No. 21-869
`
`In the
`Supreme Court of the United States
`
`ANDY WARHOL FOUNDATION FOR
`THE VISUAL ARTS, INC.,
`
`v.
`
`LYNN GOLDSMITH, et al.,
`
`Petitioner,
`
`Respondents.
`
`On Writ Of CertiOrari tO the United StateS
`COUrt Of appealS fOr the SeCOnd CirCUit
`
`BRIEF OF AMICI CURIAE ELECTRONIC
`FRONTIER FOUNDATION AND
`ORGANIZATION FOR TRANSFORMATIVE
`WORKS IN SUPPORT OF PETITIONER
`
`Corynne MCSherry
`Counsel of Record
`Cara GaGlIano
`eleCtronIC FrontIer FoundatIon
`815 Eddy Street
`San Francisco, CA 94109
`(415) 436-9333
`corynne@eff.org
`
`Counsel for Amici Curiae
`
`312893
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`
`
`In the
`Supreme Court of the United States
`
`ANDY WARHOL FOUNDATION FOR
`THE VISUAL ARTS, INC.,
`
`v.
`
`LYNN GOLDSMITH, et al.,
`
`Petitioner,
`
`Respondents.
`
`On Writ Of CertiOrari tO the United StateS
`COUrt Of appealS fOr the SeCOnd CirCUit
`
`BRIEF OF AMICI CURIAE ELECTRONIC
`FRONTIER FOUNDATION AND
`ORGANIZATION FOR TRANSFORMATIVE
`WORKS IN SUPPORT OF PETITIONER
`
`Corynne MCSherry
`Counsel of Record
`Cara GaGlIano
`eleCtronIC FrontIer FoundatIon
`815 Eddy Street
`San Francisco, CA 94109
`(415) 436-9333
`corynne@eff.org
`
`Counsel for Amici Curiae
`
`312893
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`
`
`i
`
`TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . i
`
`TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . iii
`
`INTEREST OF AMICI CURIAE. . . . . . . . . . . . . . . . . .1
`
`INTRODUCTION AND SUMMARY OF
` ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
`
`ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
`
`I. Fair Use Breathing Space Is More
`
`Important Than Ever . . . . . . . . . . . . . . . . . . . . . . .4
`
`II. The Second Circuit’s Factor One Analysis
`Confuses Far More Than It Clarifies and
` Would Stifle New Creativity . . . . . . . . . . . . . . . .12
`
`A. Two works of visual art (or any
`two works in a roughly similar
`medium) do not necessarily share
`the “same overarching purpose”. . . . . . . . .12
`
`
`
`B. In many cases, transformativeness
`cannot be assessed without considering
`intent and audience . . . . . . . . . . . . . . . . . . . .14
`
`
`
`C. Many digital transformative uses
`recognizably derive from and retain
`essential elements of the original . . . . . . . .17
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`
`
`ii
`
`III. The Factor One Analysis Should Be
`Flexible and Tied to the Circumstances of
`the Case—Including, Where Appropriate,
`the Intended Audience of the Work . . . . . . . . . .19
`
`
`
`IV. The Court Should Take This Opportunity
`
`to Reassess the Factor Four Burden . . . . . . . . .23
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
`
`Table of Contents
`
`Page
`
`
`
`iii
`
`Cases
`
`Adjmi v. DLT Entm’t Ltd.,
`
`97 F. Supp. 3d 512 (S.D.N.Y. 2015) . . . . . . . . . . . . . . .20
`
`Andy Warhol Found. for the Visual Arts, Inc. v.
