Copyright law is not a tool to punish or silence critics. This is a principle so fundamental that it is the ur-example of fair use, which typically allows copying another’s creative work when necessary for criticism. But sometimes, unscrupulous rightsholders misuse copyright law to bully critics into silence by filing meritless lawsuits, threatening potentially enormous personal liability unless they cease speaking out. That’s why EFF is defending Zachary Parrish, a parent in Indiana, against a copyright infringement suit by LifeWise, Inc.

LifeWise produces controversial “released time” religious education programs for public elementary school students during school hours. After encountering the program at his daughter’s public school, Mr. Parrish co-founded “Parents Against LifeWise,” a group that strives to educate and warn others about the harms they believe LifeWise’s programs cause. To help other parents make fully informed decisions about signing their children up for a LifeWise program, Mr. Parrish obtained a copy of LifeWise’s elementary school curriculum—which the organization kept secret from everyone except instructors and enrolled students—and posted it to the Parents Against LifeWise website. LifeWise sent a copyright takedown to the website’s hosting provider to get the curriculum taken down, and followed up with an infringement lawsuit against Mr. Parrish.

EFF filed a motion to dismiss LifeWise’s baseless attempt to silence Mr. Parrish. As we explained to the court, Mr. Parrish’s posting of the curriculum was a paradigmatic example of fair use, an important doctrine that allows critics like Mr. Parrish to comment on, criticize, and educate others on the contents of a copyrighted work. LifeWise’s own legal complaint shows why Mr. Parrish’s use was fair: “his goal was to gather information and internal documents with the hope of publishing information online which might harm LifeWise’s reputation and galvanize parents to oppose local LifeWise Academy chapters in their communities.” This is a mission of public advocacy and education that copyright law protects. In addition, Mr. Parrish’s purpose was noncommercial: far from seeking to replace or compete with LifeWise, he posted the curriculum to encourage others to think carefully before signing their children up for the program. And posting the curriculum doesn’t harm LifeWise—at least not in any way that copyright law was meant to address. Just like copyright doesn’t stop a film critic from using scenes from a movie as part of a devastating review, it doesn’t stop a concerned parent from educating other parents about a controversial religious school program by showing them the actual content of that program.

Early dismissals in copyright cases against fair users are crucial. Because, although fair use protects lots of important free expression like the commentary and advocacy of Mr. Parrish, it can be ruinously expensive and chilling to fight for those protections. The high cost of civil discovery and the risk of astronomical statutory damages—which reach as high as $150,000 per work in certain cases—can lead would-be fair users to self-censor for fear of invasive legal process and financial ruin.

Early dismissal helps prevent copyright holders from using the threat of expensive, risky lawsuits to silence critics and control public conversations about their works. It also sends a message to others that their right to free expression doesn’t depend on having enough money to defend it in court or having access to help from organizations like EFF. While we are happy to help, we would be even happier if no one needed our help for a problem like this ever again.

When society loses access to critical commentary and the public dialogue it enables, we all suffer. That’s why it is so important that courts prevent copyright law from being used to silence criticism and commentary. We hope the court will do so here, and dismiss LifeWise’s baseless complaint against Mr. Parrish.

Copyright’s fair use doctrine protects lots of important free expression against the threat of ruinous lawsuits. Fair use isn’t limited to political commentary or erudite works – it also protects popular entertainment like Tiger King, Netflix’s hit 2020 documentary series about the bizarre and sometimes criminal exploits of a group of big cat breeders. That’s why a federal appeals court’s narrow interpretation of fair use in a recent copyright suit threatens not just the producers of Tiger King but thousands of creators who make documentaries, histories, biographies, and even computer software. EFF and other groups asked the court to revisit its decision. Thankfully, the court just agreed to do so.

The case, Whyte Monkee Productions v. Netflix, was brought by a videographer who worked at the Greater Wynnewood Exotic Animal Park, the Oklahoma attraction run by Joe Exotic that was chronicled in Tiger King. The videographer sued Netflix for copyright infringement over the use of his video clips of Joe Exotic in the series. A federal district court in Oklahoma found Netflix’s use of one of the video clips—documenting Joe Exotic’s eulogy for his husband Travis Maldonado—to be a fair use. A three-judge panel of the Court of Appeals for the Tenth Circuit reversed that decision and remanded the case, ruling that the use of the video was not “transformative,” a concept that’s often at the heart of fair use decisions.

