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.

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?" (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.

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.

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.

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.

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.

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. 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 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: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 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 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.

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' 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.    

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.

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.

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.

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

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.

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

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.

    “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” 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.

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.

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?

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.

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.

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.

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.

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.

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."

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.

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.

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.

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."

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?

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.

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.

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.

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.

    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

  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.

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.

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.

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

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.

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.

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).

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.

    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 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.

  Chapter One of Title 17 of the United States Code presents the “Subject Matter and Scope of Copyright” in American law.  According to Section 102, copyright protection is given to “original works of authorship” including “pictorial, graphic, and sculptural works.” Section 106 states the “exclusive rights” of the owner of a copyright includes “to display the copyrighted work publicly.” Section 107 delineates that “the fair use of a copyrighted work...for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.”   In evaluating an alleged a fair use, Section 107 presents four factors to be considered: “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational uses; the nature of the copyrighted word; the amount and substitutability of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for a value of the copyrighted work.”  In Section 113, “Scope of exclusive rights in pictorial, graphic, and sculptural works,” an exclusive right is given to the copyright owner to “reproduce a copyrighted pictorial…in or on any kind of article, whether useful or not.”  Chapter Five of Title 17 presents “Copyright Infringement and Remedies” in American law.  Stated in Section 501, “anyone who violates the exclusive rights of a copyright owner…is an infringer.”  In Section 502, the law states “any court having jurisdiction…may…grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” Additionally, Section 504 states the infringer of copyright is liable for “the copyright owner’s actual damages and any additional profits of the infringer, ” or “statutory damages.”  Statutory damages may be awarded up to the amount of $150,000.  
    For the purposes of my research paper, the aforementioned sections establish that photographs can be copyrighted and cites the four factors used to analyze fair use cases.  Argued by the photography agencies in complaints, the exclusive right “to display the copyrighted work publically” is flagrantly violated by Perez Hilton, who often displays copyrighted photographs before the agencies can license them to weekly tabloids and newspapers.  Although Hilton argues that his use of the photographs represents “news reporting,” the four factors stated in the copyright law will allow me to determine if Hilton’s infamous doodles and commentary constitutes a fair use.  Hilton’s alleged fair use will heavily depend on whether his doodling on the photographs is transformative, in that it adds new meaning or expression to the copyrighted work, or if his news commentary is transformative, in that it adds value in the form of new insights or understandings.  Furthermore, the “Copyright Infringement and Remedies” section will allow me to evaluate the photographers and photography agencies’ prayers for relief in the filed complaints.  The law states that infringers are liable for either actual damages and additional profits or statutory damages.  If Perez Hilton’s use of photographs was infringement, it will be interesting to research whether or not courts would award statutory damages per photograph or award actual damages.  Although Hilton does not charge a fee for visiting his website, he earns significant revenue by means if advertising, and his use of copyrighted photographs certainly increase his advertising rates.

