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The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.
The copyright statute does not empower copyright holders to override the fair use right by overbroad copyright notices or other unilaterally imposed provisions. -- University System of Georgia Regents Guide to Understanding Copyright and Educational Fair Use Librarians should be as aggressive in protecting the right of fair use as the publishers are in seeking to destroy it. -- Prof. L. Ray Patterson, University of Georgia |
The unique provision of of US copyright law is that it contains the doctrine of "fair use" that balances the intellectual property interests of authors, publishers and copyright owners with society's need for the free exchange of ideas. Taken together, fair use and other public rights to utilize copyrighted works, as confirmed in the Copyright Act of 1976, constitute a legal doctrines for promoting the dissemination of knowledge, while ensuring authors, publishers and copyright owners protection of their creative works and economic investments.
The fair use provision of the US Copyright Act of 1976 explicitly allows reproduction and other uses of copyrighted works for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research.
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http://www.tomwbell.com/writings/FullFared.html
Scholars have explained fair use in at least three ways: (1) as a proxy for a copyright owner's implied consent;[112] (2) as part of a bargain between authors and the public, struck on their behalf first by courts and then by Congress;[113] and (3) as a response to a market failure in private attempts to protect authors' expressions from undue copying.[114] The first of these three explanations has fallen into [p. 581/p. 582] disfavor because it does not explain why fair use protects parody and other uses of copyrighted material that owners find disagreeable.[115] The second explanation receives due consideration below.[116] The present subsection addresses the third explanation of fair use and argues that, as a response to market failure, the fair use doctrine can and should give way in the face of the effective enforcement of authors' rights through automated rights management.
Lawmakers enacted the Copyright Act to cure an alleged case of market failure: creating a work can cost authors a good deal, whereas copying a work costs free riders very little.[117] Absent special protection from such copying, the argument goes, authors will underproduce and the public will suffer. Copyright, as Justice Holmes explained, therefore "restrains the spontaneity of men where but for it there would be nothing of any kind to hinder their doing as they saw fit;"[118] namely, copying others' expressions at will. Perhaps [p. 582/p. 583] in the digital intermedia automated rights management will cure this market failure by protecting authors' works through technological and contractual means.[119] ARM's other curative effects interest us here, though.
Markets, like squeezed balloons, bulge outward where unconstrained. In its attempt to protect authors from the discouraging effects of unfettered copying, copyright law has thus created market failure elsewhere. The costs of avoiding infringement by obtaining permission to use a copyrighted work, and thus avoiding infringement claims, often exceed the benefits of the desired use. Such transaction costs threaten to prevent many socially beneficial uses of copyrighted works from taking place. The doctrine of fair use attempts to cure this particular market failure by excusing as non-infringing a limited (though poorly defined) class of uses of copyrighted works.[120] As Professor Gordon describes it, "courts and Congress have employed fair use to permit uncompensated transfers that are socially desirable but not capable of effectuation through the market."[121]
Understanding fair use as a response to market failure does much to explain the vagaries of its development in the case law.[122] More to the point, it lends support to the holding in American Geophysical. Consistent with the market failure theory of fair use, the court reasoned that "a particular unauthorized use should be considered 'more fair' when there is no ready market or means to pay for the use, while such an unauthorized use should be considered 'less fair' when there is a ready market or means to pay for the use."[123] In other words, the scope of the fair use defense rises and falls with the transaction costs of licensing access to copyrighted works.
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But how far can companies and the federal government go to protect content owners' copyrighted property from theft and misuse, and at the same time preserve such fundamental rights as freedom of speech and of the press? The tension between the two sets of interests requires a difficult balancing act, and the ease with which information can be transmitted and accessed in the digital age has raised the stakes. Congress has only begun to grapple with the economic and legal issues raised by the new information technologies. Internet-driven economic growth may stay in the doldrums, content owners say, until the government strikes a workable balance between the rights of content owners, content sellers, and content users.
The Fair-Use Faction Some of the most vocal groups in the copyright debate are library associations. They have vigorously demanded "fair-use" rights from book publishers, the motion picture industry, the recording industry, newspaper publishers, and database owners. They are also urging the Library of Congress to affirm those rights in a forthcoming report on digital copyright. "There is a gap between the price of information and the ability to pay, [so] the problem with the sole focus on economic interests is that it comes at the expense of society," said Prue Adler, the assistant executive director of the Association of Research Libraries.
