Sunday, March 18, 2012

Canadian Copyright Kerfuffle – How NOT to Fix Copyright Law? (with apologies to Bill Patry)

I just can’t refrain from weighing in hopefully for one last time on the Knopf/Glover/Katz/Patry (in approximately that chronological order – key links provided below) kerfuffle ostensibly about the status of the “effect on the market” fourth factor in American fair use law. Although this has one or two amusing aspects to it (see below), it is mostly very serious. In fact, it’s really about a lot more than where the fourth factor ranks. (Hint – 4th is not necessarily the right answer though it could be, sometimes).  In all seriousness, this is very serious.  There are huge amounts of money and extremely important implications for education, teaching, research and innovation at stake.

Mr. Glover and some of his clients and others with similar intentions want nothing less than to:
  1. Persuade the Supreme Court of Canada to reverse its landmark CCH v. LSUC decision (less than eight years after it was decided) in ways that Prof. Katz discusses in some detail in his blog of March 16, 2012  and, whether or not that happens, to get Parliament to effectively do so via the following steps;
  2. Get rid of the proposed inclusion of the word  "education" in s. 29;
  3. Prioritize the US fourth fair use “effect on the market” factor  as priority numero uno in Canada, when it has no such status in the USA or in England; and,
  4. Inject the "three-step test" treaty language verbatim into Canadian jurisprudence and even legislation, just so nobody misses the point.
There is a fascinating and important – indeed “must read” -  interchange here starting with Prof. Katz’s long but very readable and scholarly blog of March 16, 2012 with comments by  William Patry, Dan Glover, and Prof. Katz.

In any event, I am not going to respond in any detail to Mr. Glover’s blog of March 16, 2012 other than to say that it merely elaborates and confirms the misstatements in his earlier March 9, 2012  posting  concerning UK and, particularly, American law on the “effect of the market” issue, etc. One new thing that he does add is to frontally take on Judge Pierre Leval and Bill Patry – both towering authorities on the subject of fair use, and cited as such by the Supreme Court of the United States in the pivotal Campbell v. Acuff-Rose case that Mr. Glover would like to ignore but which effectively rejects the nine year older decision on which he has staked so much, not only in these recent blogs but in the Supreme Court of Canada, as Prof. Katz discusses in some detail. Some might say that Mr. Glover is courageous to openly criticize Judge Leval and Bill Patry on fair use law. Others might put it differently.

I don’t know how I can usefully add to the careful critique of Mr. Glover's position by Prof. Katz, wherein Katz concludes on the point about the “effect on the market” factor in American law:
Mr. Glover is not a law professor, so he cannot be faulted for not keeping up with “fresh from the oven” studies, such as those by Netanel and Sag. But Mr. Glover is a lawyer at a top law firm, graduate of top law school, and he surely knows how to retrieve US Supreme Court cases and how to check their currency. On a blog, relying on an earlier Supreme Court decision that supports a proposition while ignoring a later decision that refutes it (i.e., invoking Harper & Row while ignoring Campbell) might be embarrassing but excusable. On a blog, it is somewhat amusing that he accuses Howard Knopf of quoting “from ideologically friendly academic texts to misstate the law” because that would also mean that the US Supreme Court in Campbell, to which Knopf also refers, is equally “ideologically friendly”.

But regrettably, the intervener factum that Mr. Glover submitted last fall (with Mr. Sookman) misstated US law in the same manner. In para. 22 of the factum, Glover and Sookman wrote, quoting Harper & Row, that “In the USA, the Supreme Court has called the effect on the market factor “undoubtedly the single most important element of fair use.” The paragraph did not mention Campbell or any of the appellate cases that unequivocally interpreted Campbell as modifying Harper & Row. [FN. [2] The factum mentions Campbell twice, in para. 20 and para. 27, but to support other points. While both of these points are not really controversial, para. 20 erroneously describes Campbell as a case in which a fair use defence was rejected. The excerpt of Campbell included in their Book of Authorities omits the key passage at page 578 of the report that states “Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” (further references and footnote omitted)]

That statement about US law is incorrect. As US law stands today, the effect on the market is undoubtedly not the single most important factor. Ignoring this in a factum submitted to the Supreme Court of Canada resembles the kind of advocacy that Judge Posner recently described as the “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist”—advocacy which I find not amusing, and indeed, quite disappointing.