    Zomba Recording LLC (“Zomba”) is a record company that distributes copies and phonorecords of sound recordings performed by music artists, including Britney Spears, Leona Lewis, and Beyonce Knowles.   On October 30, 2007, Zomba released Britney Spears’s album Blackout, her first record released since 2003.  According to the first amended complaint filed by Zomba against Mario Aramando Lavandeira, the legal name of celebrity blogger Perez Hilton (“Hilton”), Hilton posted copies of tracks of the album on his website www.perezhilton.com.  As a result, Zomba was forced to push forward the release of Spear’s album.  From August 23, 2007 to October 6, 2007, Hilton consistently posted eight unreleased Britney Spears’ tracks (Perfect Lover, Heaven on Earth, Break The Ice, Everybody, Hot as Ice, Piece of Me, Radar, and Kiss You All Over), as well as one released track (Gimme More).  The complaint states that Zomba consistently appealed to the Recording Industry Association of America to demand that Hilton remove the sound recordings from his website and demanded that Hilton’s Internet service provider (“ISP”) disable access to the sound recording.  Although the ISP disabled access to the recordings, Hilton “continued to post and re-post unlawful copies” of the sound recordings.  For each of the individual sound recordings, Zomba argued that Hilton infringed Zomba’s copyright “ by copying and reproducing plaintiff’s [sound recordings],… by distributing copies…to the public,” and “by performing [sound recordings] publically.”  As a prayer for relief for copyright infringement, Zomba asked that Hilton be “enjoined…from infringing…[Zomba’s] copyrights…” and that Hilton “be required to pay plaintiff…damages…[Zomba] has sustained in consequence of [Hilton’s] infringement.   
    This complaint is of importance to my research paper as it involves Hilton’s use of sound recordings.  An analysis of the four factors of fair use clearly weighs in favor of Zomba.  For one, there is nothing transformative in Hilton’s posting of the songs.  He does not produce a new mix of alter the material in any way, shape, or fashion.  This is also the first case in which the nature of the copyrighted work weighs heavily against Hilton, as all but one of the songs was unpublished.  As under copyright law the author has the right to control the first public appearance of its expression, Hilton clearly violated this right by posting the tracks before the release.  Although the tracks posted did not represent the final release version, the heart of the work was expressed through the “draft” versions on Hilton’s website.  Therefore, coupled with the fourth factor, the sound recordings on Hilton’s website substantially effected the potential market, as individuals could substitute the tracks online for the actual album.  This conclusion is further substantiated by the fact that Zomba was forced to release the album two weeks earlier in an attempt to retain its economic profit.

    Seeking summary judgment on the issue of the copyright claim, Perez Hilton, in X17 Inc. vs. Mario Lavadereia, filed a memorandum of points and authorities in support of motion for summary judgment, or in the alternative, partial summary judgment.  According to the document, “X17’s copyright infringement claim fails because [the court] lacks subject matter jurisdiction.”  Hilton stressed that the Copyright Act provides that "no action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made,” and therefore, “an invalid registration nullifies the federal court’s subject matter jurisdiction.”  In it’s applications filed with the U.S. Copyright Office, X17 identifies itself as the author and that the photographs were a “work made for hire,” but does no state the actual photographer or reference any agreement between the photographer and the agency.  As a latch ditch effort, X17 created assignment agreements as a “litigation strategy.”  In the document, Hilton declares that none of the photographers were X17 employees and that he and X17 were not competitors, both claims substantiated with testimony of the photographers and principals of the photography agency.  Hilton asserts, “Summary judgment should be granted on X17’s copyright claim because the undisputed facts demonstrate that’s its purported copyright registrations are invalid.”  When X17 represented itself as the owner of the photographs on the basis that they were “works for hire,” it must prove that the “work was prepared by an employee within the scope of his or her employment” or a “certain work 'specially ordered of commissioned.’”  Hilton declares that the photographers were not employees of X17 and that there was no agreement between the agency and the photographer in writing that the photographs were “works for hire.”  Additionally, the document purports that the three-month grace period to register some of the photographs after first publication had passed, and therefore, X17 could not meet the requirement for statutory damages and fees.     
    Hilton’s claim that material misrepresentations in X17’s copyright applications invalidate the registrations serves as an alternative defense to his fair use claim.  For my research paper, this document allows me to investigate whether or not X17’s copyrights are valid and to dissect the relationship between the paparazzi agency and the photographers.  This is the first document that introduces the term “work for hire,” as X17 maintains that they were assigned the rights to the photographs and commissioned the works.  However, if Hilton was able to successfully prove that X17 does not hold valid copyrights to the photographs, his use of the photographs, newsworthy or not newsworthy, with doodles or without doodles, would not constitute infringement, as the photographs may belong in the public domain.  Therefore, photography agencies such as X17 should ensure the proper protection of their photographs, and perhaps change their business model from “independent contractors” to employees to properly classify the photographs as “works for hire.”