`Goldsmith,
`11 F.4th 262 (2d Cir. 2021). . . . . . . . . . . . . . . . . . . 17, 19
`
`
`
`Art of Living Found. v. Does 1–10,
`
`2011 WL 5444622 (N.D. Cal. Nov. 9, 2011) . . . . . . . .20
`
`Authors Guild v. Google, Inc.,
`
`804 F.3d 202 (2d Cir. 2015) . . . . . . . . . . . . . . . . . . . . .25
`
`Bateman v. Mnemonics, Inc.,
`
`79 F.3d 1532 (11th Cir. 1996). . . . . . . . . . . . . . . . . . . .23
`
`Blanch v. Koons,
`
`467 F.3d 244 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . .21
`
`Bleistein v. Donaldson Lithographing,
`
`188 U.S. 239 (1903). . . . . . . . . . . . . . . . . . . . . . . . . . . .23
`
`Cambridge Univ. Press v. Patton,
`
`769 F.3d 1232 (11th Cir. 2014) . . . . . . . . . . . . . . . . . . .24
`
`Campbell v. Acuff-Rose Music, Inc.,
`510 U.S. 569 (1994) . . . . . . . . . . . . . . . . . . . . . . . passim
`
`
`TABLE OF CITED AUTHORITIES
`
`Page
`
`
`
`iv
`
`Dubner v. City and Cnty. of S.F.,
`
`266 F.3d 959 (9th Cir. 2001). . . . . . . . . . . . . . . . . 24, 26
`
`Eldred v. Ashcroft,
`
`537 U.S. 186 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
`
`Golan v. Holder,
`
`565 U.S. 302 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
`
`Google LLC v. Oracle Am., Inc.,
` 141 S. Ct. 1183 (2021) . . . . . . . . . . . . . . . . . . . . passim
`
`
`Hughes v. Benjamin,
`
`437 F. Supp. 3d 382 (S.D.N.Y. 2020). . . . . . . . . . . . . .20
`
`In re DMCA Subpoena to Reddit, Inc.,
`
`441 F. Supp. 3d 875 (N.D. Cal. 2020) . . . . . . . .9, 11, 20
`
`Kelly v. Arriba Soft Corp.,
`
`336 F.3d 811 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . .22
`
`Kirtsaeng v. John Wiley & Sons,
`
`568 U.S. 519 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
`
`Lenz v. Universal Music Corp.,
`
`815 F.3d 1145 (9th Cir. 2016) . . . . . . . . . . . . . . . . .11, 23
`
`Magnum Photos Int’l., Inc. v. Houk Gallery, Inc.,
`
`2018 WL 4538902 (S.D.N.Y. Sept. 21, 2018) . . . . . . .22
`
`Cited Authorities
`
`Page
`
`
`
`v
`
`Medtronic, Inc. v.
`Mirowski Family Ventures, LLC,
`571 U.S. 191 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
`
`
`
`Oracle Am., Inc. v. Google Inc.,
`
`2016 WL 1743129 (N.D. Cal. May 2, 2016). . . . . . . . .21
`
`Perfect 10, Inc. v. Amazon.com, Inc.,
`
`508 F.3d 1146 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . .22
`
`Red Label Music Publ’g, Inc. v. Chila Prods.,
`
`388 F. Supp. 3d 975 (N.D. Ill. 2019) . . . . . . . . . . . . . .22
`
`Sedgwick Claims Mgmt. Servs., Inc. v. Delsman,
`
`2009 WL 2157573 (N.D. Cal. July 17, 2009) . . . . . . .20
`
`Shady Records v. Source Enters.,
`
`2005 WL 14920 (S.D.N.Y. Jan. 3, 2005) . . . . . . . . . . .21
`
`Sony v. Connectix,
`
`203 F.3d 596 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . .11
`
`St. Mary’s Honor Ctr. v. Hicks,
`
`509 U.S. 502 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . .24
`
`Tex. Dep’t of Cmty. Affs. v. Burdine,
`
`450 U.S. 248 (1981) . . . . . . . . . . . . . . . . . . . . . . . . 24, 26
`
`Wright v. Warner Books, Inc.,
`
`953 F.2d 731 (2d Cir. 1991) . . . . . . . . . . . . . . . . . . . . .22
`
`Cited Authorities
`
`Page
`
`
`
`vi
`
`Statutes
`
`17 U.S.C. § 1201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
`
`17 U.S.C. § 512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`D i g i t a l M i l l e n n i u m C o p y r i g h t A c t ,
` Public Law 105-394 (1998) . . . . . . . . . . . . . . . . . . . .1, 6
`
`Other Authorities
`
`4 Melville B. Nimmer & David Nimmer,
` Nimmer on Copyright (2019) . . . . . . . . . . . . . . . . . . .11
`
`A lyssa Bereznak, Anyone Can Cook: The
`Oral History of ‘Ratatouille: The Musical,’
` The Ringer (Dec. 31, 2020) . . . . . . . . . . . . . . . . . . . . .18
`
`Ass’n of Indep. Video & Filmmakers et al.,
`Documentary Filmmakers Statement of
` Best Practices in Fair Use 4 (2005). . . . . . . . . . . . . .13
`
`Clicky Steve, Hall of Shame: Something Stinks
`
`in Abbotsford, Automattic (May 3, 2017) . . . . . . . . . .7
`
`Comments of Organization for Transformative
`Wo r k s t o th e U. S . Co p y r i gh t O f f i c e
`in th e Ma t t er of Sec ti o n 512 Stu dy,
` Dkt. No. 2015-07 (Mar. 30, 2016) . . . . . . . . . . . . . . . . .7
`
`Cited Authorities
`
`Page
`
`
`
`vii
`
`Comments of the Music Library Association
`to the U.S. Copyright Office in the Matter of
`Music Licensing Study, Dkt. No. 2014-03
`(May 15, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
`
`
`
`C o m m e n t s o f t h e O r g a n i z a t i o n f o r
`Transformative Works to the USPTO/NTIA
`(Nov. 13, 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
`
`
`
`Cor y nne McSher r y, Th e Or ph an Wo rks
`Problem: Time to Fix It, EFF Deeplinks Blog
`(Feb. 4, 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
`
`
`
`Emily Maskell, A Complete Guide to the
`‘Ratatouille’ TikTok Musical, Paper Mag.