The appeals court based its ruling on a mistaken interpretation of the Supreme Court’s opinion in Andy Warhol Foundation for the Visual Arts v. Goldsmith. Warhol was a deliberately narrow decision that upheld the Supreme Court’s prior precedents about what makes a use transformative while emphasizing that commercial uses are less likely to be fair. The Supreme Court held that commercial re-uses of a copyrighted work—in that case, licensing an Andy Warhol print of the artist Prince for a magazine cover when the print was based on a photo that was also licensed for magazine covers—required a strong justification. The Warhol Foundation’s use of the photo was not transformative, the Supreme Court said, because Warhol’s print didn’t comment on or criticize the original photograph, and there was no other reason why the foundation needed to use a print based on that photograph in order to depict Prince. In Whyte Monkee, the Tenth Circuit honed in on the Supreme Court’s discussion about commentary and criticism but mistakenly read it to mean that only uses that comment on an original work are transformative. The court remanded the case to the district court to re-do the fair use analysis on that basis.

As EFF, along with Authors Alliance, American Library Association, Association of Research Libraries, and Public Knowledge explained in an amicus brief supporting Netflix’s request for a rehearing, there are many kinds of transformative fair uses. People creating works of history or biography frequently reproduce excerpts from others’ copyrighted photos, videos, or artwork as indispensable historical evidence. For example, using sketches from the famous Zapruder film in a book about the assassination of President Kennedy was deemed fair, as was reproducing the artwork from Grateful Dead posters in a book about the band. Software developers use excerpts from others’ code—particularly declarations that describe programming interfaces—to build new software that works with what came before. And open government organizations, like EFF client Public.Resource.Org, use technical standards incorporated into law to share knowledge about the law. None of these uses involves commentary or criticism, but courts have found them all to be transformative fair uses that don’t require permission.

The Supreme Court was aware of these uses and didn’t intend to cast doubt on their legality. In fact, the Supreme Court cited to many of them favorably in its Warhol decision. And the Court even engaged in some non-commentary fair use itself when it included photos of Prince in its opinion to illustrate how they were used on magazine covers. If the Court had meant to overrule decades of court decisions, including its own very recent Google v. Oracle decision about software re-use, it would have said so.

Fortunately, the Tenth Circuit heeded our warning, and the warnings of Netflix, documentary filmmakers, legal scholars, and the Motion Picture Association, all of whom filed briefs. The court vacated its decision and asked for further briefing about Warhol and what it means for documentary filmmakers.

The bizarre story of Joe Exotic and his friends and rivals may not be as important to history as the Kennedy assassination, but fair use is vital to bringing us all kinds of learning and entertainment. If other courts start treating the Warhol decision as a radical rewriting of fair use law when that’s not what the Supreme Court said at all, many kinds of free expression will face an uncertain future. That’s why we’re happy that the Tenth Circuit withdrew its opinion. We hope the court will, as the Supreme Court did, reaffirm the importance of fair use.

Twelve years ago, internet users spoke up with one voice to reject a law that would build censorship into the internet at a fundamental level. This week, the Motion Picture Association (MPA), a group that represents six giant movie and TV studios, announced that it hoped we’d all forgotten how dangerous this idea was. The MPA is wrong. We remember, and the internet remembers.

What the MPA wants is the power to block entire websites, everywhere in the U.S., using the same tools as repressive regimes like China and Russia. To it, instances of possible copyright infringement should be played like a trump card to shut off our access to entire websites, regardless of the other legal speech hosted there. It is not simply calling for the ability to take down instances of infringement—a power they already have, without even having to ask a judge—but for the keys to the internet. Building new architectures of censorship would hurt everyone, and doesn’t help artists.

The bills known as SOPA/PIPA would have created a new, rapid path for copyright holders like the major studios to use court orders against sites they accuse of infringing copyright. Internet service providers (ISPs) receiving one of those orders would have to block all of their customers from accessing the identified websites. The orders would also apply to domain name registries and registrars, and potentially other companies and organizations that make up the internet’s basic infrastructure. To comply, all of those would have to build new infrastructure dedicated to site-blocking, inviting over-blocking and all kinds of abuse that would censor lawful and important speech.