  On November 22, 1963, Lee Harvey Oswald assassinated President Kennedy in Dallas, Texas.  At the exact time of the murder, Abraham Zapruder, who happened to be filming a home video, documented photographic evidence of the assassination on his camera.  A few days after, “Life” magazine, a publication of Time Incorporated, purchased the rights to the film, and parts of the film were then published in several issues of the magazine.  In his book “Six Seconds in Dallas,” Josiah Thompson utilized “sketches” of the Zapruder film, which were later declared as clear copies, to enhance his study of Kennedy’s assassination.  In response to the book’s publication, Time Incorporated filed a complaint against Thompson and his publisher, alleging the film was “stolen surreptitiously” and the defendants use of “copies of the frames” was “an infringement of statutory copyrights, an unfair trade practice, and unfair competition.”
    In response to a motion by Time Incorporated for summary judgment, the district judge evaluated whether or not Thompson’s use of the film shots constituted a fair use.  The judge notes that Life properly registered the film with the copyright office and stated that Thompson’s book “relie[d] heavily on the Zapruder pictures.”  At a first question to be answered, the judge considered whether or not there was a valid copyright in the Zapruder pictures.  The judge evaluated the plaintiff’s assertion that the pictures were simply records of what took place and that “news could not be copyrighted.”  Evaluating past precedents, the judge stated “any photograph may claim the necessary originality to support a copyright claim merely by virtue of the photographers’ personal choice of subject matter, angle of photograph… and the…time it was taken.”   Next, the judge evaluated whether or not the use of the pictures constituted a “fair use.”  The judge declared that there was “a public interest in having the fullest information available on the murder of President Kennedy.  Thompson did serious work on the subject and has a theory entitled to public consideration.”  Further, the judge proclaimed that the book “was not bought because it contained the Zapruder pictures” but because of the “theory of Thompson and its explanation is supported by the pictures” and that there was no injury to Time Incorporated because there was “no competition.”  For these reasons, the judge granted summary judgment for the defendants as the use was deemed a fair use.     
    This decision is vital for my research paper, as it discusses the fact that all pictures can qualify for the originality needed for copyright and that “serious work” and a “theory” in association with a copyrighted photo can constitute fair use.  For one, Hilton cannot claim that a paparazzo’s photograph lacks originality, and therefore cannot be copyrighted, because the photographer, among other things, personally chose “the subject matter.”  Furthermore, it exposes the fact Hilton cannot claim fair use in cases where he publishes newsworthy photographs because he simply states what is in the photograph, rather than imparting a theory or adding anything transformative.  Individuals go to Hilton’s website to see the photographs, not to see Hilton’s obvious explanation of them.  As opposed to this case, where Time Incorporated and Thompson operated in different markets, Hilton and the copyright holder are in direct competition, as Hilton greatly reduces the value of copyrighted work because the pictures are exhibited in whole on his website.

   At 5:30 A.M. on January 3, 2004, internationally known celebrity Britney Spears married Jason Alexander, an unknown individual, at the Little White Chapel in Las Vegas, Nevada.   In November of 2006, Perez Hilton, eager to maintain his claim to be the “Queen of All Media,” published a photo of Jason Alexander on his website, juxtaposed next to a photograph of Britney Spears. Accompanying the photographs was a quote from Alexander, who stated that he and Spears used ecstasy and cocaine.  Ken Knight, a professional photographer created the image that Hilton used on March 9, 2000, and registered the photograph with the U.S. Copyright Office on January 9, 2004. In 2006, Knight filed a complaint against Perez Hilton, arguing that Hilton’s use of his photography infringed Knight’s copyright.  Knight provides a copy of the registration number to prove validity of his copyright. In the complaint, Knight argued “there was instant and significant demand within the publicity, news and entertainment industries for photographic images of ‘Mr. Britney’” and photos “incorporating those whose lives intersect hers…are licensed and sold for significant fees.”  Further, Knight noted that “the subject image was directly hosted by Hilton on his website and was not displayed via a link or frame from any other website.”  Knight asked for damages in the amount of $150,000 and an order enjoining Hilton from infringing on his copyright.  Hilton moved to dismiss the case for improper service and lack of jurisdiction.   Approximately one month after Hilton’s motion to dismiss, Knight dropped the case. 
   This case is important to my research paper and it involves Hilton’s use of a photograph that became newsworthy, thereby making the fair use analysis more complicated.  As opposed to paparazzi that follow current celebrities, this photographer took the photograph four years before the individual entered the limelight.  Knight’s lawsuit involved Hilton’s use of the photograph two years after it had infiltrated the entertainment world, thereby reducing its potential licensing value.  A quick analysis of the factors of fair use weighs in favor of infringement, largely due to the fact that Hilton did not doodle on the photograph.  Hilton’s use of the photograph does not add any new meaning or expression and there is no justification or transformation in its use. The purpose of Hilton’s post was to reveal that Spears and Alexander used drugs.  It is evident that Hilton would have relayed the same information had the picture not been there, as the foundation for the post rests on Alexander’s quote.  Had Hilton drew references to drug use, a transformation related to his story could possibly be found.  Additionally, Hilton’s used the photograph in its entirety, and did not reduce the size by any measure, thereby taking the “heart of the work”.  The nature of the work weighs minimally in favor of Hilton, as many had already seen the photo, but the effect on the potential market weighs in favor of Knight, as Hilton’s use presented a direct-market substitute.  Had Knight not chosen to drop the lawsuit, I believe the court’s decision would have been in Knight’s favor.

