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EBSCOhost: A breed apart? A comparison of secondary and university teachers' perspecti...

EBSCOhost: Lights, Camera, Action!

Copyright (c) 2008 Regents of the University of California UC Davis Law Review December, 2008 42 U.C. Davis L. Rev. 343

he dominant project of cyberlaw is to parse the implications of the Internet's structural rules or "code." n302 Legal scholars seeking to explain the Internet's dynamism as a unified platform have emphasized a particular structural factor: the so-called "end-to-end" model. n303 An end-to-end network is one that pushes control out to the endpoints. n304 The network focuses on moving bits from one place to another, without considering what those bits contain. Any edge device, such as a computer or mobile phone, can add a new application, and those edge devices are solely responsible for factors such as reliability and security that ensure the success of that application. Because innovations do not require the consent or updating of the network core, those innovations can be deployed more quickly.n305 As edge devices become more powerful, which they do as computing power improves over time, their enhancements can immediately be joined to the network. So, new services such as Google, Skype, Hotmail, Facebook, and Amazon.com can catch on and grow rapidly, generating significantly more social and economic benefits than in a network like the PSTN, where central control nodes must approve new features. n306

The end-to-end model emphasizes only one side of the equation - the edges. The Internet gives extraordinary power to its endpoints, but it also embodies linkages between those endpoints, and between [*400] aggregations of systems that connect into a composite network. The fact that the edges of the network define the applications say nothing about how those edges are wired together. An endpoint can offer a brilliant innovation, but such innovation will be of no value if other endpoints cannot access it, or cannot access it easily. n307 Something more than the end-to-end principle must explain how the Internet holds together.

The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age by William McGeveran, William Fisher

McGeveran, William and Fisher, William W., "The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age" (August 2006). Berkman Center

Research Publication No. 2006-09 Available at SSRN: http://ssrn.com/abstract=923465

Description:

This is a report on a yearlong study produced by The Berkman Center for Internet and Society at Harvard University. It looks at the obstacles that Fair Use law and copyright owners create in the process of attempting to further develop the full potential of the educational uses of technology. The report identifies four main problematic areas:

a. The lack of clarity within the copyright law.

b. The large adoption of digital rights that keeps users from accessing content.

c. The increasing amount of licensing that creates mounting paperwork for users to overcome.

d. The extreme practices by gatekeepers.

Analysis:

This report speaks of the problematic nature of copyright laws and current practices of Fair Use. It informs the readers about the great wall that is being created between students and the materials that should be available for their education and about the perils that such a state of affairs brings to the future of education. At the same time, the report effectively documents and clearly identifies the top four obstacles. Thus, it gives readers a reachable solution and concludes with a series of sound recommendations that if applied, will bring much clarity and fairness to the tense relationships between copyright owners with professors, scholars and artists who claim Fair Use.

Will Fair Use Survive

"Will Fair Use Survive?" (New York: Brennan Center for Justice, 2005).

www.fepproject.org/policyreports/fairuseflyer.html

Description:

This study conducted by the Brennan Center for Justice at New York University School of law researched the causes and consequences of the increasingly heavy hand that is being exercised by copyright and trademark owners on limiting Fair Use. The study highlights the importance of preserving Fair Use for the benefit of democracy, the public in general and to ensure that "the owners of intellectual property cannot close down the free exchange of ideas." It states that copyrighting is a confusing arena for users and one in which the powerful can overstep limitations of Fair Use. It can also be a permissive arena in which intellectual property owners can exercise undue authority. The study concludes with a series of normative and legal recommendations to improve the standing for the users and encourage copyright owner to exercise restraint.

Analysis:

The study's central team is helping the reader to understand the increasing pressures facing Fair Use consumers and the urgent need to take action to prevent copyright owners from eroding the establish laws of Fair Use. It bases it claims on research that points out the weakening of Fair Use law as well as the fact that intellectual property owners have effectively developed an atmosphere of fear around it. By doing so, they have deterred and ultimately limited the free exchange ideas. The study documents several examples of big corporations taking action against individuals whom they claim had violated their intellectual property rights. These examples underscore the unequal legal status that individual users face when attempting to claim Fair Use. Finally, the study questions the survival of Fair Use under the current practices.

The Access/Impact Problem and the Green and Gold Roads to Open Access: An Update

This article aims to argue for the benefits of all scholarly journals being Open Access. Authors argue that non-open access journals are significantly detrimental to an authors' research impact. Their argument is that even if all journals charged an at-cost price for their content no (or very few) libraries would be able to afford all journals in this situation. The article gives excellent statistical information, including charts and grafts depicting the impact that Open Access has on citations, downloads, budgets, and institutional archive growth.

This article explores the benefits of open access publication to scholars and researchers in so much as Open Access will greatly increase their research impact because a ten-fold number of other researchers will be able to review their work. By referring to some of the statistics and information the authors of this article have compiled, I will further list the importance of why pushing publishers toward Open Access or "less astringent copyright practices" is of extreme importance in today's library fields. Undoubtedly, pushing information on why pushing publishers toward O.A. would help library's with their budgets, but also would increase library usage. However, I think it is also important to argue librarians have a duty to further scholarship, showing that O.A. helps facilitate research and increase citations and articles downloads will be an extremely efficient way of doing this.

Existential Dilemma: Librarians as Gatekeepers

Traditionally, librarians have been viewed as gatekeepers (among other things). However, Librarians (for the most part) view themselves as catalysts helping patrons getting the material they want as quickly and as "painlessly" as possible. For most patrons the ideal librarian is one who can find whatever information they need quickly, easily, possibly be able to teach them how to do it themselves, and -- most importantly -- do all of this for free. Most librarians, I assert, want to be the patron's ideal librarian. So, why then are librarians gatekeepers -- shouldn't librarians be ignoring copyright all-together in order to be the ideal librarian? The answer is that most librarians don't feel as if copyright law is some moral code they must abide by; rather, most librarians are afraid their library is going to get sued. Is having one's library being sued a legitimate fear for librarians? I argue that it is not a legitimate fear. In addition, library's and librarians have come to a breaking point in regards to copyright. Library's can barely afford the high prices for copyrighted material and most librarians believe there needs to be a universal embrace of open access in order for libraries to continue providing the services they have historically provided. Librarians need to be rebellious against copyright in order to push publishers away from price-gouging and the strangle-hold they have over their content. If librarians adopt an end-to-end policy, learn to circumvent copyright law as legally as possible, and know how likely it is that their library will be sued, then librarians will finally be taking a truly proactive and rebellious stance against copyright.

Georgia State Lawsuit Release and "Legal Complaint"

The above article is a PR address from the Association of American Publishers regarding the infringement lawsuit brought up on Georgia State University by Oxford University Press, Cambridge University Press and SAGE Publications. The document gives the reasons why these three publishers felt it necessary to bring up charges against GSU and why it is important that the copyright they hold over their published works is important (mainly because of the significant funds they spend publishing their works).

http://publishers.org/main/PressCenter/documents/GSUlawsuitcomplaint.pdf

The above link directs you to the legal complaint in its original form. Using the above legal cliam and the press release to help decipher and guide me through this legal document will help me to better understand why the publishers feel they have been wronged by Georgia State University. The infringements listed by Georgia State University have most assuredly been facilitated by the library/libraries of GSU or at least exacerbated by the library/libraries.

I will use the above article as a way of understanding what was it exactly that publishers feel are significant reasons to bring up suit against an entity. By examining the stated reasons for the lawsuit, I could further research as to what could be done to eliminate the possibility of being sued for supplying copyrighted works to students, faculty, and staff by the university library. The above articles will help me to define in my essay what is sufficient cause for a publisher to take up suit against a university / library.

Copyright Policies and the Deciphering of Fair Use in the Creation of Reserves at University Libraries.

The above article revolves mostly around the the use of electronic reserves at university libraries and what copyright restrictions apply to the use of E-Res. Also, it discusses various court cases involving copyright and attempts to form a listing of percentages of work that could be used without infringement. By doing this the authors attempt to form a more 'objective' and concrete idea of what constitutes copyright infringement. In addition, the authors argue against using the Copyright Act of 1976 as a guideline for libraries, stating that it does not accurately depict fair use.

This article will be extremely useful to me because it attempts to objective numbers as to where copyright infringement begins and fair use ends. Also, it explains the awareness of copyright law by various individuals who work in and around a library. By using some of the information compiled from this article I intend to show how unlikely it is to expect a librarian to do the calculations and to have a cogent knowledge of what is fair-use and what constitutes infringement. Also, by concurring with this article's authors on the unreliability of the copyright act of 1976 to accurately define fair use for libraries will help to build the credibility of my argument.

A LAY PERSPECTIVE ON THE COPYRIGHT WARS: A REPORT FROM THE TRENCHES OF THE SECTION 108 STUDY GROUP HORACE S. MANGES LECTURE: APRIL 1, 2008

Note: Lexis Nexis doesn't give persistent links (or else I am unable to find where they do) in order to retrieve this article simply search for "a lay perspective on the copyright wars" with only the legal box checkmarked and it will be the first result.

In this Lecture, Columbia University's University Librarian, James G. Neal, addresses the current environment of libraries in regards to copyright and open access. Neal's lecture mostly addresses the findings of the 108 Study Group which was formed to research copyright. Neal explains the current state of copyright, the findings of the 108 Study Group, and the framework necessary in order to facilitate a more open environment for publications and libraries. Neal's lecture defines the library as an all encompassing entity which disseminates information, a center for research, a publisher in its own right. Because of the library's role as a center for just about everything scholarly, the library has a vision of embracing legacy as well as current trends. The library is an information repository and a portal to information. Serving so many roles simultaneously makes the library at the forefront of the copyright war.