`(Nov. 26, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
`
`
`
`Haochen Sun, Copyright Law As an Engine
`of Public Interest Protection, 16 Nw.
`J. Tech. & Intell. Prop. 123 (2019) . . . . . . . . . . . . . . .25
`
`
`
`J e n n i f e r U r b a n , Ho w Fa i r Us e C a n
`Help Solve the Orphan Works Problem,
`27 Berkeley Tech. L.J. 1379 (2012). . . . . . . . . . . . . . .11
`
`
`
`Jennifer Urban, Joe Karaganis, and Brianna
`Schofield, Notice and Takedown in Everyday
`Practice, UC Berkeley Public Law Research
` Paper No. 2755628 (March 2017) . . . . . . . . . . . . . . . . .8
`
`Cited Authorities
`
`Page
`
`
`
`viii
`
`Je s s i c a L i t m a n , C a m p b e l l a t 21/So n y
` at 31, 90 Wash. L. Rev. 651 (2015) . . . . . . . . . . . . . . .10
`
`Julia Reinstein, How “Ratatouille” Went
`From TikTok to an (Almost) Broadway
` Musical, BuzzFeed News (Jan. 2, 2021) . . . . . . . . . .18
`
`Just i n Hughe s , Rul es , St an d ar d s , an d
` Copyright Fair Use 60 (2020) . . . . . . . . . . . . . . . . . . .10
`
`Magic Lantern Home Page . . . . . . . . . . . . . . . . . . . . . . .10
`
`M i ke Ma sn ick , Rath er Th an At t a ckin g
`Section 230, Why Aren’t Trump Supporters
`Angry About the DMCA That’s Actually
` Causing Issues?, Techdirt (July 2, 2020) . . . . . . . . . .8
`
`Mike Masnick, Twitter Taking Down Trump
`Campaign Video Over Questionable Copyright
`Claim Demonstrates Why Trump Should
` Support Section 230, Techdirt (June 5, 2020) . . . . . .7
`
`Mike Masnick, While Trump Continues to
`Complain About 230, It’s Copyright Law
`That Once Again Actually Gets His Content
` Removed, Techdirt (Oct. 9, 2020). . . . . . . . . . . . . . . . .8
`
`Ned Snow, Proving Fair Use: Burden of Proof
`As Burden of Speech, 31 Cardozo L. Rev. 1781
`(2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
`
`
`
`Cited Authorities
`
`Page
`
`
`
`ix
`
`Nikon Hacker Showcase. . . . . . . . . . . . . . . . . . . . . . . . . .10
`
`Org. for Transformative Works, Test Suite
`
`of Fair Use Vids . . . . . . . . . . . . . . . . . . . . . . . . . . .15, 16
`
`Paul Alan Levy, Watch Tower’s Misuse of
`Copyright to Suppress Criticism, Public Citizen:
` Consumer L. & Pol’y Blog (Mar. 7, 2022) . . . . . . . . . .9
`
`Personal View FAQs Wiki . . . . . . . . . . . . . . . . . . . . . . . .10
`
`Rebecca J. Rosen, The Missing 20th Century:
`How Copyright Protection Makes Books
` Vanish, The Atlantic (Mar. 30, 2012) . . . . . . . . . . . . . .5
`
`Rebecca T ushnet , Content , Pur pose , or
` Both?, 90 Wash. L. Rev. 869 (2015) . . . . . . . . . . . . . .10
`
`Saturday Night Live, Where in the World is
` Kellyanne Conway?, YouTube (May 7, 2017) . . . . . .14
`
`T V Doctor Believes Copyr ight Will Save
`Him from Criticism, Is Very Wrong, EFF
` Takedown Hall of Shame (2020) . . . . . . . . . . . . . . . . .7
`
`U. S . C opy r i ght O f f ic e , O r ph a n Wo r k s
` and Mass Digitization 35 (2015) . . . . . . . . . . . . . . . . .5
`
`Zachary Pincus-Roth, The Most Exciting
`T h e a t e r No w i s a Fi g m e n t o f O u r
`Imagination, Wash. Post (Dec. 22, 2020) . . . . . . . . .18
`
`
`
`Cited Authorities
`
`Page
`
`
`
`1
`
`INTEREST OF AMICI CURIAE1
`
`Amicus curiae the Electronic Frontier Foundation
`(“EFF”) is a nonprofit civil liberties organization that has
`worked for more than 30 years to protect innovation, free
`expression, and civil liberties in the digital world. EFF
`and its more than 38,000 dues-paying members have a
`strong interest in a balanced copyright system that serves
`the interests of creators, innovators, and the general
`public. As a legal services organization, we also counsel
`users, including internet creators, who have had their
`lawful expression taken offline due to a takedown notice
`submitted pursuant to the Digital Millennium Copyright
`Act or a flag from an automated content filter.