In this post from “The Blog Herald,” Jonathan Bailey proclaims that the X17, Inc. vs. Perez Hilton case has the “potential to drastically impact bloggers and small webmasters."  Bailey cites the copyright cases against Hilton, including the Universal Studios suit involving a topless photograph of Jennifer Aniston.  In discussing the X17 case, he purports that the blogger and the photograph agency were at a stalemate, as Hilton’s motion to dismiss the suit was denied, but he was allowed to “keep his site online while the lawsuit was pending.”  However, Hilton’s site temporarily went down when Crucial Paradigm, his Australian web host, blocked Hilton’s access “due to the volume of copyright complaints,” and subsequently, he moved his site to the Voxel Dot Net server.  The blog post discusses a separate lawsuit filed by Hilton against the photograph agency, an obvious vindictive move, “citing what [Hilton] called unfair competition.”  Hilton argues that X17 “does not pay its photographers properly” and “hires illegal immigrants” to maintain low costs.  In discussing “what was at stake,” Bailey asserts that the decision could establish guidelines for using others photographs on the Internet, especially in regard to published versus unpublished works.  He believes that if the ruling is broad enough, the decision could “impact the Youtube crowd, many of whom take copyrighted works and make humorous modifications to the video, and it could impact link blogging services that republish articles, such as Google Reader’s “Share” feature.” 
    For the purposes of my paper, this blog post introduces information not contained in the legal documents filed in court.  The fact that Hilton’s server terminated his service is representative of the highly contentious nature of the X17 lawsuit.  Although the case only involves one individual, Hilton seems to be at the forefront of the blog world; therefore, the outcome of this case may have broad implications for the whole cyber world.  The decision of the lawsuit may elucidate what constitutes a parody in regard to photographs.  Small alterations to the photographs, in the form of doodles, may be deemed a satire, rather than a parody, by a court of law, thereby making it harder for Hilton to claim fair use.  Additionally, the “unfair competition” lawsuit referenced in the blog post may reveal Hilton’s desire to retaliate against X17.  He obviously lacks standing in a lawsuit filed that alleges that X17 exploits its photographers, some with “criminal backgrounds and gang affiliations.”  The lawsuit is clearly a public attack aimed at damaging X17’s reputation.  Finally, this blog is the first source to reference Hilton’s procedure for a takedown request.  The existence of this procedure on his website seems backwards, as Hilton is attempting to secure DMCA protection for himself.  However, Section 512 of American copyright law grants protection from monetary damages if “the transmission of the material was initiated by or at the direction of a person other than the service provider.”  In this case, however, Hilton himself is posting the copyrighted pictures on his website, not an third-party user, so he affords himself no DMCA protection.