Fair use gives consumers -- including librarians -- the legal right to distribute limited numbers of copies of copyrighted material, within strict guidelines. For example, an author can reprint parts of another author's writings, or a TV documentary producer can include a clip from the Dinosaur movie. But new anti-piracy technology cannot easily differentiate between fair use and illegal copying. That's why free-speech advocates fear the technology will produce many legal threats to authors and producers, thus stifling free speech.
Librarians want to be able to lend out copyrighted material without having to pay a fee to the content owners each time. While they failed to get a library exemption to the anti-circumvention provisions of the digital copyright act, they did have some success last month when the Senate passed a bill that would permit educational institutions to post copyrighted material on the Internet -- without additional payment -- for instructional purposes.
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Section Five of the GNU GPL says, "You are not required to accept this License ... However, nothing else grants you permission to modify or distribute the Program or its derivative works." Well, not quite, Rich.
The copyright laws include the doctrine of "fair use," which overcomes the exclusivity rights and other restrictions placed on copyrighted material and gives people the right to use copyrighted works without permission, even when permission is explicitly denied. See Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164 (1994).
Fair use may not seem fair to the author whose work is taken, but it is fair to society as a whole.
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In the past two years we have seen a major effort aimed at overhauling intellectual property law. Under the guise of responding to the challenge posed by the increasing amount of information in digital form, the content industry (publishers, motion picture studios, music distributors, etc.) has engaged in a veritable assault on long-standing public interest practices. In what law professor Pam Samuelson has termed the "Copyright Grab" (Samuelson), the content industry is exploiting concerns over digitization and attempting to reshape the law by strengthening protection for copyrightsholders and weakening public rights to access and use material.
In this paper, the author first examines intellectual property law's origins as an attempt to create a public good. He then discusses how both the advent of digital technology and the consolidation of control in the hands of the content industry have created new structural and economic conditions for intellectual property. He shows how the content industry has in the past tried to exploit changing underlying conditions in a effort to strengthen their ownership rights, and demonstrates how they are doing that again in the current environment. Finally, he cites the threat to "social good" from the content industry's continuing success at reshaping public policy.
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Communications of the ACM (vol. 44, no. 3, Mar. 2001)
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This paper was prepared for the 98 International Symposium on the Protection of Intellectual Property for the 21st Century, October 28-30, 1998, in Beijing, PRC.
Among the other limitations or exceptions to copyright that can promote innovation are the fair quotation and fair use doctrines of Chinese and other national copyright laws.52 New ideas emerge as subsequent authors make transformative uses of portions of pre-existing works in the course of commenting on earlier works.53 Recent Chinese interpretations of its fair quotation rule are consistent with international standards. For example, the author of a book about the last emperor of China successfully invoked China's fair quotation rule in defending against a copyright claim in an unpublished diary because it satisfied the three criteria used in judging fair quotations under Chinese law.54 Those criteria were not, however, satisfied in another case in which a playwright reproduced the menu of a famous Peking duck recipe in a dramatic play.55
Although China does not presently have a general fair use provision akin to that in U.S. copyright law, it might want to consider adopting such a rule. In times of rapid technological change, a general fair use doctrine gives the courts some flexibility in applying copyright law to respond to situations not foreseen by lawmakers in a balanced way.56 In the United States, for example, the fair use doctrine helped the U.S. Supreme Court decide how to deal with a new technology issue that the U.S. Congress had not considered in enacting copyright law, namely, whether home videotaping of movies from broadcast television was fair use. After weighing various factors and balancing the competing interests, the U.S. Supreme Court in Sony Corp. of America v. Universal City Studios decided that such taping was fair use.57 Even though the motion picture industry initially tried to stop the sale of videotape machines, the widespread availability of these machines opened up vast new markets for videocassettes. This brought substantial benefits to the motion picture industry whose fears of this new technology turned out to be unfounded.