In other words, the right to choose what websites you visit would be taken away from you and given to giant media companies and ISPs. And the very shape of the internet would have to be changed to allow it.

In 2012, it seemed like SOPA/PIPA, backed by major corporations used to getting what they want from Congress, was on the fast track to becoming law. But a grassroots movement of diverse Internet communities came together to fight it. Digital rights groups like EFF, Public Knowledge, and many more joined with editor communities from sites like Reddit and Wikipedia to speak up. Newly formed grassroots groups like Demand Progress and Fight for the Future added their voices to those calling out the dangers of this new form of censorship. In the final days of the campaign, giant tech companies like Google and Facebook (now Meta) joined in opposition as well.

What resulted was one of the biggest protests ever seen against a piece of legislation. Congress was flooded with calls and emails from ordinary people concerned about this steamroller of censorship. Members of Congress raced one another to withdraw their support for the bills. The bills died, and so did site blocking legislation in the US. It was, all told, a success story for the public interest.

Even the MPA, one of the biggest forces behind SOPA/PIPA, claimed to have moved on. But we never believed it, and they proved us right time and time again. The MPA backed site-blocking laws in other countries. Rightsholders continued to ask US courts for site-blocking orders, often winning them without a new law. Even the lobbying of Congress for a new law never really went away. It’s just that today, with MPA president Charles Rivkin openly calling on Congress “to enact judicial site-blocking legislation here in the United States,” the MPA is taking its mask off.

Things have changed since 2012. Tech platforms that were once seen as innovators have become behemoths, part of the establishment rather than underdogs. The Silicon Valley-based video streamer Netflix illustrated this when it joined MPA in 2019. And the entertainment companies have also tried to pivot into being tech companies. Somehow, they are adopting each other’s worst aspects.

But it’s important not to let those changes hide the fact that those hurt by this proposal are not Big Tech but regular internet users. Internet platforms big and small are still where ordinary users and creators find their voice, connect with audiences, and participate in politics and culture, mostly in legal—and legally protected—ways. Filmmakers who can’t get a distribution deal from a giant movie house still reach audiences on YouTube. Culture critics still reach audiences through zines and newsletters. The typical users of these platforms don’t have the giant megaphones of major studios, record labels, or publishers. Site-blocking legislation, whether called SOPA/PIPA, “no fault injunctions,” or by any other name, still threatens the free expression of all of these citizens and creators.

No matter what the MPA wants to claim, this does not help artists. Artists want their work seen, not locked away for a tax write-off. They wanted a fair deal, not nearly five months of strikes. They want studios to make more small and midsize films and to take a chance on new voices. They have been incredibly clear about what they want, and this is not it.

Even if Rivkin’s claim of an “unflinching commitment to the First Amendment” was credible from a group that seems to think it has a monopoly on free expression—and which just tried to consign the future of its own artists to the gig economy—a site-blocking law would not be used only by Hollywood studios. Anyone with a copyright and the means to hire a lawyer could wield the hammer of site-blocking. And here’s the thing: we already know that copyright claims are used as tools of censorship.

The notice-and-takedown system created by the Digital Millennium Copyright Act, for example, is abused time and again by people who claim to be enforcing their copyrights, and also by folks who simply want to make speech they don’t like disappear from the Internet. Even without a site-blocking law, major record labels and US Immigration and Customs Enforcement shut down a popular hip hop music blog and kept it off the internet for over a year without ever showing that it infringed copyright. And unscrupulous characters use accusations of infringement to extort money from website owners, or even force them into carrying spam links.

This censorious abuse, whether intentional or accidental, is far more damaging when it targets the internet’s infrastructure. Blocking entire websites or groups of websites is imprecise, inevitably bringing down lawful speech along with whatever was targeted. For example, suits by Microsoft intended to shut down malicious botnets caused thousands of legitimate users to lose access to the domain names they depended on. There is, in short, no effective safeguard on a new censorship power that would be the internet’s version of police seizing printing presses.

Even if this didn’t endanger free expression on its own, once new tools exist, they can be used for more than copyright. Just as malfunctioning copyright filters were adapted into the malfunctioning filters used for “adult content” on tumblr, so can means of site blocking. The major companies of a single industry should not get to dictate the future of free speech online.

Why the MPA is announcing this now is anyone’s guess. They might think no one cares anymore. They’re wrong. Internet users rejected site blocking in 2012 and they reject it today.