In this article, which appeared in the Santa Clara Computer and High Technology
Law Journal, Aaron Clark argues that even if moral rights were applied to video filters like ClearPlay, the technology would not infringe on those rights. Clark quotes the case in which moral rights were first defined using the Lanham Act: “The purpose of the Lanham Act is to prevent misrepresentations, such that the author of an original work is not “present[ed] to the public as the creator of a work not his own, and thus [keep him from being] subject to criticism for work he has not done” (Gilliam, 538 F2d at 24 as qtd. in Clark 70). Under that definition, it seems that ClearPlay is violating the Lanham Act. However, Clark explains that this case was the only one in which moral rights were defined in this way, meaning that any application of the Lanham Act would be an unlikely exception to the rule. In fact, the argument was really only valid in that case because ABC did not tell viewers they were editing the piece in question and viewers might miss a disclaimer aired at the beginning of the special, and because the viewers could not compare the edited and non-edited versions. ClearPlay, on the other hand, makes it clear that the films are edited. 

This article complicates my thesis, especially in its dissection of the first use of the Lanham Act in defending moral rights. While it is difficult to argue that consumers do not know the film is being edited—they may buy the film because they know ClearPlay will edit it—it may not be possible for them to compare the edited and non-edited versions. In fact, this argument is particularly true when the intended consumer is imagined: it is not just the parent, likely familiar with the film, that watches the film, but the child who may not know anything of the original film or know that anything is missing. In fact, the child viewer may not even know that he or she is watching an edited film. Although the child is not the one buying the film, he or she is largely the reason the technology was created, and the effect on them of the film’s edits should not be forgotten.

    On www.perezhilton.com, Mario Armando Lavandeira Jr., better known as Perez Hilton, posts gossip and news stories about celebrities.  The self-declared “Queen of All Media” posts up to twenty-five stories a day, and his website receives between two and four millions unique visitors per day.  On his website, Hilton’s posts mostly consist of three parts: a title for the post, a photograph of a celebrity, and a news story or commentary.  Additionally, on most of his posts, Hilton uses a computer program that allows him to doodle on the photographs with virtual white paint.  His doodles are often sexually explicit, as he draws phallic symbols on celebrities’ faces and bodies.  In some occasions, Hilton substitutes doodles with virtual white handwriting over the photographs, often consisting of sexual or exclamatory statements.  To acquire the photographs, Hilton navigates entertainment websites, mostly those of photograph agencies, and copies the image for his own use.  Along the right side of his website, Hilton displays advertisements serviced by Blogads; it has been reported that Hilton earns up to $110,000 per month in advertising revenue.  On the left side of his website, Hilton offers his “Perez by phone” service, in which monthly subscribers receive pre-recorded messages from Hilton regarding breaking news stories, as well as a link to his clothes fashion line.  In another section of his website, Hilton includes a copyright statement on, in which he declares, “All images on perezhilton.com are readily available in various places on the Internet and believed to be in public domain. Images posted are believed to be posted within our rights according to the U.S. Copyright Fair Use Act.”
    Perez Hilton’s website is the cornerstone for my research project, as my paper investigates whether or not his use of copyrighted photographs constitute a fair use.  The doodling, the photographs, as well as the news commentary, will offer the substance needed to evaluate his fair use claim.  An analysis of his website reveals that there are, in general, five different types of posts that constitute a mix of newsworthy and not newsworthy photographs, photographs that contain and do not contain doodling, and news commentary that does or does not relate to the photograph used.  These distinct blog posts complicate my research, as it is important to determine if any or all of the uses constitute a fair use.  The existence of his telephone service, his clothing line, and the multitude of advertisements confirm that Hilton makes a substantial profit from his website.  The website’s profitability will be a factor in determining the appropriate damages awarded to the photographs’ copyright holders if Hilton’s use of the material is determined to be infringement.  Finally, Hilton’s “Copyright Statement” on his website appears to reveal a flaw in his affirmations.  For one, the notion that all the images he uses are “readily available on the Internet” and are believed to be in the “public domain” is nonsensical.  The next part of his statement, that images posted fall within his rights under the fair use act, completely contradicts his first statement.  If Hilton believes the images he used were in the public domain, there would be no need to establish a fair use, as he would have every right to use the photographs.  This flagrant inconsistency, in my opinion, immediately weakens his claims of fair use, as he obviously does not completely understand the principles behind it.