While the private use exception in Article 22 of China's copyright law might allow the kind of home taping involved in the Sony case, it is less clear whether this or other exceptions in Article 22 would have sufficient flexibility to deal with other challenging new technology issues. How, for example, would Chinese courts to deal with the new technology question posed in the Lewis Galoob Toys v. Nintendo of America case?58 Galoob's "Game Genie" was a device that enabled consumers to temporarily change the audiovisual display of Nintendo games, for example, by increasing the number of lives of a fictional videogame character.59 Nintendo alleged that use of the Game Genie infringed the derivative work rights in its games. Congress had never contemplated this issue nor was there any close precedent, so the U.S. courts used fair use to balance the interests of the videogame copyright owner, the maker of the Game Genie, and the public. The courts decided that no infringement had occurred.
Fair use has also proved useful in dealing with another controversial interoperability issue: whether developers of computer programs can lawfully "decompile" programs of their competitors for the purpose of discerning details of the other program's interface in order to develop a new noninfringing program that will interoperate with the other program. (Decompilation inevitably requires making some copies of the text of a computer program.) A number of decisions in the U.S. have invoked fair use to allow decompilation for purposes of achieving interoperability.60 The European Union, whose member states do not have U.S.-style fair use rules, reached the same result, although it did so by a different route, that is, by adopting a special exception to legalize decompilation for interoperability purposes.61 In early 1997, Hong Kong considered adopting an EU-style special exception for decompilation, but was persuaded by U.S. industry groups and officials that a fair use rule was a preferable way to balance the interests at stake when decompilation occurs.62 This suggests that China could adopt a general fair use provision to achieve the same goals of promoting innovation and competition in a balanced way.
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"Fair Use of Copyrighted Works: A Crucial Element in Educating America" http://www.cetus.org/fairindex.html
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http://palimpsest.stanford.edu/bytopic/intprop/crews.html
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First Sale Doctrine
The first sale doctrine may invalidate restrictions on use. It is impermissible for the holder of a patent to impose restrictions on the use of a patented product after the product has been sold. Restrictions may be imposed, however, on persons who merely license the product.[18] The rationale for this limit on the power of the owner of the intellectual property interest is that to allow limitations on use of the product would interfere with competition beyond what the Congress - and arguably the drafters of the Constitution - intended in setting up the patent system.
The first sale doctrine applies to copyright owners.[19] Indeed, because of the First Amendment's protection of informational activity, the argument against restrictions after the first sale may be even stronger in the copyright arena than in the patent arena.
The first sale doctrine is potentially important because it may invalidate restrictions imposed on the use of information beyond what is authorized by the Copyright Act and by common law on trade secrets. Thus, there may be serious questions about the legal efficacy of use restrictions, although such restrictions are common in remote database service agreements. The vendors could argue that the limitations pertain to the contractual terms for delivery of a service rather than use of information as such. The characterization avoids the overlap with copyright and thus may also avoid the conflict between federal policy and contract enforcement.[20]
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Libraries obtain their "public lending right" from the first sale doctrine.19 Section 109 of the Act states that "[n]otwithstanding the provisions of section 106(3) [the distribution right], the owner of a particular copy or phonorecord . . . is entitled, without the authority of the copyright owner, to sell, or otherwise dispose of the possession of that copy . . . ."20 Thus, once a public library or school lawfully obtains copyrighted material, it may freely distribute or lend this material to the public, without paying royalties to the copyright owners. By design, first sale affects the "distribution right" only.21 The remaining exclusive rights such as the "right to reproduce" remain with the copyright holder after the work's transfer and/or sale. As a result, libraries cannot reproduce copyrighted works from their collection without seeking the benefit of fair use or other statutory limitations.22
Fair use is a codification of common law, and allows for copying certain portions of copyrighted material for "criticism, comment, news reporting, teaching, scholarship, or research," without infringing the copyright.23 Individuals often rely on public libraries and/or schools for educational, research, or scholarship information. Thus, the fair use doctrine remains a powerful tool for providing access to such information.