In my essay it will be important to state why it is the duty of the librarian to rebel against copyright in order to push for more open access. Neal helps define the library as the center of the copyright war, the very front of the action. By citing Neal and his 108 Study Group's findings, I will be able to convey the importance of the librarian to stand up against copyright in order to defend the very embodiment and idea of the library itself. Neal's article also gives information on the opninion of librarians and library organizations on the issue of copyright and open access. Using some of this information will help me to define how to faciliate a better enviornment for the sharing of intellectual materials.

"The Law of Fair Use and the Illusion of Fair-Use Guidelines."

Crews, Kenneth D. "The Law of Fair Use and the Illusion of Fair-Use Guidelines." Ohio State Law Journal 62 (2001): 599-702.
http://moritzlaw.osu.edu/lawjournal/issues/volume62/number2/crews.pdf

Description:In this article, Dr. Crews looks at the historical development and use of guidelines in Fair Use. The author uses government documents and court rulings to demonstrate that the guidelines are basically irrelevant to the Fair Use and Copyright laws. Furthermore, the article sets out to demonstrate that in practice such guidelines are an obstacle in the development of truth and understanding of the Fair Use laws.

Analysis:The article criticizes the development of guidelines, because as Dr. Crews demonstrates well, they have not been of help to Fair Use users and have not clarified or aided anyone who has faced the Fair Use law. The author's argument goes further stating that guidelines or the illusion of the guidelines indeed have mislead the consumers (the public) into believing that they possess an agency value and that they would be universally recognized in a court of law. Dr. Crews documents how such has not been the practice in reality and that in fact certain users would have been better served if guidelines were not employed at all and they just focused strictly on the preexisting laws.

Freedom To Teach: an Educational Fair Use Project.

Freedom To Teach: an Educational Fair Use Project. http://cyber.law.harvard.edu/research/freedomtoteach#

Description:

Freedom to teach is a project conducted by The Berkman Center at Harvard University under the direction of Dr Lewis Hyde Berkman, Fellow. The project's initial goal is to develop a statement of best practices for Fair Use in higher education. The ultimate goal is to offer "clarity and agency to an area where confusion and caution are now the rule." The project's description and proposal include a step-by-step description of the actions that the project will be taking in order to create a statement of best practices that will be true and useful to those teaching in higher education. The center will also include discussions and descriptions of items such as the history of Fair Use, the current problems with Fair Use and the issues identified as problematic with Fair Use guidelines. Dr. Hyde and his group also detail the need for change and clarification. Finally, the proposal explains the Best Practices Model and compares it with the research in current practice.

Analysis:

To understand the social value of the project being conducted at the Beckman Center, we could go back to Dr. Hyde's description of Fair Use as "a key part of the social bargain at the heart of copyright law. The rights that this doctrine gives to the scholars, teachers, and creative artists in higher education only come to life, however, when they are understood, claimed, and used." Therefore, Dr. Hyde and his group feel certain that the doctrine will bring clarity and understanding to Fair Use while and allowing the current Fair Use law to be once more what it was intended to be: a source of protection for professors, scholars and teachers while permitting them to use copyrighted material in a way that would allow owners to exercise control of their intellectual property in all other areas of society.

News from the Future of Public Media -- Center for Social Media at American University

News from the Future of Public Media Posted by Patricia Aufderheide on May 7, 2009 at 4:12 PM.http://www.centerforsocialmedia.org/blogs/future_of_public_media/dmca_fair_use_and_educators/

Summary:

This news report from The American University Center for Social Media reports on the recent efforts of media professors and professor from other disciplines to obtain renewals and extensions on exceptions in copyright law. After battling industry lawyers three years ago, the reports say professors such as Dr. Peter Decherney are again in the courtroom to once again attempt to make cases on behalf of educators and their students.

Analysis:

Coming for the Center for Social Media the report is very sympathetic to the professors who are trying to convince the industry and the lawmakers that when it comes to education, the rules for copyright use should be different, because (among other things) it is in the best interest of society, and because profits are not derived as a result of materials used in the classroom.

The Growth of Intellectual Property:

The Growth of Intellectual Property:A History of the Ownership of Ideas in the United StatesWilliam W. Fisher III. forthcoming in Eigentumskulturen im Vergleich (Vandenhoeck & Ruprecht, 1999) http://cyber.law.harvard.edu/property99/history.html

Description:

This publication is best described as an historical and outlined recompilation of who or what created legislation such as copyright law and intellectual property. It includes the rights to protect an author's "original" work as well as the protection of celebrities who wish to profit from their own image.

Analysis:

William W. Fisher's publication on the historical growth of intellectual property in the United States summarizes the history of copyright law while at the same time takes the reader on a journey that both explains and criticizes the forces that had taken copyright law to the place that it occupies today. Fisher identifies three main forces that impact the growth of intellectual property: economics, ideology and politics. He consistently emphasizes that for the most part and throughout the entire process, the consumer (the public) has been left out of the discussion. Thus, the growth of copyright law has been primarily developed and described by those having a personal interest in it and wish to profit from it. Dr. Fisher calls into questions ideas such as "original writing" pointing out that writers always support and draw their work from previous work. This is a very well documented and well written article that at the same time points out the problems with intellectual property and on some level encourages readers to develop their own agency in order to prevent the erosion of consumer protections such as Fair Use.

U.S. Code TITLE 17--COPYRIGHTS

U.S. Code Title 17 is the definitive legal resource for the U.S. Laws regardining copyright. This resource has relevant information on what constitutes copyright infringement and what actions are needed to remedy said infringements.

I will use the above resource as a primary source. This source will help me to define exactly what copyright infringement is according to the law. The above material will help me to define what actions a librarian could take when addressing sensitive copyrighted materials. By knowing the extent of the law I could then determine what are suitable actions to take when coming in contact with something which is questionable -- and in turn what is definitively illegal -- in order to argue for what actions a librarian could take to "push the envelope" on copyright law.

The flavors of open access

The above articles attempts to comprehensively define Open Access, listing the various iterations of Open Access as it is defined differently by whom is using it. The article then tries to unify the definition of Open Access or at least define Open Access in their own terms. From which point the authors address the goals of the Open Access movement or what is the intended outcome by spporters of Open Access. The author gives a fairly decent job at illuminating some of the struggles toward the adoption of a universal open access policy, but also lists the benefits of a universal Open Access policy. The article gives multiple viewpoints to Open Access (Advocates, Critics, Observers)...

I plan to use this article as an information resource showing what benefits there are to Open Access resources. By using this articles definition of Open Access and mentioning some of its lofty goals for Universal Open Access, I intend to show in my essay what the benefits would be for Librarians to push publishers toward open access by knowing ways "around" copyright. In other words, I will use examples from this article to show what benefits there are for librarians to legally circumvent copyrighted materials and "play dumb" when it comes to copyrighted works.

Copyright Resources for Schools and Libraries

This resource aims to address as many legal aspects of copyright infringement that the site's authors deem are most relevant to instruction and libraries. The site acts as a bibliography or index to various topics within coypright right law and links the user to a main source of information on each specific topic. In addition to linking to various topics on copyright law, it also links to legal information on copyright law and how it pertains to libraries and instruction. Under each section and sub-headings are abstracts explaining what is covered under each topic.

The following resource is an invaluable tool for addressing specific copyright concerns of libraries. After researching what each of the concerns are and making note of them, I will then be able to click through to find out more information on each specific topic. Though likely not a comprehensive source of copyright law which specifically affects libraries, it seems to be fairly wide ranging and well written.

The Pros and Cons of an 'Educational Fair Use' Project (Luncheon Audio) | Berkman Center

The Pros and Cons of an 'Educational Fair Use' Lewis Hyde, Berkman Fellow, speaks on "The Pros and Cons of an 'Educational Fair Use' Project" http://cyber.law.harvard.edu/interactive/events/luncheon/2008/02/hyde

Description

In this video The Berkman Center for Internet and society of Harvard University and Dr. Lewis Hyde are discussing the problems with the laws, guidelines and practices related to fair use in education. Dr. Hyde speaks of the historical and current confusion around fair use in education and the negative consequences that such confusion has created for professor and instructor in higher education. The impact as Dr. Hyde discusses can be found in areas such as free speech, academic freedom and the quality of instruction. At the same time, Lewis Hyde is calling for an educational fair use project to be conducted by educators who will have small groups that will use their classrooms and instructional needs as guidelines to determine what should or should not be fair use in education. Such a project will then be used to negotiate with owners in good faith and with the goal of community service in mind.

Analysis:

Dr. Lewis Hyde from the Berkman Center for Internet and Society of Harvard University is in this video advocating for changes and measures to prevent owners from eroding fair use, free speech and academic freedom. In his presentation, Dr. Hyde effectively documents the history that brought fair use to this point of conflict while at the same time attempts to clarify the laws that regulate copyrighting. Professor Hyde's presentation also very clearly describes step-by-step the guidelines that one could use in order to conduct a project for fair use in education.