    This source linked is only McCain - Palin’s initial correspondence to YouTube.  YouTube’s response can be viewed here:
    This letter by the McCain campaign expresses former presidential candidate’s displeasure with YouTube over questionable infringement claims made by the national news media.  After the campaign created advertisements using well known video clips from national media sources and uploaded them to YouTube, news organizations like CBS sent YouTube DMCA takedown notices for hosting videos that they believed infringed on their copyright.  Central to their claim was the fact that they did not want their videos and personalities to be seen as endorsing one candidate or another.  YouTube promptly removed the videos, which drew the ire of the McCain campaign.  Even though YouTube was properly following DMCA protocol, McCain lamented that the process would take too long to be resolved (between 10 and 14 days), and asserted that YouTube should make a fair use judgment itself before removing the video.  McCain asked for special treatment, allowing for videos uploading by the official candidates’ campaigns to be looked at differently when receiving takedown notices.  In YouTube’s response, the video host declined these requests claiming that it was simply following the procedure laid out in the DMCA to protect its safe harbor status, and that they could not discriminate between uploaders.  A McCain representative asserted that the DMCA does not necessarily define with what specific speed a host must comply with a takedown notice, and responding automatically is not mandated.
    This situation provides one of the central examples I will use in my paper.  McCain’s difficulties with the intricacies of the DMCA provide a high profile example of how certain provisions can be abused.  It is particularly valuable because even though the correspondence is between the McCain campaign and YouTube, both organizations are effectively complaining about the takedown and notice process, albeit to different degrees.  Even as YouTube says it is simply following protocol, it criticizes those who abuse the takedown process.  Meanwhile, the McCain campaign reiterates the problems many see in the lack of timely recourse alleged infringers have in the process.

This article, by Ashley C. Kerns, appeared in the Loyola of Los Angeles Entertainment Law Review. Kerns, an active attorney in Los Angeles, argues that DVD ‘filters’ like ClearPlay should be available to consumers because the technology satisfied the requirements outlined by the four factors for fair use, and because of consumer rights. ClearPlay is not designed for commercial use; instead, it is for viewers watching films in the privacy of their own home. Kerns then argues that because the technology allows viewers to choose categories of offensive material they do not wish to view (such as “vain references to diety”), rather than simply editing out all offensive content, ClearPlay is rarely taking the heart of the work. Often, she explains, it only removes a few minutes of a film. The effect on the market is irrelevant, according to Kerns, because ClearPlay still requires the viewer to purchase or rent the film and profit is therefore not being taken from the filmmakers. Lastly, Kerns argues that consumers have the right to view videos they have lawfully purchased in their own homes as they please.

This article complicates my thesis in that it lays out a clear argument for ClearPlay as a lawful technology under the definition of fair use. Kerns even bypasses completely the idea of an artist’s moral rights—perhaps the strongest argument against ClearPlay—by explaining that the choppy film that the editing software creates is a way in which ClearPlay transforms its source material and therefore more strongly classifies the machine as fair use. However, while that assessment is an interesting one, Kerns’s definition of ‘transformation’ here is troubling. If a film’s expression is changed by choppy editing—for example, if a scene transition no longer makes sense because its ending is altered by ClearPlay—then the choppiness transforms the work not simply by removing lewd content, but by adding a new layer of commentary and meaning through editing. This is certainly not what ClearPlay or Kerns intended when suggesting that the technology is ‘transformative,’ but in order for ClearPlay to claim fair use, it assumes responsibility for this transformation. Furthermore, if ClearPlay is only removing a few minutes of violence from the film, is it not then using the heart of the work, and therefore not fair use?