It is undisputed that the Copyright Act's exclusive rights and limitations protect copyrightable information contained in hard text.24 Unfortunately, the Act is silent on how its exclusive rights or limitations attach to copyrightable digital transmissions. Because digital transmissions from one computer network to another are arguably "fixed" under section 102,25 the exclusive rights presently enumerated in the Copyright Act probably protect Internet digital transmissions. Similarly, first sale26 and fair use27 must liberally apply to Internet material accessed for education, research, and scholarship. Unfortunately, only a few lobby on behalf of non-profit libraries and schools, as opposed to the large number of big, powerful firms representing the interests of copyright owners.28 Thus, it is no surprise that the "White Paper" issued by President Clinton's Working Group on Intellectual Property states that the ethereal nature of digital transmissions and the ease of undetectable copying29 necessitate amending existing copyright law to ensure adequate protection for copyright owners.30 The Digital Millennium Copyright Act of 1998 (DMCA) addresses essential issues raised by the White Paper. Although the DMCA deals extensively with limitations on internet service provider31 liability and the circumvention of technical measures to prevent access to copyrighted works, it fails to resolve the first sale discrepancy and gives lip service to the fair use defense. For example, section 1201 merely notes that "[n]othing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title."32
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...A COUPLE OF YEARS AGO I WAS TALKING WITH A LAW SCHOOL COLLEAGUE about cyberlaw and the people who study it. "I've always wondered," he said, "why all the cyberprofs hate copyright."
I don't actually hate copyright, and yet I knew just what he meant. Almost all of us who study and write about the law of cyberspace agree that copyright law is a big mess. As far as I can tell, federal courts experts don't reject our system of federal courts, and criminal law experts split every which way on the overall virtue of the criminal justice system. So what's with our uniform discontent about copyright?
I think an answer can be gleaned from tax scholars. Without decrying the concept of taxation, every tax professor I've met regards the U.S. tax code with a kind of benign contempt, explaining it more often as a product of diverse interests shaped from the bottom up than as an elegant set of rules crafted by legal artisans to align with high-level principles.
Copyright is like that, too. While I hate its Platonic form no more than the typical tax maven hates Tax, I find myself struggling to maintain the benign part of my contempt for its ever-expanding 21st-century American incarnation. A gerrymandered tax code primarily costs the public money-measured by overall inefficiency or extra taxes unfairly levied on those without political capital. But copyright's cost is measured by the more important if inchoate currency of thoughts and ideas.
We live today under two copyright regimes: the law on the one hand and reality as experienced by the public on the other. The law-Title 17 of the federal code-proscribes such acts as the public performance of music without payment to the composer or the copying of books without permission of the author (or more likely the company to whom the author long ago assigned rights).
The limits on behavior enumerated in Title 17 have gone far beyond the wholesale copying of books, maps, and charts covered by the first copyright act of 1790. They extend to computer software, dances, boat hulls (delineated in a 1998 amendment as "the frame or body of a vessel including the deck of a vessel, exclusive of masts, sails, yards, and rigging"), and music-Congress covered performances in 1909 and copies of sound recordings in 1971. What the public can and can't do is described at a level of detail worthy of the most byzantine tax code.
For example, bars and restaurants that measure no more than 3,750 square feet (not including the parking lot, as long as the parking lot is used exclusively for parking purposes) can contain no more than four TVs (of no more than 55 inches diagonally) for their patrons to watch, as long as there is only one TV per room. The radio can be played through no more than six loudspeakers, with a limit of four per room, unless the restaurant in question is run by "a governmental body or a nonprofit agricultural or horticultural organization, in the course of an annual agricultural or horticultural fair or exhibition conducted by such body or organization." Then it's OK to use more speakers.
This astonishingly intricate copyright regime isn't created only by statutes, of course. The notion of "contributory" copyright infringement-aiding and abetting copycats-was devised by judges. In conjunction with a statutory limit on creating "derivative" works of a copyrighted original, a theory of contributory infringement led a couple of courts to outlaw the production by third parties of cassette programs designed to be inserted into the belly of Teddy Ruxpin talking stuffed animals. The idea was that by pushing "Play" when a non-Teddy Ruxpin story tape was inside the creature, children would be creating a derivative, contraband "audiovisual work comprising animated plush toy bear with unique voice." Since toddlers are largely unsusceptible to cease-and-desist letters, it fell to the cassette makers to stop abetting the kids' illegal behavior.