Special thanks to EFF legal intern Alissa Johnson, who was the lead author of this post.

Earlier this month, the European Union Court of Justice ruled that harmonized standards are a part of EU law, and thus must be accessible to EU citizens and residents free of charge.

While it might seem like common sense that the laws that govern us should be freely accessible, this question has been in dispute in the EU for the past five years, and in the U.S. for over a decade. At the center of this debate are technical standards, developed by private organizations and later incorporated into law. Before they were challenged in court, standards-development organizations were able to limit access to these incorporated standards through assertions of copyright. Regulated parties or concerned citizens checking compliance with technical or safety standards had to do so by purchasing these standards, often at significant expense, from private organizations. While free alternatives, like proprietary online “reading rooms,” were sometimes available, these options had their own significant downsides, including limited functionality and privacy concerns.

In 2018, two nonprofits, Public.Resource.Org and Right to Know, made a request to the European Commission for access to four harmonized standards—that is, standards that apply across the European Union—pertaining to the safety of toys. The Commission refused to grant them access on the grounds that the standards were copyrighted.   

The nonprofits then brought an action before the General Court of the European Union seeking annulment of the Commission’s decision. They made two main arguments. First, that copyright couldn’t be applicable to the harmonized standards, and that open access to the standards would not harm the commercial interests of the European Committee for Standardization or other standard setting bodies. Second, they argued that the public interest in open access to the law should override whatever copyright interests might exist. The General Court rejected both arguments, finding that the threshold for originality that makes a work eligible for copyright protection had been met, the sale of standards was a vital part of standards bodies’ business model, and the public’s interest in ensuring the proper functioning of the European standardization system outweighed their interest in free access to harmonized standards.

Last week, the EU Court of Justice overturned the General Court decision, holding that EU citizens and residents have an overriding interest in free access to the laws that govern them. Article 15(3) of the Treaty on the Functioning of the EU and Article 42 of the Charter of Fundamental Rights of the EU guarantee a right of access to documents of Union institutions, bodies, offices, and agencies. These bodies can refuse access to a document where its disclosure would undermine the protection of commercial interests, including intellectual property, unless there is an overriding public interest in disclosure.

Under the ECJ’s ruling, standards written by private companies, but incorporated into legislation, now form part of EU law. People need access to these standards to determine their own compliance. While compliance with harmonized standards is not generally mandatory, it is in the case of the toy safety standards in question here. Even when compliance is not mandatory, products that meet technical standards benefit from a “presumption of conformity,” and failure to conform can impose significant administrative difficulties and additional costs.

Given that harmonized standards are a part of EU law, citizens and residents of member states have an interest in free access that overrides potential copyright concerns. Free access is necessary for economic actors “to ascertain unequivocally what their rights and obligations are,” and to allow concerned citizens to examine compliance. As the U.S. Supreme Court noted in in 2020, “[e]very citizen is presumed to know the law, and it needs no argument to show that all should have free access” to it.

The Court of Justice’s decision has far-reaching effects beyond the four toy safety standards under dispute. Its reasoning classifying these standards as EU law applies more broadly to standards incorporated into law. We’re pleased that under this precedent, EU standards-development organizations will be required to disclose standards on request without locking these important parts of the law behind a paywall.

It seems like a no-brainer that everyone should be able to read, copy, and share the laws we all must follow, but few things are simple in the internet age. Public.Resource.Org’s victory at the D.C. Circuit appeals court in September, in which the court ruled that non-commercial copying of codes and standards that have been incorporated into the law is not copyright infringement, was ten years in the making.

The American Society for Testing and Materials (ASTM), National Fire Protection Association Inc. (NFPA), and American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) are non-governmental organizations that develop codes and standards for building and product safety, compatibility, and spurring innovation. Regulators at all levels of government frequently incorporate these codes and standards into regulations, making them law. Public Resource, a nonprofit organization founded by Carl Malamud, collects and posts these laws online as part of its mission to make government more accessible to all. ASTM, NFPA, and ASHRAE sued Public Resource in 2013 for copyright and trademark infringement and unfair competition.

