Law of Copyright, 6 COPYRIGHT L. SYMP. (ASCAP) 43, 58
(1955).

135. 17 U.S.C. § 106 (2000).
136. See, e.g., MusicUnited.org, supra note 128 (“[Y]ou need the permission of the copyright

holder before you copy and/or distribute a copyrighted music recording.”); Brad Templeton, 10 Big
Myths About Copyright Explained, http://www.templetons.com/brad/copymyths.html (“[C]opyright
law makes it technically illegal to reproduce almost any new creative work . . . .”).

137. 17 U.S.C. § 106(4)–(5). The copyright statute’s definitions of “display” and “perform” are
broad enough to encompass looking at and listening to:

To “display” a work means to show a copy of it, either directly or by means of a film,
slide, television image, or any other device or process or, in the case of a motion
picture or other audiovisual work, to show individual images nonsequentially. . . .
To “perform” a work means to recite, render, play, dance, or act it, either directly or by
means of any device or process or, in the case of a motion picture or other audiovisual
work, to show its images in any sequence or to make the sounds accompanying it
audible.

17 U.S.C. § 101. Because the statutory performance and display rights are limited to public
performance and public display, they do not encompass watching television in the living room,
listening to music in the bedroom, or looking at the poster that is hanging on the wall of the kitchen.
See H. R. REP. NO. 94-1476, at 62–65 (1976).

138. 17 U.S.C. § 106(3) (“[T]o distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership or by rental lease or lending . . . .”). This limitation has
attracted almost no attention in the thirty years since the enactment of the 1976 Act, presumably
because few unauthorized private distributions of copies or phonorecords have attracted litigation.

139. 17 U.S.C. §§ 101, 106(1).

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1896 Texas Law Review [Vol. 85:1871


A number of other personal uses are permitted because of statutory
exemptions and privileges. The first sale doctrine in § 109 allows
distribution and display to the public of owned, lawfully made copies and
phonorecords.140 Section 109(e) permits the public performance of video
games on coin-operated machines.141 Section 110(5) allows people to listen
to and watch radio and television broadcasts in public places, so long as they
use the sort of equipment commonly found in private homes.142 Section
110(11) allows private households to use software to hide objectionable
scenes in motion pictures they are viewing.143 Section 117 permits people to
modify and make backup copies of the computer programs on their
computers.144 Section 120 allows homeowners to renovate and photograph
their homes, notwithstanding the architects’ reproduction and adaptation
rights.145 Section 602 permits people to import copies or phonorecords of
copyrighted works for use (as distinguished from sale) as part of their per-
sonal luggage.146 Section 1008 prohibits copyright infringement suits against
consumers who make noncommercial copies of recorded music (at least so
long as they use analog or digital audio recording devices or media).147

In addition, the statute includes specific exemptions for intermediaries
to reproduce, adapt, distribute, perform, or display works for the benefit of
people who are making exempt personal uses. Section 110(11) allows soft-
ware companies to create and market programs designed to assist individuals
who wish to censor offensive scenes in motion picture broadcasts or
DVDs.148 Section 111 allows the proprietors of hotels and apartment build-
ings to transmit broadcast programs to individual apartments and hotel rooms
so that the occupants can perform them privately.149 Section 117 permits
computer repair services authorized by people who own computers to run the
copyrighted computer programs installed on individuals’ machines as part of
the repair process.150 Section 121 allows nonprofit groups to reproduce


140. 17 U.S.C. § 109.
141. 17 U.S.C. § 109(e).
142. 17 U.S.C. § 110(5).
143. Family Movie Act of 2005, Pub. L. No. 109-9, §§ 201–02, 119 Stat. 223, 223–24 (to be

codified at 17 U.S.C. § 110(11)).
144. 17 U.S.C. § 117.
145. 17 U.S.C. § 120.
146. 17 U.S.C. § 602(a)(2).
147. 17 U.S.C. § 1008. The scope of the § 1008 prohibition against infringement suits is

contested. See Atlantic Recording Corp. v. XM Satellite Radio, 81 U.S.P.Q. 2d (BNA) 1407
(S.D.N.Y. 2007) (holding that § 1008 protects XM radio from suit based on actions taken in its
capacity as a distributor of audio recording devices, but not from suit based on its conduct as a
satellite radio broadcaster, or from suit based on its actions as an “XM + Mp3” content delivery
provider); Litman, War Stories, supra note 6, at 357–60, 359 n.114 (discussing § 1008 and its
scope).

148. See Family Movie Act of 2005, Pub. L. No. 109-9, §§ 201–02, 119 Stat. 223, 223–24 (to
be codified at 17 U.S.C. § 110(11)).

149. 17 U.S.C. § 111.
150. 17 U.S.C. § 117(c).