`
`The Organization for Transformative Works (“OTW”)
`is a nonprofit organization established in 2007 to
`protect and defend fans and fanworks from commercial
`exploitation and legal challenge. Our members make
`and share works commenting on and transforming
`existing works, adding new meaning and insights—from
`reworking a film from the perspective of the “villain,” to
`using storytelling to explore racial dynamics in media,
`to retelling the story as if a woman, instead of a man,
`were the hero. The OTW’s nonprofit, volunteer-operated
`website hosting transformative, noncommercial works,
`
`1. Pursuant to Supreme Court Rule 37.3(a), all parties
`have provided their consent to the filing of this brief. Pursuant
`to Supreme Court Rule 37.6, no counsel for a party authored
`this brief in whole or in part, and no party or counsel for a party
`made a monetary contribution intended to fund the preparation
`or submission of the brief. No person or entity, other than Amici,
`their members, or their counsel, made a monetary contribution
`to the preparation or submission of this brief.
`
`
`
`2
`
`the Archive of Our Own, has over 4.7 million registered
`users, hosts over 9.3 million unique works, and receives
`approximately two billion page views per month.
`
`INTRODUCTION AND
`SUMMARy OF ARGUMENT
`
`While the facts of this case are relatively narrow,
`its impact may reach far beyond the world of fine arts.
`In a digital age, copyright law necessarily plays an
`ever-increasing role in day-to-day life: it not only shapes
`creative work but also influences innovation, education,
`politics, security, and privacy.
`
`Virtually everything we do online involves reproducing
`copyrightable works, making new ones, or both. Every
`time someone posts on social media, forwards an e-mail, or
`texts a GIF to a friend, they are making use of copyrighted
`material. Vast economies exist for posting, streaming, and
`commenting on performances of all kinds. New internet
`creators remake and rework all kinds of copyrighted
`works to create new meanings and messages. Given the
`ubiquity of software in our devices and appliances, many
`aspects of security testing, repair, and the development
`of competitive products depend on reverse engineering
`copyrighted software—often against the desires of the
`manufacturer. Educators, students, parents, families,
`political organizers, human rights defenders, journalists,
`and many others depend on internet platforms to
`communicate—a dependence that has been underscored
`by the pandemic.
`
`The present case has the potential to affect all of
`this. The activities described above depend on a robust
`
`
`
`3
`
`and flexible fair use doctrine. Rightsholders may be
`reluctant to permit many of these uses, assuming those
`rightsholders can even be contacted. Many users will not
`even realize they might need fair use protections until
`they get an overzealous cease-and-desist notice backed
`up by a threat of massive statutory penalties or find their
`creative works taken down based on nothing more than an
`allegation of infringement. The need is even more acute
`where the user is not well-resourced: pro bono copyright
`lawyers are few and far between, and statutory damages
`can end a career or a company. The fair use doctrine gives
`these users the tools they need to fight back, in keeping
`with its core purpose—to ensure that copyright continues
`to foster, not impede, creative expression and, relatedly, to
`reconcile the First Amendment and the Copyright Clause.
`
`The Second Circuit’s new fair use approach, especially
`its analysis of the first fair use factor, throws a relatively
`stable regime into chaos. It cannot be reconciled with
`established law, including this Court’s own rulings.
`If endorsed by this Court, it will undermine valuable
`expressive activity that builds on existing works, including
`fan fiction and works whose new meaning and message
`might not be apparent to all audiences.