Still, Title 17 remains stubbornly vague, recalling Woody Allen's indictment of a bad restaurant: "The food at this place is really terrible . . . and such small portions." Including Allen's quotation here is probably fair use-but I'd have to risk a lawsuit to be sure. (He might have a similar worry, since he didn't come up with the joke in the first place.) No wonder most publishers proceed as if fair use doesn't exist, asking permission to use every quote or, failing that, doing without.
Title 17's copious detail used to trouble only professional (re)publishers and their lawyers. The title's reach has tended, as a practical matter, to leave individuals unaffected. The examples above might make for cocktail party curiosities, but whatever their indirect public effects-a craned neck as a result of trying to watch the sole television in a large barroom, or a child deprived of the full range of Teddy Ruxpin stories-they don't directly constrain individual behavior, which has been de facto governed by the second regime of reasonable practice.
The public has instinctively controlled its potentially copyright-infringing urges not through knowledge of the law but thanks to the combined weight of conscience and convenience. It's a hassle to photocopy a book cover to cover, so most of us don't bother to do it, and those who do are possibly such cheapskates that they wouldn't buy the original to begin with. (Kinko's-which lost hundreds of thousands of dollars in a 1991 lawsuit brought by publishers over a dozen course packs that included copies of book chapters-won't copy a whole book on someone else's behalf.) Still others might actually think it wrong to make wholesale copies. They might choose to copy only a few pages or to buy the complete work.
As Title 17 has expanded, the corporate and individual regimes have diverged further and further, at odds but not in friction. The former is subject to increasing numbers of exceptions, counterexceptions, contractual agreements, and licenses among lawyers. The latter bumps along simplistically, limited by the amount of copying anyone could or would do as a practical matter.
When points of friction have threatened, the publishers have taken quick action, ferociously fighting against any perceived encroachment on copyright's rights and its associated cash flows. Recall the reaction of the Motion Picture Association of America to the prospect of a VCR. "The VCR is to the American film producer . . . as the Boston Strangler was to the woman alone," warned Jack Valenti, the president of the powerful group. In the now-famed Sony case of 1984, the U.S. Supreme Court held in a 5-4 decision that the VCR was not an illegal instrument of contributory copyright infringement. Valenti to this day rues the loss despite the staggering revenues gleaned from video rentals ever since.
When digital audio tape recorders (DATs) threatened to enable individuals to make perfect copies of CDs, and copies of those copies, the music publishers prodded Congress into passing the Audio Home Recording Act of 1992, which required producers of DATs to incorporate the "Serial Copy Management System" in its products. The SCMS is defined nowhere in a statute that goes to the trouble of defining such words as "children" and "parking lots." But it prevents a DAT from making a copy of a copy if the copy is digitally labeled "do not copy me."
Taking a lesson from the loss in the VCR case, MPAA lobbyists won provisions for a tax on the producers of digital recorders and blank digital tapes. The tax revenues do not go to the government; they are remitted to publishers according to a scheme that demonstrates just how many parties wanted a slice of the pie. Title 17 now contains such gems as "2 5/8 percent of the royalty payments allocated to the Sound Recordings Fund shall be placed in an escrow account managed by an independent administrator jointly appointed by the interested copyright parties described in section 1001(7)(A) and the American Federation of Musicians (or any successor entity) to be distributed to nonfeatured musicians (whether or not members of the American Federation of Musicians or any successor entity) who have performed on sound recordings distributed in the United States." As a result of the law, DAT players were stillborn, so there were few spoils to split-no doubt a perfectly acceptable outcome to the publishers.
With the advent of the DVD player, manufacturers and publishers came together to create a nonprofit association that would control a "secret recipe" for decoding DVDs. Anyone who wanted to make a DVD player had to obtain the recipe. It was given only in exchange for a promise that the DVD player would have certain copy protections in place-such as conveying a signal that would jam a VCR trying to record a DVD-and that the player would incorporate "regional coding," which meant that DVDs from one continent wouldn't function in the players from another. This enabled DVDs to be released in different regions at different times and ensured that those licensed to sell DVDs in one region wouldn't have to worry about having their prices undercut by sellers exclusively licensed to sell in other regions.
THEN CAME FILE SWAPPING ON THE NET and the all-purpose computers attached to it. With the right software, individuals could copy digital content perfectly, quickly, and cheaply-and the presence of a © symbol did little to deter them from doing so.