Gail H. Cline’s 2004 article from the Hastings Communication and Entertainment Law Journal objects to the use of ClearPlay, arguing that the use of such technology violates the Lanham Act, thereby adversely affecting directors’ reputations. Cline, an attorney, does not believe that ClearPlay is fair use, and that the company is in fact guilty of contributory liability for aiding consumers in creating derivative works. Cline believes that in editing films, ClearPlay changes those things that mark a work as that of a particular director, thereby changing the way viewers identify the film and the director. Because the credits are left unchanged at the end of the film, a viewer may assume that the people listed created the filtered film rather than—or along with—the vision expressed in the unfiltered film. Furthermore, because the RAM technology of the machines creates a short-term derivative work, ClearPlay encourages consumers’ infringement.

This article supports my thesis as it argues expressly for the rights of the author/director. Not only does Cline argue that the transformations ClearPlay makes ruin a director’s artistic vision, but she also insists that this transformation does not make the technology fair use because it takes most (or the “heart”) of the film, and it seizes the studio’s potential market for creating sanitized versions of its own films.

However, this article also complicates my thesis, as it was written before the passage of the Family Rights and Entertainment Act. In fact, the existence of this law is perhaps the biggest complication for my argument in general—how is it possible to argue for the rights of the director when legislation has already deemed ClearPlay legal? However, because ClearPlay is not mentioned by name in the legislation, it is still possible to argue against the technology with the Act in place.

Darcy Williams, a ligitation and appeals attorney in Allentown, Pennsylvania, argues ClearPlay is not a violation of the Lanham Act, which protects a director’s reputation, because it does not make permanent edits to films. Furthermore, he states that consumer rights protect the technology. The way in which ClearPlay edits films, which does not create permanent changes to the film but instead automates the function of the remote control, means that ClearPlay does not create a new or derivative work and therefore the director’s reputation is not affected. And because viewer already have the ability to fast-forward or mute a film, ClearPlay is already within the rights of the consumer. Williams even suggests that part of the fault lies with the movie studios for not making edited versions of the films themselves. Finally, Williams suggests that despite ClearPlay having a solid case against copyright infringement, they should consider putting a notification in their software that the directors have not edited the films.

   This is another article that complicates my thesis, as Williams addresses directly the fact that directors may consider ClearPlay damaging to their reputations but comes down on the side of the consumer. However, even if ClearPlay is not making permanent edits to the physical film, it is still making changes to the way in which viewers experience the film. If a viewer grew up watching When Harry Met Sally without any of the sexual references, the director’s reputation would, in that viewer’s mind, be different from what it truly is. Furthermore, if ClearPlay is not making permanent edits to the film, is it really transforming the film? Williams’s suggestion that ClearPlay add a notification to its product is a good one—one that implies that without this warning, ClearPlay currently may not be fair use.

Philip Vineyard’s article, from the Tulane Journal of Technology and Intellectual Property, argues against the introduction of moral rights into U.S. copyright law. Vineyard believes that, considering the country’s relationship to the Statute of Anne, “A court should balance ‘societal benefits [in] expand[ing] public access’ to an authors’ works against the likelihood that too much expansion ‘might reduce the supply and variety of original works available by impairing the incentives for their creation’” (Lunney as qtd. in Vineyard 232). Whereas Cline’s previously discussed argument raises concerns that ClearPlay changes a consumer’s reputation because they may believe the director has approved the technology’s edits, Vineyard believes that the consumer knows that material is being skipped over and therefore the Lanham Act is not applicable. Furthermore, the availability of ClearPlay will, if anything, benefit the public interest by making more films viewable for consumers.

This argument complicates my thesis in a positive way because although an argument for moral rights is a tempting one to make against ClearPlay, it is both too simplistic and too difficult to make. The likelihood of moral rights legislature being introduced in order to protect films is low, especially after copyright law has existed for so long without it. It is difficult to say whether or not the consumer knows that material is being skipped over, and to what extent. This raises an interesting point of contention with the technology: do the consumers buy the film knowing that there is lewd content and if so, do they know how much is present? Is it assumed that the person buying the film has seen it before (such as a parent), and is going to show the film via ClearPlay to someone unfamiliar with the film and the director’s work (a child)? If so, ClearPlay is indeed infringing on the director’s reputation under the Lanham Act, regardless of moral rights.