Fair Use for Media Literacy Education

http://www.centerforsocialmedia.org/resources/publications/code_for_media_literacy_education/ :

Discusses fair use in media literacy education, appropriate uses for educators and students of fair use when it comes to using copyrighted materials in order to teach media literacy. It also clarifies what benchmarks are as used by lawyers and judges to decide what is fair use as well as the myths and facts about fair use in the classroom. Finally, it encourages educators to be leaders, not followers in the process of establishing the best practices of fair use in education.

Analysis:

The article is aimed at educators with the purpose to educate teachers about the guidelines of fair use in the classroom. The principal goal of the article is to encourage educators to use technology in the classroom and to contribute to the current dialog and process of establishing best practices in fair use in education and in particular media literacy. The underlying goal of the article is to call on educators (uses) to participate in the conversation about fair use in order to create an environment where all educators feel more comfortable using the media and therefore, have students and the public in general take advantage of the benefits of media literacy.

Stanford University School of Education passes open access policy in wake of Harvard's action

Cambridge U.P., Oxford U.P. and SAGE Publications v Georgia State University

Make a Copyright U-Turn and 5 Other Audacious Statements about Copyright and Educational Fair Use

Copyright Protection and Appropriation Art

Landes, William M. "Copyright Protection and Appropriation Art." The Arts and Humanities in Public Life. Http://culturalpolicy.uchicago.edu/conf1999/landes.html.

The author begins by bringing up many issues that surround appropriation art. These problems include when art is based on renowned copyrights images, when images are borrowed without appropriate art intent, and when images are used for educational purposes. Instead of lamenting that the grey area of copyright can never be solved, this author takes a different approach. Landes proposes a solution to all these problems. Not necessarily a solution, but a belief that current copyright law can decide these matters.

The article delves into the economics of copyright. Landes discusses how without copyright protection artists would never be able to recoup losses to create art and therefore would be working without incentive. This would lead to a culture devoid of meaningful expression. He argues that there needs to be an appropriate balance between too little and too much protection. This balance would ensure that efficiency and creativity are promoted.

This piece brings up many questions about how appropriation art exists among law, society, and culture. It makes us question the benefits and downfalls of copyright protection. Like many copyright articles, it discusses the Koons v Rogers case. From its analysis, we gather that not all appropriation art should be protected under fair use. Additionally, we see that if it was, courts would be put in the unsuitable position of judging what art is and what is not.

Beyond Rogers v. Koons: A Fair Use Standard for Appropriation

Ames, E. Kenly. "Beyond Rogers v. Koons: A Fair Use Standard for Appropriation." Columbia Law Review 6th ser. 93 (1993): 1473-526.

The article begins by detailing the origins of Rogers v. Koons: Koons making a sculpture inspired by Roger's photograph Puppies. Koons lost the trial after courts failed to see reason to his fair use by parody defense. After describing the loss of Koons in court, the author posits several questions that are essential to my paper. Ames asks, "Is the use to which Koons puts Roger's photographs mere piracy of someone else's images? Or is it art in some more meaningful sense? If it is more than piracy, does it deserve the protection of copyright law, and, if so, then how should that protection be afforded to balance appropriately the interests of the original creator, the viewing public, and the appropriator?" This article attempts to answer these questions by giving an overview of how contemporary art came to appropriation as a technique and by explaining how copyright law exists within the current art world. Additionally, the author discusses several issues created out of the ongoing dialogue between copyright and artists. To begin with, it seems as if too often artists edit their art around copyright and the potential of being sued. The author argues that that appropriation should be protected under fair use. However, Ames sees the current fair use doctrine as inadequate in protecting appropriation artists. Lawmakers and artists are put into a grey area too often. Ames discusses new guidelines and rules that need to be developed to protect appropriation, while hushing copyright holders who are all too eager to sue. The author concludes by developing a standardized method for protecting appropriation artists. This method, an adaptation of the four factor analysis, is based on protecting the copyright holder's future markets instead of safeguarding infringement rights in work. The latter is founded on the idea that an appropriator's work will not substantially affect the value of the copyright holder's work.

Rogers v. Koons was a landmark decision. This article shows how the court case brought up a myriad of questions for our 21st Century society. When writing my research paper, it will be important to be able to explain not just what these questions are, but what many contemporary thinkers have responded with. Ames proposes a creative solution to the many different problems created when law does not sufficiently protect appropriation artists. Perhaps most important to my paper, Beyond Rogers v. Koons: A Fair Use Standard for Appropriation presents the debate by showing what great value society can get from appropriating.

Brown University: Copyright and Fair Use (Audio-visual)

Rules and Permissions for Audio-visual Media Copyright law and audio-visual materials

Google & Books: An Exchange

Google & Books: An Exchange
By Paul N. Courant, Ann Kjellberg, J. D. McClatchy, Edward Mendelson, Margo Viscusi, Tappan Wilder et al.

In response to Google & the Future of Books (February 12, 2009)

To the Editors:

My colleague and friend Robert Darnton is a marvelous historian and an elegant writer. His utopian vision of a digital infrastructure for a new Republic of Letters [NYR, February 12] makes the spirit soar. But his idea that congressional committees beholden to Hollywood might have implemented that vision is a utopian fantasy, while his description of what will happen as a result of Google's scanning of copyrighted works is a dystopian fantasy.

Google & the Future of Books

Law Journal Library - HeinOnline.org

Crews, Kenneth D. "The Law of Fair Use and the Illusion of Fair-Use Guidelines." Ohio State Law Journal 62, 2 (2001): 599-702.

Cultural Participation and Growth through Fansubbing

As new digital technologies proliferate, tension between consumers and corporations has increased due to the new challenges confronting entertainment industries. Historically, the anime industry has leveraged the activities of fans through strategic ignorance in order to grow the foreign market in the United States. I am interested particularly in exploring how these fan communities functioned as proselytization commons to develop this market -- that is, how their illegal activities actually created growth and benefits for the industry. These fan activities, however, have also created pressures and potential harms for the industry by demanding a departure from a traditional physical-media business model. Furthermore, since anime fandom is an especially participatory community, rights-holders will increasingly be faced by more unauthorized reproductions of their works and expectations from fans of the ability to engage with this content. I have chosen my sources in order to reflect the multi-faceted perspectives currently competing in the debate over how to balance the interests of creators and fans. In my paper I will examine anime fandom and its relationship with the anime industry as a paradigmatic case of a "hybrid economy," where balance is achieved through cooperation between both groups in order to maximize the benefits of fan engagement while minimizing the harms.

When Is Parody Fair Use?

This article actually argues against parody being included under the fair use clause, saying that the treatment should be very narrow and should not include my definition of satire (or works that parody others to attack a third). Posner claims that use should only be fair when the costs of transacting with the copyright owner over permission to use the copyrighted work would exceed the benefits of transacting. Posner argues three specific points:

1. Fair use should only provide a defense to infrigement if the work is a parody, not a satire.

2. The parodist should not be allowed to take so large a fraction of the copyrighted features as to make the parody a substitute for the original work.

3. The fact that a parodist appropriates a small amount should not be relevant to fair use.

Interestingly, Posner writes: "If all but one form of intellectual property is priced, dumping the remaining form into the public domain, where it can be used without being paid for, may cause the priced forms to be even more underutilized from a social standpoint. Underutilized and also underproduced, as potential buyers of this intellectual property switch to its free competitor."

However, if parody can be protected by fair use and satire cannot, Posner's argument suggests that everyone will switch to parody rather than risk or pay for satire.

Samples, Remixes, and Mash-ups: Their Relationship with Copyright Law

Thesis: Samples, remixes, and mash-ups have all been affected by the interpretation and application of copyright law....... I am doing a creative project where I will produce four songs--a mash-up, a remix, and two beats that contain samples. I am choosing to do two samples because they are of different natures. One beat has samples of substantial similarity, whereas the second has a sample that has modified enough to make the original work unrecognizable. I will then discuss the relationship and implication that copyright law holds with samples, remixes, and mash-ups while using the songs I created as bases for comparison and analysis. The legal copyright implications will be addressed and critiqued.

Into The Grey: The Unclear Laws of Digital Sampling

    “Into the Grey” provides an excellent overview, history, and analysis of The Grey Album. This album stands as arguably the most famous and most controversial instance of mash-ups. This text covers what The Grey Album was, how it was produced, the response of record and publishing companies, and the subsequent response by disobedient mash-up and fair use advocates. Further, legal implications and defense possibilities of sampling are discussed, but in the specific context of mash-ups.
    The Grey Album, produced by Brain Burton a.k.a. DJ Danger Mouse, is a mash-up album that uses the full vocal content of Jay-Z’s Black Album mixed with instrumentals that can all be traced to the Beatles’ White Album. Every drum hit and instrumental chord was sampled from the Beatles’ album and used as beats for Jay-Z’s vocals to seamlessly rap over. Burton’s mash-up album caught like wildfire, popping up in record stores and on countless websites. The issue, however, was that Burton never received permission from any copyright owners of the Beatles or Jay-Z.
    As a result, the Beatles’ record and publishing companies sent Burton a cease and desist letter, explaining how he was infringing their copyrights. He complied and was never brought to court. After only a brief look at the exclusive rights of copyright owners, it is beyond doubt that had the case been brought to court, The Grey Album fully infringed on their rights. Discontent fans didn’t take kindly to this realization though—they organized a day of “civil disobedience” called “Grey Tuesday,” in which hundreds of websites hosted The Grey Album for download.
    The author suggests using de minimis laws as a defense, but as we know, this might no longer stand up. Instead, the only viable defense is fair use. This would unlikely be successful because although The Grey Album is highly transformative, it is a commercial product and not intended to criticize or parody. The core artistic work is also appropriated. And since copyright owners enjoy the rights to control adaptations through licenses—where they can make money by choosing to license—The Grey Album might negatively affect the ability to license further samples, and therefore is of potential harm.
    This comment is an excellent resource for my project. It first provides a thorough overview of The Grey Album and following episodes. This albums stands as an example of what would potentially happen to me if I chose to release my mash-ups. More important, however, is the discussion of fair use defense for mash-ups and the opinion that it would never hold up in court. This addresses a potential defense for my mash-ups and why it might not work.