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VII. “All Rights Reserved”

The copyright statutes ought to be reasonably construed with a view to
effecting the purposes intended by Congress. They ought not to be unduly
extended by judicial construction to include privileges not intended to be
conferred, nor so narrowly construed as to deprive those entitled to their
benefit of the rights Congress intended to grant.

—Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 346 (1908)

In Sony v. Universal Studios, Justice Blackmun argued in his
memoranda to the other Justices that the 1976 Copyright Act gave copyright
owners the exclusive right to reproduce their works and that any reproduction
not otherwise permitted by an explicit statutory exemption was therefore
infringing.242 Justice Blackmun looked at the history of Supreme Court cases
interpreting the scope of copyright narrowly, and argued that Congress had
intended, in enacting the 1976 Act, to dissuade courts from constrained
readings of copyright rights.243 There were no implicit copyright privileges
or exemptions, Justice Blackmun argued, which meant that unauthorized uses
that did not fall within an express statutory provision were unlawful unless
they were fair use.244 Fair use, further, was a narrow privilege limited to pro-
ductive uses; as a general matter, copyright owners should not be forced to
subsidize ordinary uses.245 Justice Blackmun lost that argument and went on
to write the dissent in Sony.246 Copyright scholars, however, have by and
large adopted Justice Blackmun’s analysis of the meaning and structure of
the 1976 Act. The statute is so long and so detailed that we deny the exis-
tence of implied privileges or exemptions.247 Any reproduction or
adaptation, any public distribution, performance, or display is a prima facie
infringement unless it is covered by a specific exemption or limitation or
privileged by fair use.248

That’s not true, of course, unless one believes in a generous and
expansive version of fair use that it would be hard to find in any recent
judicial opinions. We all routinely engage in activity that would be unlawful
under such an understanding. We back up our hard disks; we forward emails


242. Memorandum of Justice Harry Andrew Blackmun to the Justices of the 1983 U.S.
Supreme Court at 17−18 (June 1983) (on file with author).

243. Id.
244. Id. at 19.
245. Id. at 22–23.
246. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 457–500 (1984)

(Blackmun, J., dissenting).
247. See Litman, Technological Change, supra note 20, at 349 (“[T]he language of the 1976

Act discouraged the courts from discovering implied privileges, by couching its multiplicity of
express privileges in such specificity and detail.”).

248. See, e.g., SHELDON W. HALPERN, DAVID E. SHIPLEY & HOWARD B. ABRAMS,
COPYRIGHT: CASES AND MATERIALS 201 (1992) (“[T]he structural approach of the Copyright Act
is to define five broad basic rights and to provide a detailed list of specific exemptions, exclusions
and compulsory licenses.”).

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1920 Texas Law Review [Vol. 85:1871


to friends. We read aloud to our children using funny voices for different
characters; we play CDs on our car stereos with our windows open.

What does that matter, given that nobody is likely to file suit over
personal uses? The recent lawsuits against thousands of individuals caught
using peer-to-peer file trading software might warn against relying too much
on the seeming unthinkability of individual lawsuits over personal use.
Assuming, however, that personal use lawsuits are hugely unlikely, what
harm does it do to frame the statutory interpretation question that way?

One significant harm that flows from conceptualizing the statute in that
way is that, if it is inaccurate, it warps our thinking. It encourages copyright
owners to expect too much, and copyright scholars to demand too little. It
snookers judges into reinterpreting the language of the statute to give effect
to the perceived intent of Congress, expanding copies to include RAM
copies,249 and commercial uses to include any use a copyright owner might
otherwise charge for.250 It shortchanges the readers, listeners, viewers,
watchers, players, and builders at the heart of the copyright system.

Nothing in the legislative history of the 1976 Act suggests that members
of Congress intended to transform copyright from a grant of limited
exclusive rights into an expansive monopoly over all uses of copyrighted
works. As recently as ten years ago, a suggestion that a literal reading of the
statute in light of recent cases might give copyright owners control over
reading, listening, and other personal uses seemed outlandish. Today, it in-
creasingly seems to be inevitable, even though the underlying statutory
language hasn’t changed. Part of the blame belongs at our own doors. When
scholars insisted that uses are unlawful unless expressly exempted, lawyers
and courts may have believed us; we may have believed ourselves.



249. See MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 518–19 (9th Cir. 1993) (“Since
we find that the copy created in the RAM can be ‘perceived, reproduced, or otherwise
communicated,’ we hold that the loading of software into RAM creates a copy under the Copyright
Act.”).

250. See A & M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 912–15 (N.D. Cal. 2000),
aff’d in part, rev’d in part, 239 F.3d 1004 (9th Cir. 2001) (stating that Napster file sharing, though
noncommercial in nature, adversely affects the copyrighted work’s potential market by decreasing
music sales, depriving publishers of royalties, and harming the record company’s potential entry
into the online market).

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