Prof. Katz also deals with a number of other important points, including how Mr. Glover also misstates English law. On the three-step test, Prof. Katz refers back to my blog on why the three-step test issue is a red herring and part of a “camouflage” to attack CCH v. LSUC.

Mr. Glover has an unconvincing reply to Prof. Katz posted as a comment on Katz’s blog in which he still effectively denies the fact that the US Supreme Court in its 1994 Campbell v. Acuff-Rose decision rejected the interpretation that he is trying to promote in Canada regarding the nine year older Harper v. Row decision on the issue of prioritizing the “effect on the market”.

The best way to understand case law is usually to read it. Here is what the Campbell Court said in 1994, in the key passage found at pages 577-578 of the report that Prof. Katz and I included in our Book of Authorities, but which Messrs. Glover and Sookman did not:

Congress meant § 107 "to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way" and intended that courts continue the common-law tradition of fair use adjudication. H. R. Rep. No. 94-1476, p. 66 (1976) (hereinafter House Report); S. Rep. No. 94-473, p. 62 (1975) (hereinafter Senate Report). The fair use doctrine thus "permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." Stewart v. Abend, 495 U. S. 207, 236 (1990) (internal quotation marks and citation omitted).

The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis. Harper & Row, 471 U. S., at 560; Sony, 464 U. S., at 448, and n. 31; House Report, pp. 65-66; Senate Report, p. 62. The text employs the terms "including" and "such as" in the preamble paragraph to indicate the "illustrative and not limitative" function of the examples given, § 101; see Harper & Row, supra, at 561, which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses.9 Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright. See Leval 1110-1111; Patry & Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Ent. L. J. 667, 685-687 (1993) (hereinafter Patry & Perlmutter ).10 (Footnotes omitted)

Note the Court’s references to Leval and Patry, the same Leval and Patry concerning whom Mr. Glover says:

Because Nimmer on Copyright represents an inconvenient truth for Mr. Knopf, he resorts to the text authored by William Patry, now the senior copyright counsel at Google, who is himself quoting not decided case law, but a 1996 academic article (Fair Use Rescued”) by Pierre Leval, a well-known judge formerly at the Second Circuit. The core point here is that Mr. Patry and Judge Leval are (as is their right) criticizing the logic behind the Sony and Harper & Row Supreme Court decisions as being circular or wrong in policy. Mr. Patry also clearly agrees with the user rights analysis of the CCH decision. Their views are an attempt to address, critique and change the law of copyright (as are those of Aufderheide and Jaszi), but they are not a statement of the law as it stands in the United States. They are a statement of the law as they would like to see it. (Emphasis added).

Hmm. So much for the US Supreme Court, Judge Leval, Bill Patry, as well as Patricia Aufderheide and Peter Jaszi, at least according to Mr. Glover. It’s hard to respond to this, other than to say that I am really honoured to see my name mentioned in the same paragraph as these outstanding American authorities, even if, according to Mr. Glover, they do not correctly state “the law as it stands in the United States”.

I’m also very happy to be “upheld” by none other than Bill Patry, through his vindication in the form of two eloquent comments that appear on Prof. Katz’s blog, which in turn supports my analysis.  This is how Patry very succinctly makes it very plain in his comment posted on Prof. Katz’s blog that the Campbell court rejected Nimmer and the Harper court nine years earlier on the “effect of the dealing” issue:

Harper & Row merely cited Nimmer, and Campbell, as has been noted, rejected Harper & Row, as have courts after Campbell. Put as clearly as possible, it is an inaccurate statement of U.S. law to say that the fourth factor is the single most important, determinative, primus inter partes, or anything of the sort. It is one of four and the four are inter-related and therefore considered together. (emphasis added)

Those who wish to read Mr. Patry’s work in full form work may want to look at his multi-volume treatise Patry on Copyright or his monograph Patry on Fair Use, and his many other books and works over the years.