DIGITAL SAMPLING AND THE LEGAL IMPLICATIONS OF ITS USE AFTER BRIDGEPORT

    “Digital Sampling and the Legal Implications” focuses on digital sampling, its impact on music, the effects that will occur for artists and the music business if the Bridgeport case isn’t reexamined, and finally, possible solutions and alternatives for dealing with the sampling dilemma. The paper has a strict perspective that sampling holds a positive impact on music, and that the Bridgeport decision has the capability to extremely hinder creative output. What I was particularly drawn to were the suggested solutions to seemingly never-ending debates over sampling and its copyright implications.
    The three main options mentioned and explored are the creation of a subgenre in fair use to cover digital sampling, a compulsory licensing system, and lastly, a combination of the two. For the subgenre in fair use, the key component would be to determine the purpose, character, and use of the sample, and its effect on the original work’s market. If the underlying work was altered enough or so minimal that it was unrecognizable, the sampled artist or copyright holder shouldn’t and wouldn’t be injured. A compulsory licensing system would make copyright owners compelled to allow samples of their songs. In return, they would receive payment from all of the uses of the new work at a predetermined rate.
    A combination of the two would look something like this: A fee would be paid to obtain “temporary” rights to use the sample. The new work would then be analyzed under the proposed new sampling subgenre of fair use. This would determine whether the sample was substantial enough to be recognized or have an effect on the original copyrighted recording. If it didn’t fall under fair use, then a new fee would be assessed in terms of length, prominence, and importance of the sample. An official authority would be put in position to help mediate this last negotiating step.
    This is a really creative and intelligent way of looking at possible solutions to the legal issues regarding sampling, infringement, and payment. I think the combination of compulsory license and fair use could have a dramatically positive effect on artistic creativity and output, as well as on the chronic litigation that plagues music companies. This is relevant to my project because if this type of system were instated, it would drastically change the copyright implications of my songs and how they were greeted and treated. I could potentially release these songs at a much lower time and financial cost; but more important, I would be releasing them legally.

Stanford Copyright

Fair use is a term that originated in the United States. It allows limited use of material that is copyrighted. With fair use, permission is not required depending with appropriate circumstances. Fair use is defined and regulated with a four-factor test. Using this test, one can tell if it violates copyright. A work must satisfy all four factors to pass the test. Fair use is a tricky subject because it really does vary in every case.

The first factor says that a work is fair use depending on “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”

The second factor concerns, “ The nature of the copyrighted work.”

“The amount and substantiality of the potion used in relation,” is the third critical factor

The final factor says that a work is fair use depending on “ The effect of the use upon the potential market for or value of the copyrighted work.”

IT would be ridiculous if you had to ask for permission everytime you were going to use a copyrighted work. This is the purpose of fair use. Fair use was created in tune with the goal of copyright: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

This information lays the foundation for my paper. It provides the background information for me. My claim is that the DMCA violates fair use and copyright. By outlining the purpose of copyright and the factors of fair use, I can then tell how DMCA violates.

Will Fair Use Survive?

This is a public policy report that offers important research for my paper. It discusses how “free” expression really is in this new age with strict copyright control like the DMCA. The Brennan Center for Justice conducted a research project in 2004. The objective of the project was to see how the people, artists and scholars, directly affected by fair use were dealing with it. These are the people who make significant contributions to culture and will definitely be affected by an amendment like the DMCA. The Brennan Center used interviews, online surveys, focus group discourse, and most importantly, an analysis of about 153 of 300 take down letters. The most interesting to me and the method that I plan to discuss in my paper is the analysis of the take down notices. The 153 notices were aimed at materials that were actually fair use or had a weak IP claims.

The research showed a strong positive correlation between the strength of fair use claim and the likelihood that the material would be removed. There was also a troubling finding that even when there were weak IP claims, more than half of trademarked words or phrases were removed. Even though it was fair use, the weak IP claims won. Overall, the take down notices really are distinctly violating the first amendment.

The other methods, interviews, online surveys, and focus group discussion found two common, major themes. The research project found that there is a great deal of confusion about fair use and the DMCA. Also, there is an enormous need for a legal support base to deal with gatekeepers. The paper suggests possible improvements: a clearinghouse for information like how to reply to take down notices, legal support base, and decreases to the penalties.

I plan to use this paper’s research to support my claims

1. People have inadequate knowledge about DMCA, fair use, and their first amendment rights

2. Gatekeepers are abusing take down notice rights

3. How effective are the take down notices at eliminating copyright infringement?

4. Who are the innocent bystanders being caught up by the take down notices?

Copyright and the Public Interest

The purpose of copyright law is to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Such a goal presumably serves the public interest because copyright protection encourages creativity and learning and thus benefits the progression of society. The First Amendment intends to protect freedom of expression and freedom of speech, including political speech. These rights also serve the public interest, as political speech allows the public to make educated and informed decisions when partaking in the democratic process held so sacred in the United States Constitution. There must be a delicate balance between copyright law and First Amendment rights, as copyright somewhat limits these rights. For example, political campaigns employ copyrighted material in ads, speeches, and videos for the purpose of (free) political speech. It can be argued that to treat such acts of political campaigns as copyright infringement limits the First Amendment right to freedom of speech. If such action of political campaigns is copyright infringement and thus eliminated or censored, it can be said that copyright severely hurts the public interest. When examining the role of copyright, it must then be addressed, does copyright help or harm the public interest?

SSRN-'Lost in Translation': Anime, Moral Rights, and Market Failure by Joshua Daniels

Joshua Daniels describes the negligence of licensing companies to account for fan sentiments towards preservation of original works as a market failure that can be remedied through an expanded Fair Use statute. He argues that society has an economic interest in maintaining the integrity of works, and therefore the harm caused by licensing companies that heavily edit or censor these properties can be understood as a negative market externality. In order to correct this market failure, Daniels proposes that the law must channel incentives such that licensing companies are forced to take into account fan interests in preserving these works. However, he also cautions that there is a substantial risk of destroying the market entirely if too broad of an approach is taken to remedy the failure. Therefore, he proposes legalizing fansubs to an extent under a right of public access to foreign works in their original form when there is no other practicable legal means of obtaining that access. In this way the competing interests of rights-holders and fans are balanced in favor of public access.

Daniels recognizes a demand for authenticity as a particular characteristic of anime fandom that promotes a cultural goal. Insofar as some fansubs promote this end, we may consider legalizing their practices in order to incentivize companies to distribute an original version of the works they license. Indeed, many fansubbing groups, such as Live-Evil, work specifically with older anime that were heavily modified when broadcast in the U.S. market. Daniels's proposed model, however, would likely create undue burdens for companies that are attempting to localize otherwise unintelligible cultural shows. While promoting public access to works is a valuable goal, Daniels seems to prioritize cultural over economic production when instead both concerns should be balanced.

Nov 4: Keller and Tushnet, "Even More Parodic than the Real Thing?"

In this article, Tushnet and Keller define parody and satire, and how such strict definitions can lead to problems. Like Long, they argue that such a clear definition can allow the court to almost choose which genre the works fall under, and therefore indirectly suppress what works are allowable. They go through a history of cases, including copyright and trademark, but I will concentrate on copyright as specifically relating to my project.

Therefore, Tushnet and Keller argue that the current mutually exclusive definitions of parody and satire should be forgotten. Instead, it is the critical insights that should be examined, without judging the merits of those insights the way parody or satire might. Otherwise, parody is favored unfairly over satire, suppressing one form of expression and promoting the other, which is not the purpose of the copyright laws.

Unfair Use: The Lack of Fair Use Protection by Adriana Collado

In this article, Adriana Collado summarizes the distinction between parody and satire and the interpretation of this difference in fair use cases over time. Collado goes on to discuss the present state of the law, what the law should be, and possible solutions and compromises for satire, which is not currently mostly included under fair use provisions.

However, Collado also argues that by Supreme Court's own definition of fair use works ("for purposes such as criticism [and] comment"), satire should already been included. Satire has been defined as a commentary or critical work, one of the uses specifically enumerated in the Fair Use Doctrine, so it should technically be protected.

Since satire is currently not included under fair use, Collado discusses potential solutions and compromises, although none are very promising. Collado quotes Tom W. Bell, who suggests that copyright owners and secondary users should be able to opt out of copyright law and contract under a fared use system, although he fails to mention what would happen for satirists if copyright owners refuse to license (which would probably happen due to the self-esteem issue). Collado adds another possibility of courts requiring unauthorized satirists to pay copyright holders for actual damages sustained from the use of the copyrighted work, but understands that such a method might still dissuade satirists who cannot predict such a number in advance.

