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Transforming “Transformative Use”: The Growing Misinterpretation of the Fair Use DoctrineStarting in late 2012, and continuing into late 2013, the United States District Court for the Southern District of New York wreaked havoc on the traditional interpretation of the copyright infringement defense known as “fair use.” Two cases stemming from the advent of the Google Books Project are Author’s Guild, Inc. v. HathiTrust and Author’s Guild, Inc. v. Google, Inc. These cases adopted a controversial interpretation of the fair use defense, codified in 17 U.S.C. § 107, when each case determined that the mass digitization of thousands of books constituted fair use merely because the digitization was what is known as “transformative use.” This Comment will explore the background of the fair use defense, from its common law origins, to its codification in the 1976 Copyright Act, to its application in modern law. Keeping this background in mind will explain why the current legal state of the fair use defense, as propagated by the District Court for the Southern District of New York and the United States Courts Appeals for the Ninth Circuit, is inconsistent with traditional statutory construction principles. Proposed recommendations to solve legal inconsistencies in Section 107 can come from clarification either from Congress by way of an amendment to this Section, or by a decision from the United States Supreme Court.
Fair Use and Social MediaThis poster was created in a collaborative effort by Musselman Library’s Copyright Committee as part of a display for Fair Use Week 2018. The poster was intended to get viewers to think about the 4 factors of fair use in the context of two art projects that used social media photos: Yolocaust by Shahak Shapira and New Portraits by Richard Prince. It was also intended to get viewers thinking about the ways their social media content might get used beyond the original intention.
Physical World Assumptions and Software World Realities (And Why There Are More P2P Software Providers Than Ever Before)Rights holders have been successful in every major copyright action brought against peer-to-peer (P2P) software providers. By 2005, those behind Napster, Aimster, Grokster, Morpheus and Kazaa have each been held liable for their users' infringements and effectively exited the market. But those successes did not result in any reduction in the availability of P2P file sharing software. In fact, the opposite occurred: soon after the U.S. Supreme Court ruled in favor of rights holders in Grokster, there was exponential growth in the number of P2P file sharing applications available. This Article argues that this came about because the pre-P2P and current U.S. secondary liability laws were and are based on a number of physical world assumptions that are simply not tenable in the software context. After identifying those assumptions, and contrasting them with the relevant software world realities, the Article demonstrates that the explosion in the number and availability of P2P apps can be traced directly to the Supreme Court's failure to recognize the mismatch between the two paradigms.
On-line Tutorial Project: Intellectual Property in E-CommerceCopyrights, Trademarks and Patents make up most of the area of law known as Intellectual Property. Intellectual Property's importance in Electronic Commerce is difficult to overstate. The Internet has been defined as a global network of networks through which computers communicate by sending information in packets, and each network consists of computers connected by cables or wireless links. It is the Intellectual Property laws of Copyright, Trademark and Patents that are attempting to harmonize the effects that E-Commerce and the Internet have had on the individual's ability to access and use this information. It should be remembered that most countries have their own systems for patents, copyrights and trademarks, but thanks to international coordination and agreement facilitated by the World Intellectual Property Organization (WIPO) these legal regimes are basically similar in structure and approach. This course will focus on the intellectual property laws of the United States, currently the single largest ecommerce marketplace, with supplemental references to other legal regimes where useful.
ACTA and the Specter of Graduated ResponseThis short paper, prepared for a workshop on the Anti-Counterfeiting Trade Agreement (ACTA) and the Public Interest at American University’s Washington College of Law, considers the draft Internet provisions of ACTA in the context of concerns raised in the media that the treaty will require signatories to mandate graduated response regimes (à la France’s controversial HADOPI system) for online copyright enforcement. Although the Consolidated Text of ACTA, released in late April, confirms that mandatory graduated response is off the table for the treaty’s negotiators, the treaty in its current form both accommodates and promotes the adoption of graduated response. Moreover, opponents of graduated response should be wary of the fact that public law mechanisms—be they domestic or international—are not the only means by which graduated response can effectively become the law for Internet users. The United States and Ireland provide examples of the trend toward private ordering in the project of online copyright enforcement.