`
`Amici urge the Court to reverse. In addition,
`Amici urge the Court to reinforce fair use protections
`by clarifying that, where a use is at least minimally
`transformative and/or noncommercial, the rightsholder
`bears the burden to show market harm.
`
`
`
`4
`
`ARGUMENT
`
`I. Fair Use Breathing Space Is More Important Than
`Ever
`
`Copyright acts as an “engine of expression” only when
`it respects the traditional contours that keep it within its
`appropriate bounds. See, e.g., Eldred v. Ashcroft, 537 U.S.
`186, 219–21 (2003); Google LLC v. Oracle Am., Inc., 141 S.
`Ct. 1183, 1195–96 (2021). These traditional contours, such
`as fair use and the idea/expression dichotomy, serve as
`“built-in First Amendment accommodations” that, when
`they are respected, help alleviate the obvious tension
`between the First Amendment and the Copyright Clause.
`Golan v. Holder, 565 U.S. 302, 327–29 (2012); Eldred, 537
`U.S. at 219.
`
`More specifically, fair use helps fulfill copyright’s
`essential purposes by fostering new creativity. Creators
`and innovators often build on what has come before; a
`robust fair use doctrine ensures that building can continue
`and that original creators don’t have unlimited power to
`police the work of the next generation.
`
`The doctrine is more important than ever in the
`twenty-first century, thanks to several overlapping
`developments that, taken together, amount to “copyright
`creep”—the expansion of copyright ownership into areas
`where it is increasingly likely to inhibit, rather than
`encourage, new creativity and expression.
`
`The first significant change was the extension of
`the copyright term, combined with the abandonment
`of meaningful registration requirements. Every day,
`ordinary people as well as professionals create and
`
`
`
`5
`
`use all kinds of works. Thanks to new technologies and
`platforms, we can also share and re-use those works
`widely. Without registration requirements, however,
`every blog post, comment, and selfie is a copyrighted
`work, and hence, sharing, quoting, or commenting on
`them—that is, doing exactly what many of these works
`are meant for—becomes a potential lawsuit in the making.
`Thanks to extraordinarily lengthy copyright terms, the
`threat lingers for decades, whether or not the copyright
`holder has any interest in enforcing their rights. Digital
`technologies aside, copyright term extension has led to a
`“missing century” of books that publishers have decided
`not to re-publish because of copyright risks, at the very
`time when books could be more available than ever.2
`
`Second, and relatedly, huge swaths of copyrighted
`works, both new and old, are “orphans,” i.e., works of
`uncertain copyright status and, more importantly, for
`which the rightsholder cannot be identified. As the
`Copyright Office puts it:
`
`[T]he uncertainty surrounding the ownership
`status of orphan works does not serve the
`objectives of the copyright system. For good
`faith users, orphan works are a frustration, a
`liability risk, and a major cause of gridlock in
`the digital marketplace.3
`
`2. Rebecca J. Rosen, The Missing 20th Century: How
`Copyright Protection Makes Books Vanish, The Atlantic (Mar. 30,
`2012), https://www.theatlantic.com/technology/archive/2012/03/
`the-missing-20th-century-how-copyright-protection-makes-
`books-vanish/255282/.
`
`3. U.S. Copyright Office, Orphan Works and Mass
`Digitization 35 (2015), https://www.copyright.gov/orphan/.
`
`
`
`6
`
`In 2008, Congress attempted to address some aspects
`of the “orphan work” problem with new legislation, but
`the effort failed and the problem remains unresolved.4
`
`Third, there is an ever-growing body of “born digital”
`works for which licenses are either effectively unobtainable
`(because there is no one with whom to negotiate) or take
`the form of contracts of adhesion that prevent important
`uses such as preservation and archiving.5 The Music
`Library Association has extensively documented how, by
`conditioning access to works on the acceptance of adhesive
`contract terms, copyright owners of “born digital” works
`can undermine key limitations and exceptions to copyright,
`such as the first sale doctrine and statutory permissions
`for library archival reproduction.6 See Kirtsaeng v. John
`Wiley & Sons, 568 U.S. 519, 523 (2013) (identifying the
`first sale doctrine, library archival reproduction, and fair
`use as limitations on exclusive rights).
`
`Fourth, copyright has become a weapon to silence
`critical speech—a weapon that is easily wielded thanks
`to the Digital Millennium Copyright Act (“DMCA”). The
`DMCA gives internet intermediaries powerful incentives
`to remove any content that has been identified as
`
`4. See Corynne McSherry, The Orphan Works Problem:
`Time to Fix It, EFF Deeplinks Blog (Feb. 4, 2013), https://www.