What is Fair Use? a blog by Peter Friedman

This blog on fair use, written by law professor Peter Friedman, covers many elements of fair use, including satire and parody. This page deals specifically with blog entries covering satire and fair use, including an excerpt from Andrew S. Long's "Mashed Up Videos and Broken Down Copyright," written for the Oklahoma Law Review. Friedman discusses how parody has more extensive coverage than satire under fair use, including the recent example of Little Brown's Good Night, Moon. Similarly to Dr. Juice's satire on The Cat and the Hat and the O.J. Simpson murder trial, this book will probably not be defensable under fair use due to its satiric rather than parodic nature.

Long's article includes a section on the effect os the parody-satire distinction, which discusses the confusion similar to Bridy's article about hybrids of satire and parody. Long even suggests that "this seemingly arbitrary distinction allows judges to find parody when it suits the results the wish to achieve." Hardly a promotion of progess that the Copyright Act is supposed to protect. Long also argues that the distinction between satire and parody ignores that satire must also transform the original work, which adds new, transformative meaning.

Miss Scarlett's License Done Gone!: Parody, Satire, and Economic Reasoning by Michael Einhorn

Michael Einhorn, Ph.D., suggests that licensing arbitration is preferable to the existing "all or nothing" method of fair use that currently exists for works that add new interpretation to existing works (ie parody and satire). If we vacate such rules, Einhorn argues, owners of intellectual property would be guaranteed compensation, producer incentives are great without the worries of punitive uncertainites, and collecting societies and licensing agents may emerge when tradable rights are defined. These would perhaps more effectively promote the progress of arts and sciences that the copyright laws are designed to do.

This argument follows Judge Kozinski's argument about changing the rules for satire, and not trying to apply fair use to the genre. Otherwise, the two options are too extreme: one party ends up getting the worst end of the deal, and the other party walks away almost unscathed.

What's So Fair About Fair Use? a lecture by Judge Kozinski

Judge Kozinski delivered a lecture for the 1999 Donald C. Brace Memorial at Fordham University School of Law on November 11, 1999. His speech was published in the Journal of the Copyright Society of the USA in the summer of 1999.

In this speech, Kozinski addresses one of the controversial decisions of his court, the Ninth Circuit, about the case Dr. Seuss Enterprises v. Penguin Books. Penguin published a book about the O.J. Simpson trial, which was illustrated and wirtten to resemble a Dr. Seuss picture book. The Court ruled that Penguin's book was not fair use because it was satire rather than parody, meaning that it did not comment on Dr. Seuss's book but only used it as a springboard to comment on the O.J. Simpson trial.

Judge Kozinski, however, indicates that had he delivered the decision, it might have been different; although he does not want to criticize his colleagues, he doubts he "would have decided the case the same way." He examines the tradition of fair use theory in dealing with intellectual property, questioning when its protection starts to defeat the purpose of having it.

The most relevant part of his speech to my topic is when he discusses the importance of form to satire, even if the satire does not necessarily comment on the original work. As Supreme Court pointed out, restraining the form suppresses content; furthermore, he argues with the Supreme Court's decision in Campbell v. Acuff-Rose, who claimed that satire attempts to avoid the drudgery in working up something fresh. Instead, it takes "some creativity and work to write a sustained satirical pastiche that people will enjoy enough to pay money for." The satirist cannot latch onto any work to achieve their purpose, either, because something about the original fits or doesn't fit the subject.

Lastly, Judge Kozinski points out that our fair use laws leave something to be desired: either we deny fair use and enjoin the work out of existence, or we claim fair use and the work remains and the copyright owner has to pay the attorney fees. He suggests a remedy outside of the fair use doctrine, a question of appropriate remedy rather than fair use. In the end, the effect would be to "strip copyright owners of their right to control the uses to which their work is put, while strengthening their right to demand compensation for the value they create."

Sheep in Goats' Clothing: Satire and Fair Use After Campbell v. Acuff Rose Music, Inc. by Annemarie Bridy

In this journal article, Annemarie Bridy discusses the history of satire and parody throughout a variety of cases, concentrating especially on the Campbell case. She argues that Justice Souter's decision entitles parodists more than satirists when deciding how much and what kind of borrowing is appropriate for fair use arguments. So, what happens when a parodic work "shades into satire?" Is it no longer classifiable and therefore defensible as a parody?

In order to answer this question, Bridy draws upon literary theory and the distinction of "indirect satire" and "direct satire" to argue that some satire (direct) is definitely not permissible under fair use, but others (indirect) should be. As is, the definitions of parody and satire seem to be mutually exclusive, which can draw unfair consequences for indirect parody. Instead of employing such a distinct definition between satire and parody, she argues that the distinction should be drawn between two types of satirical parody, eliminating the problems that result from a hybrid of satire and parody.

Gulliver's Trials: A Modest Proposal to Excuse and Justify Satire by Daniel Green

Daniel Green discusses the statuses of parody and satire under current Supreme Court guidance, including the uncertainity and variance among courts. He argues that satire is unequivocally the underprivileged of the two for fair use cases, although it is allowed in certain circumstances. For his article, he had three purposes: to differentiate between parody and satire, to prove that protection for satire under fair use is important for both copyright law and the First Amendment, and to recommend some methods to incorporate this view while leaving all current precedent (although his methods may be a bit extreme, due to his satire of Gulliver's "A Modest Proposal."

One of his crucial arguments occurs when he discusses the Dr. Seuss Enterprises v. Penguin books case. Green argues that the Court overly criticized the satirist because the satirist followed traditional satire, and that his point of transposing the childish style and moral content to the world of adult concerns was an important juxtaposition. It is difficult to conceive The Cat NOT in the Hat! harming Dr. Seuss Enterprises because the books appeal to entirely different markets; only because the book was satirical did it not earn protection. Satire is still a valuable social criticism, just like parody.

Green goes on to outline five more guidelines that should be used to determine fair use, including subjective intent of infringer, manifested effects on the market, injury, "value" of the satire, and relevance or necessity of appropriated work to the satire. This way, perhaps, satirists will be able to deliver their modest (or perhaps not so modest) proposals without having to become parodists.

Court Opinion: Fisher v. Dees

In this 1986 Court case, Marvin Fisher and Jack Segal brought a suit against Rick Dees for infringing their song "When Sunny Gets Blue" with a parody song entitled "When Sonny Sniffs Glue." Besides infringement, they claimed unfair competition, defamation, and product disparagement. The Court decided that Rick Dees did indeed deserve fair-use protection because it was a parody.

The important points in this case are that every instance of parody defense must be considered individually, that a humorous or satiric work deserves protection only if the copied work is at least partly the target of the work in question, and that parodists will seldom get permission from those whose works are parodied. As they state, "The parody defense to copyright infringement exists precisely to make possible a use that generally cannot be bought" since "[s]elf-esteem is seldom strong enough to permit the granting of permission even in exchange for a reasonable fee." I would argue that the same is true of satires, even if they do not specifically comment on the original work, so they also need some form of protection or compromise for when the rights are denied. This follows Judge Kozinski's logic, so that satires are not stifled simply due to the nature of their work.

Court Opinion: Campbell v. Acuff-Rose Music, Inc.

Acuff-Rose Music, Inc. filed suit against the members of the rap music group 2 Live Crew and company, claiming that 2 Live Crew's song "Pretty Woman" infringed their copyright in Roy Orbinson's rock ballad, "Oh Pretty Woman." Supreme Court ruled that 2 Live Crew did not infringe on "Oh Pretty Woman" because their song was a parody, and did in fact fall under the fair use clause.

This 1994 case is extremely important to my topic because it was one of the first to differentiate between satire and parody and how they deal with fair use. According to the Supreme Court's definition, parody is "the use of some elements of a prior author's composition to create one that, at least in part, comments on that author's work." It counts as fair use due to its critical nature. If the commentary "has no critical bearing on the substance or style of the original composition," on the other hand, it is satire, which does not have the same protection. In the Supreme Court's mind, satire should be able to stand on its own, and borrowing of another work is just to "avoid the drudgery of working up something fresh."

The most interesting aspect, however, is footnote 14, which allows that satire may in certain circumstances also fall under fair use (although these circumstances are much more narrow than for parody) if "there is little or no risk of market substitution."

Court Opinion: Roger v. Koons

In this case, Jeff Koons used Art Roger's photographs of his wife and eight puppies to create a group of 20 sculptures for a 1988 exhibition. Koons acknowledged that his source matieral was a notecard of Roger's "Puppies." Not only did he use Roger's idea, he also copied the expression: the composition, the poses, and the expressions. Koons claims that his work is fair use because he argues that "his scuplture is a satire or parody of soceity at large. He insists that 'String of Puppies' is a fair social criticism." The Court, however, ruled against him, saying that it does not comment on the original work.

For my essay, I will highlight the discussion on satire and parody. The Court agrees that both are "valued forms of criticism" and foster more creativity protected by copyright law. However, the Court also argues that the parody or satire must comment on the original work or there would be no limitation to fair use; credit must be given to the original work. The Court does not prevent Koon's expression, but says that Koon must recognize any such exploitation requires "paying the customary price." I agree with this assesment, and wonder if satire could somehow incorporate acknowledgment of its source, could it be treated more similarly to parody, ie as applicable to the fair use clause?

Sean Kirkpatrick: Like holding a bird

13. Kirkpatrick, S. (2003). Like holding a bird: What the prevalence of fansubbing can teach us about the use of strategic selective copyright enforcement. Temple Environmental Law and Technology Journal, 21, 131-153.