In any event, Prof. Katz mentioned the recent decision of Judge Richard Posner  - remarkably colourful even by this remarkable judge’s standards - concerning the risk of ignoring relevant and dispositive precedents. Here’s the relevant passage  – with the illustrations included by Judge Posner himself:

When there is apparently dispositive  precedent, an appellant may  urge its  overruling or  distinguishing or reserve a  challenge  to  it  for a petition  for  certiorari but may not simply  ignore it …

The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.” Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047  (7th Cir. 1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987).6 Nos. 11-1665, 08-2792

Judge Posner’s much discussed decision should be required reading for all law students and all litigation lawyers. As it happens, Mr. Glover’s own firm, McCarthy, Tétrault, has a  blog on appellate advocacy with a posting on Judge Posner’s decision that concludes with the wise advice that:

So don’t be an ostrich. Distinguish adverse authorities with your head high (and firmly out of the sand).

Patry’s Ottawa Appearance on March 19, 2012
By serendipitous coincidence, Bill Patry is giving a talk in Ottawa on Monday, March 19, 2012 at 5:00 Monday, March 19, 2012, Gowlings Moot Court Room (FTX 147)at Fauteux on his new book, “How to Fix Copyright Law”.

Hopefully this will be webcast live and archived.

All of this recent kerfuffle on the Canadian copyright blogs – not to mention the recent and hopefully final chapter of the CBA imbroglio – in which both Mr. Glover and I had roles to play – no doubt illustrate examples of “How NOT to Fix Copyright”.



Bill Patry has posted a comment with additional material on Mr. Glover's post on Barry Sookman's blog. Patry says:
Harper & Row merely cited Nimmer and did no analysis of its own; it was dictum, Court did not, in fact, base its decision only on the fourth factor. But it is true that until Campbell rejected Harper & Row’s treatment of the fourth factor, lower courts did cite the “single most important factor language.” Judge Leval and I both that Harper & Row and the lower courts following it were wrong on this point and we said so. Our advocacy was adopted by the Campbell court; it is, therefore, is entirely inaccurate of you to pretend that our views remain mere criticisms of Sony and Harper & Row. Campbell accepted them and they are now the law in the U.S., like it or not. (emphasis added)

Links to previous blog postings in this kerfuffle:

Knopf March 6 2012
Glover March 16 2012
Katz March 16 2012 + Patry comments

(Note: dead link updated July 13, 2019)


  1. Howard,

    I am delighted that you have decided to re-engage in this debate. Indeed, I expected no less from you. However, I am afraid you have once again engaged in a highly selective treatment of the debate that is now ricocheting between three sites.

    In particular, you give short shrift to my reply on Ariel Katz’s blog as to the contents of our factum and authorities before the Supreme Court. Some, but not all, of that reply, stated as follows:

    "I want to respond directly to your contention that our Supreme Court factum somehow ignored the Campbell case or misstated U.S. law.
    Intervener factums, particularly ones that are limited to 10 pages by order of the Supreme Court, are necessarily succinct. But citations and authorities to the Court permit it to evaluate and weigh all of the relevant authorities. We included ALL of the leading U.S. Supreme Court cases on s. 107 of the Copyright Act and cited to the relevant portions of Campbell twice, at paras. 20 and 27. We put Campbell directly into our Book of Authorities. We included Nimmer on Copyright, the most-cited copyright authority in U.S. law, which comprehensively cites and discusses all of the broader appellate case law. It is irresponsible to suggest that we failed to draw the full spectrum of case law to the Court’s attention."

    I also note that you have omitted mention of my discussion of the factum and authorities put forward by you and Professor Katz, which laid the Campbell case before the U.S. Supreme Court but did not include the Harper & Row case, which contained a statement of law you clearly don’t like. Hence my suggestion that people in glass houses shouldn’t throw stones.