`eff.org/deeplinks/2013/02/orphan-works-problem-time-fix-it.
`
`5. Comments of the Music Library Association to the U.S.
`Copyright Office in the Matter of Music Licensing Study, Dkt.
`No. 2014-03 (May 15, 2014), https://www.copyright.gov/policy/
`musiclicensingstudy/comments/Docket2014_3/Music_Library_
`Association_MLS_2014.pdf.
`
`6. Id.
`
`
`
`7
`
`infringing, whether or not that content actually infringes.7
`Thanks to those incentives, a DMCA notice allows the
`sender to do what no court could: cause the temporary or
`permanent deletion of speech, even lawful speech, based
`on nothing more than an allegation. To take just a few of
`of many examples:
`
`• A media personality and addiction specialist used
`the DMCA to take down a video criticizing him for
`spreading Covid-19 misinformation.8
`
`• City officials used the DMCA to target a blogger
`who used a modified version of the town’s logo in a
`post criticizing its efforts to deter unhoused people
`from camping.9
`
`• Political operatives used the DMCA to take down
`statements by former President Trump and
`other conservative statements based on their
`incorporation of copyrighted material.10
`
`7. See Comments of Organization for Transformative Works
`to the U.S. Copyright Office in the Matter of Section 512 Study,
`Dkt. No. 2015-07, at 6–10 (Mar. 30, 2016), https://downloads.
`regulations.gov/COLC-2015-0013-86027/attachment_1.pdf.
`
`8. TV Doctor Believes Copyright Will Save Him from
`Criticism, Is Very Wrong, EFF Takedown Hall of Shame
`(2020), https://w w w.eff.org/takedowns/tv-doctor-believes-
`copyright-will-save-him-criticism-very-wrong.
`
`9. Clicky Steve, Hall of Shame: Something Stinks in
`Abbotsford, Automattic (May 3, 2017), https://transparency.
`automattic.com/2017/05/02/hall-of-shame-something-stinks-in-
`abbotsford/.
`
`10. See, e.g., Mike Masnick, Twitter Taking Down
`Trump Campaign Video Over Questionable Copyright Claim
`
`
`
`8
`
`And so on.11 Unfortunately, given the potential costs
`of defending against such an allegation—both litigation
`expenses and statutory damages if you fail—many fair
`users fear fighting back, no matter how confident they are
`that their speech is lawful.
`
`Moreover, rightsholders have repeatedly used the
`DMCA Section 512(h) subpoena process to attempt to
`unmask and silence anonymous critics. For example, the
`Watch Tower Bible and Tract Society of Pennsylvania
`(“Watch Tower”) served a Section 512(h) subpoena on
`the social media site Reddit, seeking to uncover an
`anonymous poster’s identity after he posted images of
`
`Demonstrates Why Trump Should Support Section 230,
`Techdirt (June 5, 2020), https://www.techdirt.com/2020/06/05/
`twitter-taking-down-trump-campaign-video-over-questionable-
`copyright-claim-demonstrates-why-trump-should-support-
`section-230/; Mike Masnick, Rather Than Attacking Section
`230, Why Aren’t Trump Supporters Angry About the DMCA
`That’s Actually Causing Issues?, Techdirt (July 2, 2020), https://
`www.techdirt.com/2020/07/02/rather-than-attacking-section-
`230-why-arent-trump-supporters-angry-about-dmca-thats-
`actually-causing-issues/; Mike Masnick, While Trump Continues
`to Complain About 230, It’s Copyright Law That Once Again
`Actually Gets His Content Removed, Techdirt (Oct. 9, 2020),
`https://www.techdirt.com/2020/10/09/while-trump-continues-to-
`complain-about-230-copyright-law-that-once-again-actually-gets-
`his-content-removed/. Many additional examples are collected
`at https://transparency.automattic.com/tag/hall-of-shame/ and
`https://www.eff.org/takedowns.
`
`11. See generally Jennifer Urban, Joe Karaganis, and
`Brianna Schofield, Notice and Takedown in Everyday Practice,
`UC Berkeley Public Law Research Paper No. 2755628
`(March 2017), available at https://papers.ssrn.com/sol3/papers.
`cfm?abstract_id=2755628#.