Sean Kirkpatrick uses the examples of fansubs and AMVs to argue that “entertainment copyrights works best if grasped loosely.” In his article, he undertakes a fair use analysis of both these works: (1) fansubs are non-transformative and are created for the exact same entertainment value as the originals. Therefore, the first factor weighs against a finding of fair use. (2) anime is a creative work and therefore falls into the core of copyright’s protection. The second factor weighs against a finding of fair use. (3) fansubs copy the work entirely at a qualitatively-similar level. The third factor weighs against a finding of fair use. (4) the likelihood of harm for either direct or derivative markets is difficult to determine in this case. However, since fansubs share their purpose with the original work, the potential for harm would likely be viewed as greater and therefore the fourth factor would most likely way against a finding of fair use. Kirkpatrick does not entirely concede the fourth point, however, and argues that fansubs parallel the Betamax case of time-shifting. In this sense fansubs, like taped television shows, are not used to build collections or libraries, and therefore would not impact future sales. Instead, he argues, “the interests of fans and corporations need not be mutually exclusive” and “cooperation is a far better way to promote the profitability of one’s copyright than bullying.”

While Kirkpatrick’s fair use analysis is mostly correct, industry representatives would justifiably take exception to the parallel between fansubs and Betamax. Not only are the technologies significantly dissimilar, but fansubs are produced for an audience that would otherwise not have access to these shows and therefore does diminish the value of licensing the property to distribute in the U.S. market. While these objections are important, they do not undercut Kirkpatrick’s conclusion that cooperation between fans and industries will be necessary to achieve the end goal of promoting anime, which is in everyone’s interests.

Free culture : how big media uses technology and the law to lock down culture and control creativity / Lawrence Lessig.

Lessig, Lawrence. Free culture : how big media uses technology and the law to lock down culture and control creativity / Lawrence Lessig. [1594200068 (hbk.) ] Chapter 12 (pages 183-207). New York : Penguin Press, 2004.
Call#: Van Pelt Library KF2979 .L47 2004

Professor Lawrence Lessig has been the most eloquent proponents of the Free Culture movement since its inception. He argues that recent copyright laws abandon a tradition of free creative expression that has existed throughout American history and instead impose undue restrictions that have chilled the growth of culture, especially at this moment when digital technologies have enabled audiences to participate in making their culture unlike ever before. Lessig was particularly outspoken about the failure of copyright to distinguish between commercial and non-commercial lifetimes of works, the latter of which is important and valuable for the development of culture. In this context, copyright does not fulfill its goal of promoting progress, but rather burdens free expression and does harm; access to culture is a value which the current market system and copyright regime have inhibited.

Although Lessig does not address fansubbing directly, his arguments about the value of access to non-commercial works can logically be extended to this domain. Typically fansubbing groups only work on unlicensed series, which are only distributed in Japan and therefore unavailable to English audiences. By prohibiting altogether the translation and reproduction of these works, copyright law is not incentivizing their legal distribution, but rather restricting cultural growth by indiscriminately denying American audiences any access to an entire medium of expression on the basis of preserving the rights-holder’s complete control over distribution even if they are not commercially exploiting the work. In this case copyright has not balanced the interests between creators and the public, but rather established a view of creative works as absolute property rights that creators are entitled to perfectly control. Neither the Constitutional basis nor the long history of copyright law supports such an interpretation, which has been shown to be deleterious to the purpose of expanding culture and promoting creativity.

SSRN-Of Otaku and Fansubs: A Critical Look at Anime Online in Light of Current Issues in Copyright Law by Jordan Hatcher

Jordan Hatcher describes the fansubbing community as sitting at an interesting boundary between creative production and file-trading. He notes that fansubbers are guided by a cultural goal and attitudes that exist within the community itself, comparable more to the FOSS movement rather than typical pirates. After recognizing these nuances between fansubbers and pirates, Hatcher asks, “Do our laws stifle creativity and sharing to the point where it harms society?” While there are certainly cultural benefits created by the fansubbing community, there also exists the potential to replace market need for official licensed translations, thus causing an economic harm to the artists and creators of these works. He argues that a fair use defense based on these benefits, such as market enhancement or interest-building, are undercut by the reality of fansubbers' actual practices of providing a substitute product. While Hatcher concludes that it is still too early to come to any conclusion about the benefits of fansubs, he believes that the relationship between fansubbing communities and the anime industry will “reveal a great deal about copyright in a connected digital world.”

Hatcher challenges the model of fansubbing as an activity that creates growth and benefits for the anime industry by undercutting the traditional market enhancement argument that fans usually propose. Copyright should not be frivolously violated because protection of creative products is a culturally beneficial instrument that provides creators with incentives to produce new works. Therefore, in order to produce a culturally beneficial arrangement that incorporates the benefits of fansubbing communities while minimizing the harms to creators, both groups must respect the value each respectively generates and come to an agreement that meets their common goal of promoting anime. Such an agreement is possible because, unlike typical pirates, fansubbing communities operate around a code of conduct and thus have demonstrated a level of compliance with industry requests not seen in other areas of the piracy debate.

SSRN-Celebrating Two Decades of Unlawful Progress: Fan Distribution, Proselytization Commons, and the Explosive Growth of Japanese Animation by Sean Leonard

Sean Leonard extensively documents the history of anime in the United States from 1976-1993 in order to demonstrate how fan communities acted as proselytziation commons that shaped the formation and initial operation of the anime market. Leonard defines a proselytization commons as a free exchange of media in order to advance a directed cause, namely the promotion of anime to a wider audience. While these fan activities infringed on the copyright of Japanese companies, the companies nevertheless responded with either strategic ignorance – that is, they sought benefits that result from unauthorized use – or plainly dismissive ignorance. Leonard’s legal analysis classifies the fansubbers’ activities as producing a desirable outcome, but not being sanctioned by law. Since current copyright law prohibits these culturally beneficial activities, Leonard proposes a revision that excuses unauthorized reproduction of foreign works until they are actually licensed and distributed in the domestic U.S. market. He grounds this revision on the early American tradition surrounding copyright law based on an originalist interpretation of “limited Times” and “promote progress” in the Constitution.

Leonard’s analysis of the history of fansubbing presents one of the strongest rebuttals to the argument made by many media industries that the progress of culture requires “perfect control over copyright from fixation to expiration.” Grass-roots distribution of anime through fan networks not only promoted cultural growth by acting as a proselytization commons, but also created a multi-million dollar market for these products as well. Therefore, the example of fansubs demonstrates how culturally beneficial activities that in fact meet the goal of “promot[ing] progress” are nevertheless unjustly restricted by rigid copyright laws. The fact that current copyright laws are in fact having the opposite of their intended effect should prompt citizens and lawmakers to consider exemptions, such as expanding Fair Use, that legalizes these activities.

PAPARAZZI/BLOGGER FACE-OFF: OPPORTUNITY KNOCKING FOR A FAIR USE LIMIT?

In an article published in the Cardoza Arts and Entertainment Law Journal, Eaton O’ Neill, a J.D. Candidate at the Benjamin N. Cardozo School of Law, considers whether Perez Hilton’s use of X17’s photographs constitutes a fair use. As the cornerstone to his argument, O’Neill classifies Hilton’s use of the photographs as a satire, thereby affording a harsher evaluation to the Hilton’s claim of fair use. In a large portion of the article, O’Neill discussed landmark parody/satire cases, including Campbell v. Acuff-Rose Music, Inc., in which the Supreme Court determined that a rap music group’s parody of “Oh, Pretty Woman” constituted a fair use because it was “unlikely to serve as a substitute of the original” and that “no more [of the song] was taken than necessary”; Suntrust Bank v. Houghton Miffin Co., in which the Court of Appeals for the Eleventh Circuit vacated a preliminary injunction that barred Houghton Miffin Co. from publishing “The Wind Done Gone,” a parody of “Gone With the Wind,” because the parody would not “substitute nor ultimately displace revenue” of the original; and Dr Seuss Enters., L.P. v. Penguin Books USA, Inc., in which the Court of Appeals of the Ninth Circuit upheld the preliminary injunction barring Penguin Books USA from publishing “The Cat NOT in the Hat!,” a satire on the O.J. Simpson trial, because Penguin Books could not provide “justification for the very act of borrowing.” After discussing these landmark cases, O’Neill professes that he believes Hilton’s use of X17’s photographs represented a satire, and not a parody. He notes that a satire “employs the original work as a vehicle for commenting on some individual or institution and not on the work itself.” Hilton does not “aim his modifications to comment or criticize the original photos,” O’Neill adds, “but targets [his] commentary or criticism…on the celebrities themselves.” Evaluating the four factors of fair use from the perspective the Hilton’s use constitutes a satire, O’Neill proclaims that “the only reasonable outcome of the dispute between X17 and Perez is a finding of copyright infringement.”
This source is useful in my research paper as it presents a unique legal analysis in classifying Hilton’s work as a satire. According to the cases O’Neill provides in his article, if Hilton’s use were deemed a satire, he would have to prove justification for why he used a given photograph, as opposed to any other of the celebrity. Therefore, it would appear extremely difficult for any of Hilton’s uses of X17’s photographs to constitute a fair use. However, I believe justification in a selection of a specific photograph could be made when Hilton uses it to enhance his commentary. For example, if Hilton breaks news that Lindsay Lohan signed a major endorsement deal, and uses a photograph of her shopping and adds hundreds of dollar signs and fifteen more shopping bags in her hands, he transforms the photograph for the purpose of his news commentary. His justification is that he selected a photograph where Lohan was shopping, as opposed to her partying at a nightclub. Futhermore, I disagree with the declaration that all of Hilton’s uses are satires, as he may be targeting the photograph itself. For example, if a photographer captures a celebrity in a compromising position, and Hilton draws in a phallic symbol, Hilton can claim that he is parodying the position of the subject in the photograph itself, rather than the individual it portrays.