A federal trial court in Washington, D.C. initially ruled against Public Resource, and a three-judge panel of the D.C. Circuit then returned the case to the trial court for more fact-finding. This year, another panel of the D.C. Circuit found that Public Resource’s use of the standards is for nonprofit, educational purposes, that this use serves a different purpose than that of the plaintiffs, and that the evidence did not show significant harm to the standards organizations’ commercial markets. “Public Resource posts standards that government agencies have incorporated into law—no more and no less,” the court ruled. “If an agency has given legal effect to an entire standard, then its entire reproduction is reasonable in relation to the purpose of the copying, which is to provide the public with a free and comprehensive repository of the law.” Posting these codes online is therefore a fair use.

The decision also preserved equitable online access to the law. While the standards organizations put some of their standards into online “reading rooms,” the text “is not searchable, cannot be printed or downloaded, and cannot be magnified without becoming blurry. Often, a reader can view only a portion of each page at a time and, upon zooming in, must scroll from right to left to read a single line of text.” These reading rooms collect information about people who come to read the law and present access challenges for people who use screen reader software and other accessibility tools. The court recognized that Public Resource had stepped in to address this problem.

The internet lets more people understand and participate in government than ever before. It also enables new ways for powerful organizations to control and surveil people who simply want to do this. That’s why Public Resource’s work, and a balanced copyright law that protects access to law and participation in government, is so important.

This blog is part of our Year in Review series. Read other articles about the fight for digital rights in 2023.

At EFF, we spend a lot of time calling out the harm caused by copyright trolls and protecting internet users from their abuses. Copyright trolls are serial plaintiffs who use search tools to identify technical, often low-value infringements on the internet, and then seek nuisance settlements from many defendants. These trolls take advantage of some of copyright law’s worst features—especially the threat of massive, unpredictable statutory damages—to impose a troublesome tax on many uses of the internet.

On Monday, EFF continued the fight against copyright trolls by filing an amicus brief in Warner Chappell Music v. Nealy, a case pending in the U.S. Supreme Court. The case doesn’t deal with copyright trolls directly. Rather, it involves the interpretation of the statute of limitations in copyright cases. Statutes of limitations are laws that limit the time after an event within which legal proceedings may be initiated. The purpose is to encourage plaintiffs to file their claims promptly, and to avoid stale claims and unfairness to defendants when time has passed and evidence might be lost. For example, in California, the statute of limitations for a breach of contract claim is generally four years.

U.S. copyright law contains a statute of limitations of three years “after the claim accrued.” Warner Chappell Music v. Nealy deals with the question of exactly what this means. Warner Chappell Music, the defendant in the case, argued that the claim accrued when the alleged infringement occurred, giving a plaintiff three years after that to recover damages. Plaintiff Nealy argued that his claim didn’t “accrue” until he discovered the alleged infringement, or reasonably should have discovered it. This “discovery rule” would permit Nealy to recover damages for acts that occurred long ago—much longer than three years—as long as he filed suit within three years of that “discovery.”

How does all this affect copyright trolls? The “discovery rule” lets trolls reach far, far back in time to find alleged infringements (such as a photo posted on a website), and plausibly threaten their targets with years of accumulated damages. All they have to do is argue that they couldn’t reasonably have discovered the infringement until recently. The trolls’ targets would have trouble defending against ancient claims, and be more likely to have to pay nuisance settlements.

EFF’s amicus brief provided the court with an overview of the copyright trolling problem and gave examples of types of trolls. The brief then showed how an unlimited look-back period for damages under the discovery rule adds risk and uncertainty for the targets of copyright trolls and would encourage abuse of the legal system.

EFF’s brief in this case is a little unusual—the case doesn’t directly involve technology or technology companies (except indirectly, to the extent they could be targets of copyright trolls). The party we’re supporting is a leading music publishing company. Other amici on the same side include the RIAA, the U.S. Chamber of Commerce, and the Association of American Publishers. Because statutes of limitations are fundamental to the justice system, this infrequent coalition perhaps isn’t that surprising.

In many previous copyright troll cases, the courts have caught on to their abuse of the judicial system, and taken steps to shut down the trolling. EFF filed its brief in this case to ask the Supreme Court to extend these judicial safeguards, by holding that copyright infringement damages can only be recovered for acts occurring three years before the filing of the complaint. An indefinite statute of limitations would throw gasoline on the copyright troll fire and risk encouraging new trolls to come out from under the figurative bridge.