In theory, of course, Title 17 applies to everyone. Even the Sony case of 1984 included a token individual defendant, a VCR owner who was the alleged direct infringer. But no one demanded that he pay damages or change his behavior. More recently the Recording Industry Association of America has sought the identities of individuals who use Internet file-trading services and has brought (and settled) suits against college students alleged to be organizing file-swapping circles within their university intranets.
The recording industry is not going to sue the tens of thousands of Americans who engage in these practices. But it hopes to make an example of a few users to add teeth to the infringement warnings that file-swapping services send to their customers-and to pressure those services to pressure their customers to stop copying files.
The RIAA shut down Napster for providing services to Netizens to facilitate the sharing of copyrighted and public domain files alike without taking steps to filter out the former. (And Universal Music Group and a unit of the EMI group are now suing a venture capital firm for daring to finance Napster, under what seems to be a novel Russian-doll theory of contributory contributory copyright infringement.) The fact is that the Internet was built to copy things. Microsoft Windows's "Network Neighborhood" feature, for example, is simply a way to swap files. Almost every software application that capitalizes on this central functionality is therefore a Kinko's of sorts, and decreeing all search-and-copy software to be illegal is simply too sweeping a move for a court to make.
Publishers have successfully lobbied for widely reviled legislation to respond to this problem. The proposed legislation would require software and hardware makers to incorporate copy controls similar to those demanded of DAT manufacturers into PCs and other digital devices capable of displaying content.
But publishers are also taking the battle to other fronts, to Internet Service Providers, or ISPs. ISPs have little interest in becoming the Net police. They exist to move data around or to host it. A group with a decent amount of political power-whose members include Verizon, Comcast, AOL, MCI, and, of course, Microsoft-ISPs obtained a federal exemption in 1996 from nearly any liability under state common law for hosting defamatory or other harmful content. If someone posts a message on AOL calling another company's CEO a cheat and a fraud, depressing that company's stock price, AOL is under no obligation to take down the posting, even if the company has pointed out its manifest falsity.
ISPs have no such blanket exemption from liability for hosting or carrying unauthorized copyrighted material. No statute clearly sets out what is legally required of ISPs-and courts have interpreted the obligations of ISPs in different and conflicting ways. CEOs or university administrators providing Internet access to their employees or students don't know what their legal responsibilities are. When they receive letters insisting that they stop allegedly illegal activity on their networks, they gravitate towards a statutory "safe harbor" and take down challenged material-or deny network access to anyone accused of bad copyright behavior.
How is it that IT and ISP industries easily 10 times the size of their publishing counterparts are being harnessed to the needs of their little siblings? Because it's the status quo, some people see the current allocation of rights and duties under copyright as fair, and the happenstance of technical innovation that might displace it as unfair. A meatier argument is that copyright provides incentives for innovation, and if copyright is rendered ineffective, the creators create less or cease altogether.
What's obscured in that analysis is due credit for the longstanding status quo of individual practice in spite of (and previously alongside) Title 17. The Net forces us to confront the contradictions between what the law requires and what individuals do. Initial attempts to reconcile the two have been disappointing. Take, for example, the new phenomenon of music "webcasting," a digital transmission of audio that appears to the user like a traditional broadcast-except that it's available over a computer network. Under the 1909 copyright law and its progeny, a song's composers collect royalties for a "public performance" like the radio broadcast of a CD. No money is owed to the record company, since the CD isn't copied. Actually copying the CD is a right typically reserved to the recording artist (which means the producing record company) under the 1971 law and its progeny, and if permission is granted (usually in exchange for money), no money is owed to the composer of the song for the creation of the copy.
So, a question perfect for a copyright exam circa 1997: Who should collect when a song is webcast, since it acts like a broadcast (remember the 1909 law) but, technically speaking, a temporary copy is made of the song in the computer's memory (the 1971 law)? Should it be the composers or the record companies?