26 Cardozo Arts & Ent LJ 535

Universal City Studios Productions LLLP v. Lavadeira | Complaint for Copyright Infringement

In February of 2007, Universal City Studios Productions (Universal Studios) filed a complaint against gossip blogger Mario Lavandeira (p/k/a Perez Hilton) alleging copyright infringement. According to the document, Universal Studios produced and distributed the romantic comedy “The Break Up” starring Vince Vaughn and Jennifer Aniston. Universal Studios filed an application with the U.S. Copyright office to register the motion picture. During production or post-production of the motion picture, Universal Studio alleges that certain images of Jennifer Aniston were illegally copied, including a topless movie still of the actress. Obtaining this image (provided as “Exhibit A” in the complaint), Perez Hilton posted an “identical reproduction” on his website. Universal Studio charges that Perez Hilton “reproduced, distributed and publically displayed [Universal Studio’s] copyrighted images…in violation of [Universal Studio’s] exclusive rights…under 17 U.S.C. § 106.” Universal Studios sought an order from the court “enjoining Defendants from any further infringement” and requested the “U.S. Marshall to seize and impound all items…which infringed [Universal Studio’s] copyrights.” Responding to the lawsuit, Perez Hilton’s attorney Bryan Freedman stated, “[Hilton] used [the photograph] for the purpose of news commentary and satire as he often does with photographs. That constitutes fair use and there's nothing illegal or improper with that use."
The complaint and Freedman’s response are extremely useful in determining whether or not Perez Hilton’s use of a movie still constitutes fair use. First, is should be noted that Freedman chose the word “satire” to describe his client’s use of the photo, rather than “parody.” This puts his client in a more difficult position, as it is harder to proclaim fair use for satirical works. When posting the image on his website, Hilton drew three white teardrops under Aniston’s eyes, claiming that this constitutes a fair use as it transforms the work. Although the case was settled out of court, a quick analysis of the four factors, which will be elaborated on in my research paper, clearly demonstrates that these few marks do not constitute a fair use of the movie still. There is nothing transformative in Hilton’s expression of the photograph, as no new meaning was added to the work. The purpose of Hilton’s use was simply to display a topless photo of a famous actress. The commentary he added below, simply stating that the picture was a topless photo of an actress, was completely unrelated to the three teardrops. Had the commentary discussed Aniston’s highly emotional nature, Hilton would have a better claim of fair use as he transformed the picture to match his opinions. Furthermore, in regard to the nature of the work, the fact that that photo of Aniston was not used in the final cut of the movie weighs against Hilton, as Universal Studios has the right to show the first public appearance of the movie still. The third factor, amount and substitutability of portion taken, does really not weigh in favor of one party, as the “newsworthy” significance of the movie still and the alleged satire requires the whole movie still to be used. The final factor, the effect of use upon the potential market, significantly weighs in favor of Universal Studios. As Universal Studios held the copyright to this still, it is possible the studio could have licensed the image for a substantial fee. Overall, Hilton’s use of the movie still as the news story does not constitute a fair use as he did not transform the still.

Perez Hilton: Fair Use Blogger or Incessant Infringer?

In the fast-paced entertainment world, Perez Hilton has become a mainstream celebrity, operating his gossip-driven website www.perezhilton.com. Before the weekly tabloids hit the stands, Hilton breaks celebrity gossip on his website, which receives million of visitation hits a day. To accompany his commentary, Hilton uses photographs, music, and movie clips, all of which are copyrighted material. This research paper examines claims of copyright infringement against the famous blogger by photographers, movie studios, and photography agencies. In his defense, Hilton argues that his use of this copyrighted material constitutes fair use, as he transforms the works through his infamous white doodling for the purposes of his news commentary. This paper will elucidate whether Hilton, on "Hollywood's most hated website", violates the rights of valid copyright holders, or transforms their material for a different purpose, through careful of examination of legal documents and the four factor fair use test, to determine: "Perez Hilton: Fair Use Blogger or Incessant Infringer?"

Copyright Infringement and the First Amendment

Celia Goldwag's article in Columbia Law Revew analyzes the clash between copyright law and the First Amendment as well as discussing any implications that this may or may not have on providing special privilages to copyright infringers. The first portion of the paper mentions that because copyright law intends to advance public welfare, four limits on copyright exist to curtail most conflictions with First Amendment rights. These include limited duration of protection, authorship requirements, distinction between ideas and expression, and the fair use doctrine. The distinction betwee ideas and expression satisfies most concerns with First Amendment rights because access to ideas, not expressions, is what satisfies the purpose of the First Amendment. When expression is necessary for the purpose of the work, however, the fair use doctrine can come to the defense of those charged with infringement. The article then goes on to discuss the narrow circumstance in which these four precautions do not stop all collisions between copyright and the First Amendment, namely when a work's idea is "wedded" to the protected expression, such as graphic images. Goldwag sites a case (Rosemont Enterprises, Inc. v. Random House, Inc.) in which the court ruled that copied articles were not infringement because that would deprive the public of dissemination of important facts of public interest. She then discusses how that decision was applied in Time, Inc. v. Bernard Geis Associates (discussed elsewhere). While "commentators have read Rosemont and Geis as establishing a public interest-based first amendment privilege to copyright infringement," this article takes an opposing view. It holds that such decisions were improperly made and such a privilege would not be effective. A general privilege and exemption from infringement of such cases where the First Amendment is at stake would undermine the intent of copyright law, as "every thing is imbued with public interest to some degree; any privilege, therefore, would be either totally dependent on the subjective values of the judiciary, or so broad in scope that the mere fact of infringement would be proof of public interest." The article continues to say that regardless of if a privilege was even possible to construe, the First Amendment's conflictions with copyright does not demand it. The area of contention is so narrow that all that is necessary to solve this problem is to balance society's interests- public interest in free expression, receiving information, protecting individuals' rights to create and express themselves- with the interest of copyright protection. The article holds that when a conflict does occur, no privilege is necessary as long as the infringer can still print the material without injunction while the copyright owner receives compensatory damages and nothing else.

The opinion held in this article applies to the question of how copyright effects the public interest because while one side may argue that in some cases, the First Amendment is violated and thus harms the public interest, this opposing view holds that copyright law in itself resolves such conflicts, as its intent is already to protect the public interest. No other measures, according to this view, are necessary. The article contributes support to the notion that copyright itrinsically serves the public interest, thus providing one answer to the question of this project.

Family Entertainment and Copyright Act

While this act stipulated a number of things, perhaps the most contentious portion is its legalization of DVD filters like ClearPlay. The section entitled the Family Home Movie Act (FMA) states that DVD players that allow consumers the option of editing out specifically categorized content (such as drug use or sexual themes) are legal. It is not legal, however, to create a new, permanent copy of the DVD (as CleanFlicks did).

This piece of legislation complicates my argument, as it means that ClearPlay is considered legal. However, other articles I have researched may still contradict this legislaton. For example, the FMA implies that artists in America do not have moral rights, but a stipulation of our membership in the Berne Convention is that we must respect moral rights. Second, Amstrong makes a clear case for moral rights and for the appeal of FECA; and Madison's theory of rewriting fair use suggests that even though ClearPlay may pass the four factor test, it still may not be fair use.

Rewriting Fair Use and the Future of Copyright Reform

Madison’s article, which appeared in the Cardozo Arts and Entertainment Law Journal, addresses ClearPlay in a somewhat roundabout way by attempting to redefine the factors of fair use. For Madison, the concerns surrounding ClearPlay—whether the consumer has the right to watch a movie as he pleases, or the technology is a creative reworking of the film that impedes on the director’s vision—highlight the obscurity of the four factors. The definition of the four factors has instead become an ambiguous representation of the boundaries we believe exist in copyright. Madison proposes that we redefine fair use to state its true purpose: to answer the question of whether the value of the resulting work outweighs any loss the copyright owner might incur.

This article supports my thesis because it argues that even though a work may pass the four factor test, it may not be fair use. The argument put forth by Madison stands outside the question of whether consumer rights are more important than artist rights; instead, the foremost question about the legality of ClearPlay should be whether the value of the films created using the filtering technology outweigh the loss of artistic vision the director and studio experience. This is a question best answered, perhaps, by Amstrong’s “Feca Matter,” which cites ClearPlay and other similar products as stating that they do not significantly change the work, and that the film is still recognizable. If this is the case, then the value of the two films is the same, and thus ClearPlay is not fair use

Bringing Sexy Back

Metamorphosis of Artists' Rights in the Digital Age

In this transcription of a symposium on the changing rights of the artist, Jonathan Band (partner at Morrison and Foerster), Rebecca Tushnet (Asst. Professor at NYU Law School), and Eugene Mopsik (Executive Director of the American Society of Media Photographers) discuss the rights of the directors whose films are edited by ClearPlay technology. Band recounts the comments of various lobbyists and political figures testifying on the Family Entertainment and Copyright Act, stating that the Register of Copyrights argued against the bill because users have the choice to buy a product and should simply refrain from buying an offensive product rather than disrespect the vision of the author. Jack Valente also testified against the bill because he felt that the technology indeed infringes on the derivative work right because the software could be designed to skip not just offensive content, but any content. Mopsik addresses the concern that viewers attribute the features and feel of the edited work to the director’s vision. Lastly, Tushnet acknowledged that there is a “spectrum” of acceptable editing (ClearPlay is acceptable while CleanFlicks is not), and that consumers watching a CleanFlicks DVD have the same experience as consumers watching a ClearPlay DVD.