`
`
`
`9
`
`Watch Tower documents to comment on its fundraising
`and data collection practices.12 In that case, the anonymous
`poster was able to obtain pro bono counsel and quash
`the subpoena. See In re DMCA Subpoena to Reddit,
`441 F. Supp. 3d 875 (N.D. Cal. 2020). But many others
`have not been so fortunate: Watch Tower has served
`some seventy-two DMCA subpoenas since 2017 seeking
`to identify individuals who have posted criticisms of the
`Jehovah’s Witnesses. Watch Tower has almost never used
`the information obtained from these subpoenas to file an
`infringement action.13
`
`Fifth, everyday objects and processes increasingly
`rely on copyrighted computer software. Software-enabled
`devices have become ubiquitous, from thermostats
`to tractors to medical devices. Researchers, makers,
`and ordinary consumers must reverse engineer that
`software to test and improve those devices. For example,
`photographers frustrated by the limitations of digital
`cameras have found creative ways to make their cameras
`more effective and versatile using custom firmware.14 To
`
`12. Order re Mot. to Quash at 2–3, In re DMCA Subpoena
`to Reddit, Inc., 441 F. Supp. 3d 875 (N.D. Cal. 2020) (No. 19-mc-
`80005-SK (JD)), https://www.eff.org/files/2020/03/03/2020-03-02_
`order_re_motion_dckt_30_0.pdf.
`
`13. Paul Alan Levy, Watch Tower’s Misuse of Copyright to
`Suppress Criticism, Public Citizen: Consumer L. & Pol’y Blog
`(Mar. 7, 2022), https://pubcit.typepad.com/clpblog/2022/03/watch-
`towers-misuse-of-copyright-to-suppress-criticism.html.
`
`14. The term “firmware” typically refers to software built
`into a physical device that controls the device’s operation. A project
`called “Magic Lantern” has created firmware that enables new
`functionality such as video capture capability, audio filtering,
`
`
`
`10
`
`create this enhanced firmware and ensure that it will be
`compatible with the camera, camera users need to create
`readable copies of the original copyrighted firmware code
`to analyze its functional attributes. Overzealous copyright
`owners may see that copying as infringement.
`
`Some industry associations have complained that
`the fair use doctrine has “drastically expanded.”15 If it
`has, that expansion has been essential to the doctrine’s
`fundamental purpose of ensuring that copyright law
`fosters, rather than unduly inhibits, new creativity and
`innovation. Because copyright has expanded its coverage
`to so many activities and people, fair use needs equal
`scope and flexibility simply to keep up. Rebecca Tushnet,
`Content, Purpose, or Both?, 90 Wash. L. Rev. 869, 892
`(2015); Jessica Litman, Campbell at 21/Sony at 31, 90
`Wash. L. Rev. 651, 652–53 (2015); Justin Hughes, Rules,
`Standards, and Copyright Fair Use 60 (2020) https://
`papers.ssrn.com/sol3/papers.cfm?abstract_id=3592312
`(revised Oct. 12, 2021).
`
`overlays, exposure settings, motion detection, user scripting
`ability, improved dynamic range to capture shadowed details and
`fast-moving subjects, and a host of other features not included
`in the stock firmware of the Canon EOS SD Mark II and other
`Canon EOS DSLR cameras. See Magic Lantern Home Page, www.
`magiclantern.fm (last visited June 16, 2022). Similar projects exist
`for Nikon and Panasonic cameras. See Nikon Hacker Showcase,
`https://nikonhacker.com/viewforum.php?f=9 (last visited June
`16, 2022); PTool FAQ, Personal View FAQs Wiki, https://www.
`personal-view.com/faqs/ptool/ptool-faq (last modified Apr. 21,
`2022).
`
`15. Brief of Amici Curiae Ten Creators’ Rights Organizations
`in Support of Respondent at 9, Google LLC v. Oracle Am., Inc.,
`141 S. Ct. 1183 (2021) (No. 18-975), 2020 WL 1131469.
`
`
`
`11
`
`Fair use, and in particular the definition of
`“transformative purpose,” need not mean “all things to
`all people.” See 4 Melville B. Nimmer & David Nimmer,
`Nimmer on Copyright § 13.05[A][1][b] (2019). But the
`doctrine must be robust and flexible enough to match the
`needs of the twenty-first century. Today, thanks to that
`very flexibility, it helps ensure that copyright does not
`impede the development, protection, and sharing of our
`cultural heritage. See, e.g., Jennifer Urban, How Fair Use
`Can Help Solve the Orphan Works Problem, 27 Berkeley
`Tech. L.J. 1379 (2012). It helps safeguard political and
`critical speech online. See, e.g., In re DMCA Subpoena to
`Reddit, 441 F. Supp. 3d at 887 (quashing subpoena seeking
`to unmask a fair user); see also Lenz v. Universal Music
`Corp., 815 F.3d 1145, 1157 (9th Cir. 2016) (rightsholders
`must consider fair use before sending DMCA takedown
`notice). It helps ensure that we can continue to understand,
`repair, and improve upon the technologies we use every
`day. See, e.g., Sony v. Connectix, 203 F.3d 596, 607 (9th
`Cir. 2000). It allows developing creators to find their
`voices and build their skills.16 All of this work is crucial
`to fulfilling copyright’s purpose, creating breathing space
`that benefits both creators and the public interest.
