Why the NCFCA Openness Project is Fair Use and Does Not Violate Copyright Law

By Patrick McKay (DarkLordofDebate)

The basic question involved in determining whether sharing case flows violates copyright is whether someone can assert a copyright interest over someone else’s transcribed notes of an oral presentation which was itself scripted. This would actually be really interesting to see litigated, since it touches on so many murky areas of copyright law.

Even before you get into fair use analysis, you have to determine if that can be copyrighted in the first place. As far as I can tell from a quick LexisNexis and Google search, there is no settled case law on that point. Public speeches can be copyrighted since I found a Supreme Court case where the court held that a publisher distributing verbatim copies of Martin Luther King Jr.’s speeches violated his estate’s copyright, but that was a whole speech word-for-word, not somebody’s notes or outline from listening to the speech.

One interesting case I found that would be very on point here was a case currently before a district court in Florida, where a college professor is suing a company that publishes students’ class notes online. That deals with a very similar situation where people take notes on an oral presentation and then publish their notes online. Unfortunately that case is still in the discovery phase and hasn’t gotten into any substantive law yet, so I can’t even look up the different side’s briefs on the issue let alone see a final decision.

So turning to analyze the issue myself.

First, in order for something to be copyrighted at all, it must be in some sort of “fixed” form. This is an issue for speeches, since they are transitory and unless recorded in some way only exist temporarily. There is no question however that a 1AC is fixed in written form in the script the affirmative team uses, so that is clearly copyrightable, but I’m not at all certain it would actually be considered “fixed” in another person’s notes created just from listening to it. In fact, there’s a good chance that would be considered an entirely new work with the copyright belonging to the person who wrote it down. That would probably depend on how different it is from the original. If the notes were a verbatim transcription of the original, they would obviously be a fixed copy of the speech and subject to the affirmative’s copyright, but case flows are usually more rough paraphrases than direct quotes, so this is still highly questionable.

Remember, copyright law protects a fixed expression, not the overall idea of a work. You cannot copyright an idea. It has to have a definite expression. That is why you can write a review of a book and describe the entire plot, yet not infringe the author’s copyright. In the same sense a case flow is just a description of the case, not a copy of it, so I still think it would be highly unlikely the case author could assert any kind of copyright claim over a flow to begin with. Also remember that debate cases themselves are usually just a collection of quotes from other sources strung together with a few individual sentences. It’s doubtful there is even enough original material in a debate case to make it copyrightable, unless maybe it could be copyrighted as a compilation.

However, assume for the sake of argument that they could. Copyright law grants authors five exclusive rights: (1) reproduction, (2) distribution, (3) public performance, (4) public display, and (5) preparation of derivative works. If a flow infringes any of these rights, it would have to be the last one, derivative works, which basically covers anything that substantially modifies the original or incorporates it or adapts it into a new work (the most obvious example would be adapting a book into a movie).

Now, even if a case flow potentially infringes the case author’s exclusive right to control the creation of derivative works, it is subject to the affirmative defense of “fair use.” An affirmative defense is basically something that would otherwise violate the law but is considered legally justified and therefore prevents liability. For example, if you shoot someone to defend against an attack, you would plead self-defense as an affirmative defense to the charge of murder (or the equivalent civil law torts of wrongful death or battery).

Fair use uses what’s called a factor’s test, where you examine whether a variety of factors favors one side or the other and then decide whether the overall claim is satisfied by a preponderance of the evidence (more likely than not). Now derivative works are also the most complicated to apply the fair use test to. If this involved verbatim copies of cases if would be much more clear cut since that would involve the reproduction and distribution rights. At any rate, let’s go through the factors one by one.

1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Posting flows online on our wiki is a non-commercial use since we are not selling them, which is a fact favoring fair use. Additionally, it is an educational use. Remember what matters here is not whether you consider posting case flows to increase the educational value of debate, but whether it is legally considered an educational activity. Educational here relates to the overall context of the use, which is the education activity of debate. Yes it is being used for the immediate purpose of achieving a competitive advantage, but debate itself is an inherently educational activity, and furthering debate achieves an educational purpose. This also favors fair use.

(2) the nature of the copyrighted work;

This refers to whether the work is creative (like a piece of literature or music) or more factual or opinionated in nature. Creative works are given higher protection than the latter. It also considers whether the work is published or unpublished. For the former, debate cases are more factual or opinion, with no real creative or literary value. Whether they are published is open for debate, since you could argue they are published because they are presented in public at a tournament (vs. something like a private letter). However the original case isn’t published or distributed in a traditional sense, so you might be able to argue it is unpublished. Even then as the statute explicitly says, just because something is unpublished doesn’t preclude fair use. Overall, this factor probably favors fair use as well.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

This factor uses both a quantitative and qualitative measure. Quantitatively, debate flows use quote very little of the original case, since they are usually just the taglines, and even those are often loosely paraphrased. Qualitatively however, something is less likely to be fair use if it copies the “heart” of a creative work or its most significant parts. This is arguably the case with flows, but the fact they are not usually even verbatim quotes just paraphrases weighs against this. Once again, mere ideas are not subject to copyright. Overall, this probably weighs toward fair use too.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

This is generally considered the most important prong of the fair use test, but its application here is rather tricky. Copyright is usually applied in commercial situations where there is some sort of commercial value to the sale of the work in question. In this case, both the original case and the case flow are purely non-commercial. There is thus no “market” for the work. Legally I don’t think you can simply substitute whatever the intended use of the original is or even whatever gives it value. Copyright was never intended to protect a broad right to prevent other people from learning the general content of a work. Private letters are copyrighted, and you could sue if someone published a private letter verbatim, but you couldn’t sue based on copyright if someone just generally described the content of a private letter. You might be able to sue under invasion of privacy or maybe even libel, but not copyright.

Ultimately here since there is no “market” for the original work, you can’t really say our publishing case flows interferes with it. Even if you could define the market for the original as its value for use in competition, all our arguments about sharing case flows actually helping affirmatives in the long run, as well as our arguments about what is commonly accepted as ethical and unethical in the league would come into play here in determining if our activity really does interfere with this interest or not. That would make this factor at most a toss-up.

So there you have it. That’s my basic argument for why what we’re doing is clearly fair use. Ultimately fair use law is incredibly murky and you can never really know something is fair use until a court says it is, but I find it highly unlikely any court would actually say posting your own rough outline of an oral presentation given in the course of a debate competition is copyright infringement. Any legal claim based on that assertion would be highly unlikely to succeed.