This piece supports my thesis as it discusses some of the immediate political reaction to the legislation that legalized ClearPlay. Even though FECA is now a law, the arguments made above against the legislation are still valid, particularly Valente’s argument. Mopsik’s discussion of attribution is more in depth than those in other articles, which mostly discuss whether or not a consumer knows the film is edited, and instead analyzes who the vision belongs to rather than who has the right to decide the vision.

New Economy; New visibility for 1998 copyright protection law, with online enthusiasts confused and frustrated.

Amy Harmon's article of August 13, 2001 in The New York Times deals with the inequality posed by the Digital Millennium Copyright Act, and furthermore, shows how it does not make any sense. Harmon's article artistically obfuscates the purpose and legitimacy of the anti-circumvention provisions of the DMCA, showing that everyone from law experts, to Congressmen, to computer science experts, down to average consumers do not understand why their traditional copyrights are stripped away because of new technologies. Harmon points out the biggest paradox of the DMCA: it estends rights to consumers, but doesn't allow them to exercise those rights.

Economically, Harmon's article shows how the United States Congress jumped off the deep-end with regards to economic thought, and basically stripped away any right of ownership of ordinary citizens, rather choosing to allow dominant corporations to limit what consumer's can do with the material that they purchase, and increasing the potential economic rent that they can make from their massive consolidation of content.

Harmon's article also chronicles the arrest of Dimitri Sklyarov, the Russian computer scientist who was arrested in the United States during a layover in Las Vegas for bypassing the encryption on Adobe e-books in order to permit consumers to make copies of their purchases. The right to make a copy for personal use--something guaranteed by the fair use doctrine--has been stripped away by anti-circumvention provisions, leaving consumers confused, and wary to stay in the market for content.

Harmon's piece shows the frustrating and difficult transition from fair use to anti-circumvention. She notes that now there is no device that can distinguish between fair and unfair use, and the government simply assumes the worst of its citizens. This article chronicles the dangers of the government's assumption that consumers in the United States are crooks, when they really seek to fuel the industry for content, while also exercising their due rights.

FECA Matter

In “Feca Matter,” which appeared in the John Marshall Review of Intellectual Property Law, Jacob Armstrong states that arguments for DVD-editing technology like ClearPlay have favored consumer rights over artist rights, and that artists rights must be protected. Armstrong, an attorney and legal scholar, argues that regardless of why or how a film is edited, the resulting film changes the expression of the copyrighted work that the director intended. While consumers may want the right to change the way a film is viewed at home using a specialized DVD player like ClearPlay rather than a remote control, artists want the intended meaning of their work to be preserved. Furthermore, the passage of FECA violates the U.S.’s presence in the Berne Convention, which states that members must have moral rights in their legislative understanding of copyright law.

Armstrong’s article supports my thesis, as it makes a strong, clear case for artists’ rights and shows a coherent path towards moral rights, rather than simply proposing them as necessary for the illegalization of ClearPlay. Furthermore, Armstrong points out that companies like ClearPlay have claimed in court that they are not creating anything new from the film; that they are therefore preserving the film and therefore not violating artists’ rights. However, if such is the case, then ClearPlay is not fair use because it does not transform the work and it takes most of the film (or the “heart” of the work).

Technology; DIGITAL COMMERCE The Clinton Administration is taking a tough stance on cyberspace copyrights.

This source is an article written by Daniel Caruso which appeared on the 'Technology' page of the New York Times on January 19, 1998 amidst the hype over the Clinton Administration's push for the Digital Millennium Copyright Act. The article outlines the general dissent that occurred over the passage of the bill, which at the time was referred to as the "World Intellectual Property Organization Copyright Treaties Implementation Act", hyped up by the Clinton Administration as a necessary step for the United States to take to align itself properly with the international community. Intellectuals and 'cyberspace' law experts came down strongly against the act, as many thought that it would limit technological innovation, and others thought that it was an illegal disruption of fair use. The author makes it clear to the reader that the fact that information that should be available by law would be stripped away if the owner of the copyright somehow technologically encoded it.

Although this article may seem to be old news with the benefit of ten years of retrospect, it is the type of polemic that gives a look into the mindset of Americans as the legislation was being negotiated and passed. Clearly, at the time there was much more limited use of information technology, and people were still using print versions of content. It is also quite fascinating that the law would be used to limit access to information in a time of growing interconnectedness. Furthermore, the author notes that the controversial anti-circumvention provisions enable content owners to receive favorable terms in renting or selling their property. The Clinton administration tried to sweep the provisions in as necessary protocol for accordance with an international treaty; however, this article calls into light that the interests of the legislation are aligned against the public interest, and rather with those of large corporations. This type of impassioned defense against the legislation shows that had the Clinton Administration and Congress been more transparent with its content and intent, it may not have passed so easily. This provides a dimension to my paper that is lacking in the journal articles.

Bit Torrent, Grokster, and Why Entertainment and Internet Lawyers Need to Prepapre for the Fair Use Argument for Downloading TV Shows

There are many “legal issues facing copyright holders of television shows whose product is available online through modern peer-to-peer networks.” In the instance there is a copyright infringement in peer-to-peer file sharing, court cases are left to determine whether or not the fair use policy is applicable. It has been suggested that the fair use argument depends “on whether the end user downloads for a private viewing experience or whether the end user downloads and extends the use beyond mere private viewing.” In other words, the courts are responsible for determining whether the character of the television show has been changed from the original. If, in fact, individuals are downloading television shows with the intention of using it for more than just “a private viewing experience,” then the fair use argument is much less valid.

It is suggested that the television industry take as many anti-piracy precautions as possible, so to avoid the level of illegal downloading in the music industry. Though the fair use argument may prevail in some instances, the majority of copyright infringement and piracy cases cannot be explained by the fair use doctrine. Therefore, copyright laws need to be updated to cover the technology that pirates are using to download their favorite television shows. As the title suggests, individuals involved in these copyright cases need to prepare for the fact that the fair use argument does not work with television shows as well as it may with music.

X17 Inc. v. Lavandeira | Complaint for Copyright Infringement

X17 is a photography agency that “owns and operates one of the world’s leading archives in celebrity-related photographs.” Perez Hilton posted reproductions of X17’s work, and often drew sexually explicit “satirical” doodling on the pictures. Using more than fifty-one reproductions of X17’s images, X17 filed a complaint alleging copyright infringement. According to the complaint, “X17 has licensed the rights to reproduce its copyrighted works…to hundreds of newspapers, television stations and other prominent media outlets throughout the world.” X17 alleges that Hilton used “timely photographs covering breaking news events” on his gossip written website that “receives 2.5 millions viewers” daily and “generates thousands of dollars per day in advertising revenue from it website. Some of the photos included “Britney Spears driving her son on her lap,” “Britney Spears exposing herself,” and “Cameron Diaz in a beige sweater out golfing.” In the case of all fifty-one photos, X17 argues, “The photographs were virtually identical reproductions of copyrighted work. [Hilton] thereby reproduced X17’s copyrighted works in copies, distributed copies of the copyrighted works, and publically displayed copyrighted works…in violation of exclusive rights under 17 U.S.C. § 106 that X17 holds in the photographs.” As a prayer for relief, X17 asked the court “for the entry of an injunction providing that [Hilton]…be permanently enjoined” from using X17’s photographs. Additionally, X17 asked for “actual damages for copyright infringement,” “a seizure order directing the U.S. Marshall to seize and impound” X17’s copyrighted photos in Hilton’s possession, and “for a disgorgement by [Hilton] to [X17] of all profits” derived from Hilton’s use of the photographs, among other damages and fees.
This complaint is useful in my research paper as it involves Hilton’s use of newsworthy and not-newsworthy copyrighted photographs. In the document, X17 establishes that hundreds of gossip tabloids and magazines rely on its photographs, which break news events. In the case of these photographs, it would be hard for Hilton to proclaim fair use. A quick analysis of the factors of fair use reveals that Hilton’s doodling on the X17’s image of Britney Spears driving with her son on her lap does not transform it in any way, as his news story simply refers to Spear’s reckless endangerment of her child. Hilton uses the image in it entirety and if posted on his website immediately, it would destroy the licensing value of the photograph. Therefore, Hilton’s use of a newsworthy photograph, in which he doodles on the photograph, does not constitute fair use. This is the same if Hilton did not doodle, because if Hilton can use the image and write his own news story below discussing what's in the photo, and this was determined to be a fair use, why would tabloids ever license a photo if they could also claim fair use? In that case, why would paparazzi or photographers exist at all if they could not license their photos? Finally, Hilton’s use of a non-newsworthy photograph, such as Heather Locklear eating, may be deemed a fair use if he transforms the photograph to match his news story. Overall, this source allows me to evaluate different situations of Hilton’s use of photographs and whether or not his use of copyrighted images constitutes a fair use.

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