In 1998, Congress answered "Yes." A webcaster owes both. How much is owed to the record companies? Whatever they want to charge, if they want to allow the webcast at all. Unless, of course, a webcaster qualifies for a compulsory license by-and this is in the law-transmitting during any given three-hour period no more than any of (1) three different selections of sound recordings from any one CD, if no more than two such selections are transmitted consecutively, and (2) four different selections of sound recordings by the same featured recording artist or from any set or compilation of CDs distributed together, if no more than three such selections are transmitted consecutively. Got that? Oh, and the webcaster must take care not to preannounce what songs are about to be played. Hew to all these rules, and you still pay-it's just that the rate, rather than being set by the record company, is set under the law by a three-judge arbitration panel after taking weeks of testimony, as long as the panel is not overruled (as really happened) by a subsequent act of Congress setting entirely different rates.
The Internet links people together point to point, enabling individuals to broadcast as well as to consume audio streams. But they won't broadcast if they can't figure out how to do so lawfully, or if they can't afford to do so after being charged twice. Cheap software lets individuals prepare new works from the old, mixing and matching in the finest traditions of jazz improvisation. But people won't do it if they receive a notification of termination of their Internet service.
YES, I HATE THE EFFECTS OF COPYRIGHT ON A DIGITAL REVOLUTION that heralds so much more than the banal ripping off of CD tracks. I hate that creativity is metered and parceled to its last ounce of profit. I hate that our technology is hobbled beyond its paper and other analog counterparts so that it permits us to view but not print, listen but not share, read once but not lend, consume but not create. But I can hate this situation without believing that the idea of copyright is fundamentally flawed. The framers' vision of intellectual property (then known as "monopolies") called for built-in limits to a creator's exclusive rights. A copyright term, for example, would expire even if a work still held commercial value.
So why should we care who gets the merchandising deal from a movie or the song tie-in on a variety show? One reason is that the publishers' sights are set on the public. It is, for example, technically against the law for Girl Scouts to sing "This Land Is Your Land" and "Puff, the Magic Dragon" around a campfire without paying royalties. The American Society of Composers, Authors and Publishers tried to collect such royalties. It backed off only after it faced public outrage-which was fanned by restaurateurs wanting to play the radio without having to pay fees. It now charges the Scouts $1 a year, foregoing real profits while making it clear that the girls sing only by ASCAP's belatedly good graces.
Attempts to reconcile the colliding regimes of statute and practicality, law and life, have been hamfisted at best. A formal report by a commission chartered by the British Patent and Trademark Office suggests, without a trace of self-consciousness, that we encourage schoolchildren to include the © symbol on all their homework. The Business Software Alliance, a commercial software industry group, just unveiled playitcybersafe.com, a website for kids to inculcate the values of Title 17 over those of consumer praxis. There a kid can play Piracy Deepfreeze, becoming a crusading . . . ferret. "Stop the pirates from freezing the city! Throw your ball into the pirates and their stolen software before they hit the ground."
It's time for us to wise up and to redraw copyright's boundaries so that the law and reasonable public expectations fall into better alignment with one another. To be sure, this may require more, rather than less, subtlety. We should treat protections for computer software in a different way than music, for example, and lengthy copyright terms should be available only to those who bother to check in with the Copyright Office every few years. But we do ourselves a disservice by fixating on current income structures and not thinking about future possibilities premised on amazing technological advances, especially when the rights at issue concern the flows of ideas, something fundamental to free societies.
Scholars like William Fisher of Harvard Law School have floated ideas as sensible as they are radical-not to mention offensive to almost every interest in the copyright debates, from publisher to middleman to anarchist. He suggests in an upcoming book that ISPs remit to publishers a fee loosely based on the amount of copyrighted digital content that they are roughly calculated to be carrying, at which point people can trade music to their hearts' content.
Overhauling copyright will have costs to some. In the absence of tough copyright controls, investors may decide not to underwrite a $200 million blockbuster film because copying of the final product may unduly reduce their expected profit. But the cost of making no change at all must also be soberly assessed because the Internet offers such a staggering potential for the rapid transformation and evolution of ideas-a veritable Jazz Age of creation enabled by technology.
I pay my taxes. I have no idea how to calculate them, but I do what Turbotax tells me to. I'll pay a copyright tax, too, and willingly support artists whose work I appreciate, because it's the right thing to do and because it guarantees that more work will be made available to me. I'm not alone. So: Let's imagine a world in which Teddy Ruxpin can say whatever he wants, where kids can play with computers that are not digitally locked down, where bars and restaurants can stop measuring their TVs and their parking lots, and where amateur webcasters can create thousands of radio stations featuring songs we like, perhaps ones that sound familiar but that have new elements to them. We'll still buy concert tickets, books, and CDs and their digital descendants. They'll be competing with a lot more, though-created for fun, even if it happens to turn a profit.
