Section 107 and 108 forensics
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Section 107 108 copyright law forensics debate overview
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17 USC 107 108 fair use library exemption forensics speech debate
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Here is a thorough breakdown of 17 U.S.C. §§ 107 and 108 and how they interact in the copyright law context.
17 U.S.C. § 107 - Fair Use
Section 107 is the general fair use doctrine - a flexible, fact-specific defense to copyright infringement that applies to everyone (individuals, educators, researchers, libraries, etc.).
Statutory Text (key language)
"The fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."
The Four-Factor Test
Fair use is determined by weighing all four factors together - no single factor is dispositive:
| Factor | What Courts Look At |
|---|---|
| 1. Purpose and character of use | Is it commercial or nonprofit/educational? Is it transformative (adds new meaning, expression, or message)? Transformativeness carries the most weight. |
| 2. Nature of the copyrighted work | Is the original factual or creative? Copying factual works gets more latitude than copying fiction or art. |
| 3. Amount and substantiality taken | How much of the original was used? Was the "heart" of the work copied even if only a small portion? |
| 4. Effect on the potential market | Does the use harm the market for (or value of) the original work or its licensing market? Courts consider this the most important factor in many cases. |
Important notes on § 107
- The list of purposes (criticism, teaching, research, etc.) is illustrative, not exhaustive - a use doesn't automatically qualify just because it fits one of those categories.
- Fair use is an affirmative defense, not a pre-clearance right. You assert it after a claim of infringement.
- There is no "30 seconds," "10%," or "250 words" safe harbor - those are myths. The analysis is always contextual.
- Section 107 explicitly states that nothing in § 108 limits fair use rights. The two provisions are additive.
17 U.S.C. § 108 - Reproduction by Libraries and Archives
Section 108 grants specific, defined exemptions to qualifying libraries and archives (and their employees) that go beyond what fair use alone might permit - but it is narrower and more rule-bound than § 107.
Who qualifies under § 108?
A library or archive must:
- Be open to the public, or available to researchers in a specialized field
- Have no direct or indirect commercial advantage from reproductions
- Include a copyright notice on all copies made
Key subsections
| Subsection | What it permits |
|---|---|
| § 108(b) | Copies of unpublished works for preservation/security/deposit in another qualifying institution |
| § 108(c) | Copies of published works to replace damaged, deteriorating, lost, or stolen copies - only if a replacement can't be obtained at a fair price |
| § 108(d) | A single copy of an article or small portion of a larger work for a patron's private study, scholarship, or research (must include copyright warning) |
| § 108(e) | A copy of an entire work for a patron, if the library has first determined a copy cannot be obtained at a fair price |
| § 108(f)(1) | Libraries are not liable for patrons' unsupervised use of copying equipment, provided a copyright notice is posted |
| § 108(g) | Prohibits "systematic" copying (i.e., a library cannot orchestrate large-scale reproduction to substitute for subscriptions), and governs interlibrary loan (ILL) - the CONTU Guidelines inform what is "systematic" for ILL |
| § 108(h) | During the last 20 years of a work's copyright term, libraries may reproduce/distribute/display/perform a work for preservation, scholarship, or research purposes if it is not commercially available |
What § 108 does NOT cover
- Musical works, pictorial/graphic/sculptural works, and motion pictures are generally excluded from § 108 exemptions (subsection (i)) - though § 107 fair use still applies to them.
- The exemption is for single copies in most cases - not bulk reproduction.
- It does not override contractual restrictions (e.g., a database license that prohibits ILL).
How §§ 107 and 108 Interact
This is the core analytical point in the "forensics" (copyright law practice) context:
- § 108 does not limit § 107. Section 108(f)(4) explicitly states it does not "in any way affect the right of fair use as provided by section 107."
- The two work as parallel, independent pathways. A library can rely on either or both.
- § 108 provides bright-line rules (more certainty, narrower scope); § 107 provides flexible analysis (less certainty, broader potential scope).
- In practice: reserve room copies, course packets, and classroom reproductions are analyzed under § 107, not § 108, because § 108 only permits single copies while § 107 can accommodate multiple copies for classroom use.
- A use that fails § 108 (e.g., it's a musical work, or there's no single-copy limit) can still be saved by § 107 if the four-factor analysis supports it.
Key Cases Involving §§ 107/108 in Library/Archive Contexts
- Cambridge Univ. Press v. Patton (11th Cir., 2014 & 2016) - "Georgia State" e-reserves case; applied § 107 four-factor analysis to digital course readings; found most individual chapter copies were fair use.
- Authors Guild v. HathiTrust (2d Cir. 2014) - Mass digitization by research libraries; found fair use (§ 107) for full-text search and access for print-disabled users.
- Authors Guild v. Google (2d Cir. 2015) - Snippet search of millions of books; fair use upheld as highly transformative under § 107.
- Capitol Records v. ReDigi (2d Cir. 2018) - Confirmed § 108 exemptions are narrow and do not extend to commercial digital resale platforms.
Practical Summary
| Feature | § 107 (Fair Use) | § 108 (Library Exemption) |
|---|---|---|
| Who can use it | Anyone | Qualifying libraries/archives only |
| Analysis type | Flexible 4-factor balancing | Specific, defined conditions |
| Number of copies | No set limit (context-dependent) | Generally one copy |
| Musical/AV works | Applies | Mostly excluded |
| Overrides contracts | No | No |
| Relationship to each other | Not limited by § 108 | Does not limit § 107 |
The central takeaway is that § 108 is a floor, not a ceiling - it provides safe harbors for libraries beyond what fair use guarantees, but fair use remains fully available on top of those protections.
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