`
`16. Comments of the Organization for Transformative
`Works to the USPTO/NTIA (Nov. 13, 2013), https://w w w.
`transformativeworks.org/wp-content/uploads/old/Comments%20
`of%20OTW%20to%20PTO-NTIA.pdf.
`
`
`
`12
`
`II. The Second Circuit’s Factor One Analysis Confuses
`Far More Than It Clarifies and Would Stifle New
`Creativity
`
`This Court’s opinion in Campbell, as recently affirmed
`in Google v. Oracle, is key to the doctrine’s continued
`vigor. With respect to factor one in particular, this Court
`held that a transformative purpose is nothing more or
`less than one that alters the original to create a new
`expression, meaning, or message. Campbell v. Acuff-Rose
`Music, Inc., 510 U.S. 569, 579 (1994). That simple tenet
`is relatively easy to adapt to the wide variety of uses
`copyright implicates today.
`
`The Second Circuit’s factor one analysis, by contrast,
`substantially weakens and narrows fair use protections
`in three ways. First, it assumes that two works in a
`similar medium will share the same overarching purpose.
`Second, it holds that if a secondary use doesn’t obviously
`comment on the primary work, then a court cannot look
`to the artist’s asserted intent or even the impression
`reasonable third parties, such as critics, might draw.
`Third, it holds that, to be fair, the secondary use must be
`so fundamentally different that it should not recognizably
`derive from and retain essential elements of the original
`work. All three conclusions not only undermine fair use
`protections but also run contrary to practical reality.
`
`A. Two works of visual art (or any two works in
`a roughly similar medium) do not necessarily
`share the “same overarching purpose”
`
`The Second Circuit’s initial conclusion that the two
`works in question—works of visual art—share the same
`
`
`
`13
`
`overarching purpose (to serve as works of visual art)
`is both conclusory and circular. The works at issue in
`Campbell were both works of popular music and therefore
`shared the purpose of providing musical entertainment.
`See Campbell, 510 U.S. at 573. The works at issue in Google
`v. Oracle were both computer programs and therefore
`shared the purpose of operating the Java programming
`language. See Oracle, 141 S. Ct. at 1193–94. But in both
`cases, this Court recognized that medium and purpose
`are not coextensive.
`
`In fact, transformative works—that is, works that
`“add[] something new, with a further purpose or different
`character, altering the first with new expression, meaning,
`or message”17—often share a medium with the work(s)
`they are based upon, and their audiences and purposes
`are likely to overlap. For example, both fictional and non-
`fictional films are just that—films—but they are unlikely
`to serve the same purpose, unless that purpose is defined
`as “to serve as films.” It is well understood that quoting
`copyrighted works of popular culture (including other
`films) to illustrate an argument or point fits within fair use
`best practices for documentary filmmakers,18 but under
`the Second Circuit’s approach, such uses could be ruled
`non-transformative.
`
`17. Campbell, 510 U.S. at 579. The Campbell court rejected a
`definition of “transformative” that would have required the follow-
`on work to constitute a commentary or criticism of the underlying
`work. Compare Campbell, 510 U.S. at 579 (majority opinion) with
`id. at 597–98 (Kennedy, J., concurring) (urging narrower definition
`of parody).
`
`18. Ass’n of Indep. Video & Filmmakers et al., Documentary
`Filmmakers Statement of Best Practices in Fair Use 4 (2005),
`https://cmsimpact.org/wp-content/uploads/2016/01/Documentary-
`Filmmakers.pdf.
`
`
`
`14
`
`Similarly, television shows and fan fiction videos that
`comment on those shows could also be understood to
`serve the same overarching purpose: to entertain. See
`infra Section II.B. Even a Saturday Night Live sketch
`poking fun at political figures using the model of “Where
`in the World Is Carmen Sandiego” arguably serves the
`same overarching purpose as the PBS show: to entertain
`and even educate via television.19 All of these examples—
`including examples that closely resemble the facts of
`Campbell—could fall into the Second Circuit’s unhelpful
`trap.
`
`B. In many cases, transformativeness cann
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