    Last, for those who care to consider both sides of this issue, I have posted a lengthy reply to Mr. Patry’s comments, which reviews at length how Harper & Row and Campbell stand together as authoritative statements of the U.S. Supreme Court. It may be found at

  2. Dan:

    I had really hoped to retire from this thread, since it is being handled so thoroughly by you, Ariel and Bill Patry. But I am pleased to post your comment. That said, I will respond very briefly – hopefully not be heard from again in this context.

    As you rightly noted, intervener factums are strictly limited to 10 pages. This truly focuses the mind and requires difficult and decisive triage of issues. At times, these limits pose a difficult challenge: how to deal with complex issues within those limitations and still provide enough detail and, in Judge Posner’s words, all “relevant and dispositive” case law to be of the best possible assistance to the Court.

    Ariel and I thought it unnecessary to deal with “effect on the market” for several reasons. Among them was the fact that it was clear that the Appellant would deal with the evidentiary issue and, above all, that the Court had ruled on the legal status of that factor quite explicitly and definitively in 2004 in CCH v. LSUC at para. 59:

    “59. Finally, the effect of the dealing on the work is another factor warranting consideration when courts are determining whether dealing is fair. If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair. Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair. See, for example, Pro Sieben Media AG v. Carlton UK Television Ltd., [1999] F.S.R. 610 (C.A.), per Robert Walker L.J.”

    Ariel and I referred to Campbell on a point completely unrelated to the “effect on the market” issue. As Ariel said in a comment earlier on this thread:

    “We cited Campbell once, to support the proposition that section 107 of the US Copyright Act, which codified the common law fair use doctrine, was not intended to restrict or narrow the doctrine of fair dealing or to limit the role of the judiciary in applying, developing, and adjusting it to new circumstances."

    “You’re absolutely correct that our factum doesn’t even CITE Harper & Row, because there was no need to cite it. Harper & Row says essentially the same thing about the point that we addressed in the factum:” [Ariel provides a quote from Harper]

    “Since there is no inconsistency or tension between Harper & Row with respect to this point, and since Campbell is more recent than Harper & Row, there is nothing ostrich-like or misdescriptive in mentioning the one but not the other.”

    So, there was no reason whatsoever for us to refer to Harper & Row, which preceded Campbell by nine years in any event. In your statement about the importance of the “effect on the market” factor, the only case that you and Barry relied on was Harper & Row. You mentioned Campbell in two footnotes related to other questions, but not regarding the “effect on the market” issue, and although you included Campbell in your Book of Authorities, the excerpt did not include pages 577 and 578, which deal with “effect on the market” and where the “rejection”, as Bill Patry puts it, of Harper & Row is to be found. Ariel and I did include those two pages, but only because they filled out the context of the passage that we were citing to.

    For readers of this thread (if there are any left) who may be unaware of how Supreme Court of Canada hearings work, intervener factums are all due at the same time. This means that interveners do not know what other interveners will argue in their factums, and they have no way to respond to one another, except potentially in oral argument, if such argument is permitted and time and the Court so allow.

    Anyway, fascinating as this thread may be, I think that we have more than worn it out.


  3. William Patry's book has several great points. I have a great deal of respect for him since he is one of the marginal who are fearless enough to answer the most basic question: why do we have copyright laws at all. William Patry aptly throws light on numerous myths behind today's popular rationalization on copyright that it is believed to balance the welfare of the originators with the interests of the society.

    Because Patry's book is based on erroneous conjectures, the big issue is, it consequently it concludes with extremely dangerous proposals. He deems that copyright laws are not about giving originators the right to c how their works are utilized. Patry believes that the function of copyright laws is to guarantee the maximum benefits to the public while giving the creators the least minimum that would promote creativity.

    In my critique, How Not To Fix Copyright - My Response to William Patry ( , I talk about the errors in Patry's approach and give a lot of detailed commentaries to extracts from his book.