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SUL Copyright & Fair Use -- nice collection of materials
Copyright Management Center Fair Use for Teaching & Research
[Samuelson1994a] "Copyright, Digital Data, and Fair Use in Digital Networked Environments," Online Paper, S.D. 08/03/94. URL: http://www.droit.umontreal.ca/crdp/en/equipes/technologie/conferences/ae/samuelson.html
See also Copyright's Fair Use Doctrine and Digital Data by Pam Samuelson Communications of the ACM (vol. 37, no. 1, Jan. 1994)
[Samuelson1994b] Self-Plagiarism or Fair Use?, Communications of the ACM (vol. 37, no. 8, Aug. 1994)
[Samuelson1998] Samuelson, P. Fair Use or Fair License? Wired (vol. 6.05, issue 100, May 1998)
If the current UCC 2B language is adopted, no longer will you "buy" information and reuse it as you wish. Instead, you'll "license" it on specific terms set by the licensor.
As the drafting process continues, it's not clear whether intellectual property law will continue to provide default rules for information transactions. For instance, if copyright law gives you the right to make backup copies of software, should Microsoft be able to use a shrink-wrap license to prohibit such practices and override your federal rights? Although UCC 2B doesn't specify, your fair use rights hang in the balance.
[Bell1998] Bell, T. W. "Fair Use Vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine," 76 NC L. Rev., (1998), pp 557-619. URL: http://www.tomwbell.com/writings/FullFared.html
Scholars have explained fair use in at least three ways: (1) as a proxy for a copyright owner's implied consent;[112] (2) as part of a bargain between authors and the public, struck on their behalf first by courts and then by Congress;[113] and (3) as a response to a market failure in private attempts to protect authors' expressions from undue copying.[114] The first of these three explanations has fallen into [p. 581/p. 582] disfavor because it does not explain why fair use protects parody and other uses of copyrighted material that owners find disagreeable.[115] The second explanation receives due consideration below.[116] The present subsection addresses the third explanation of fair use and argues that, as a response to market failure, the fair use doctrine can and should give way in the face of the effective enforcement of authors' rights through automated rights management.
Lawmakers enacted the Copyright Act to cure an alleged case of market failure: creating a work can cost authors a good deal, whereas copying a work costs free riders very little.[117] Absent special protection from such copying, the argument goes, authors will underproduce and the public will suffer. Copyright, as Justice Holmes explained, therefore "restrains the spontaneity of men where but for it there would be nothing of any kind to hinder their doing as they saw fit;"[118] namely, copying others' expressions at will. Perhaps [p. 582/p. 583] in the digital intermedia automated rights management will cure this market failure by protecting authors' works through technological and contractual means.[119] ARM's other curative effects interest us here, though.
Markets, like squeezed balloons, bulge outward where unconstrained. In its attempt to protect authors from the discouraging effects of unfettered copying, copyright law has thus created market failure elsewhere. The costs of avoiding infringement by obtaining permission to use a copyrighted work, and thus avoiding infringement claims, often exceed the benefits of the desired use. Such transaction costs threaten to prevent many socially beneficial uses of copyrighted works from taking place. The doctrine of fair use attempts to cure this particular market failure by excusing as non-infringing a limited (though poorly defined) class of uses of copyrighted works.[120] As Professor Gordon describes it, "courts and Congress have employed fair use to permit uncompensated transfers that are socially desirable but not capable of effectuation through the market."[121]
Understanding fair use as a response to market failure does much to explain the vagaries of its development in the case law.[122] More to the point, it lends support to the holding in American Geophysical. Consistent with the market failure theory of fair use, the court reasoned that "a particular unauthorized use should be considered 'more fair' when there is no ready market or means to pay for the use, while such an unauthorized use should be considered 'less fair' when there is a ready market or means to pay for the use."[123] In other words, the scope of the fair use defense rises and falls with the transaction costs of licensing access to copyrighted works.
Last updated: March 12, 2019