    In this article, Paul Alan Levy echoes the calls by some to combat abuse of the DMCA notice and takedown system by shaming those who make illegitimate claims and the others who needlessly comply, as well as take possible legal action against them.  Levy also argues that the better approach would be to reform the DMCA itself, especially since both the McCain and Obama had problems with the system, and both would be a position to change the law regardless of the election outcome.  He proposes 5 specific changes in the DMCA.  The first would be to allow ISPs and service providers to not effectively be required to immediately takedown allegedly infringing material, while still maintaining safe harbor status.  Secondly, he proposes making it easier for people who receive bogus takedown claims to receive compensation via statutory damages, presumably deterring copyright holders from filing false claims.  He also suggests notification by the service provider to the possible infringer before the content is removed, as well as requiring takedown notices to be submitted to a public database for viewing.  Finally, Levy argues for all intellectual property types to be protected, not just copyright.  His agenda is put forth at a time when both potential presidents, having felt the negative effects of the DMCA, may be more motivated to remedy it.
    This article is extremely beneficial in that it outlines a significant number of ways to amend the DMCA and resolve the current notice and takedown problem.  His position is not explicitly based in anger, aggravation, or retribution, and offers a clear list of ways to fix a broken system.  I will primarily use this article to offer constructive remedies to the problem I plan to expose.  Particularly, his suggestion to allow the service provider to notify the alleged infringer prior to the content being removed, while simultaneously not surrendering its safe harbor status, is a proposal not without flaws, but could possibly be an important part of the recommendations I make to fix the system.

    This policy paper from the Brennan Center for Justice sought to determine how strong the fair use doctrine remains in the digital age.  For the section analyzing the role notice and takedown plays, the catalog of 2004 letters received by Chilling Effects Clearinghouse was used as the data set.  To determine issues concerning fair use and the First Amendment, a subset of 153 letters was used.  The authors mentioned that it is more likely than not that this data sample under represented possible speech-suppressing efforts because only those people knowledgeable enough to submit their letters to Chilling Effects were included.  With this in mind, the complaints were split into strong, reasonable, possible, and weak fair use claims.  The results were described as “troubling,” with the combination of the accusers who had only a weak claim to copyright and the alleged infringers who had a strong claim to fair use amounting to 20% of all claims.  Another 27% of claims fit into the category where there were possible fair use defenses.  In total, the author puts forth that almost one in two takedown notices had the potential of improperly hindering free expression.  The study is important because it concludes that censorship power is put “in the hand of the IP owners.”
    Although a likely assumption, this study demonstrates the correlation between strength of the fair use defense and removal of allegedly infringing material.  Naturally, the more substantive the fair use/First Amendment claim, the more likely the alleged infringing content would remain online.  I will possibly use this in support of the idea that the notice and takedown system is not as reckless and arbitrary as some would claim.  However, I will also be sure to point out that even in cases of strong fair use, there was a significant occurrence of free-speech suppression, with over 40% of material either partially or entirely removed.

    This order from the US District Court for Northern California rejects Universal Music Group’s request to dismiss the lawsuit against the music company by Stephanie Lenz.  Months after posting a clip of her son dancing to a Prince song to YouTube, Universal asked the video host to remove the clip, claiming she was infringing their copyright of the song “Let’s Go Crazy.”  Following the procedure under the DMCA, Lenz told YouTube that her video was legal, and it was restored – Universal did not pursue legal action against Lenz since her use was clearly fair.  However, in conjunction with the EFF, Lenz sued Universal for acting in bad faith, and asked for compensation covering her legal costs.  She alleged that Universal specifically did not “belie[ve] that [Lenz] actually infringed a copyright,” and that its takedown request was entirely improper.  This order covers the most recent development, with Judge Jeremy Fogel refusing to dismiss the lawsuit as Universal wanted, and declaring that copyright holders must take fair use into account before issuing DMCA takedown notices.  Universal had argued that it was not incumbent on copyright holders to consider a potential fair use defense, and that doing so would be costly and disruptive.  The Judge rejected this argument, and while admitting that he did not believe it to be likely that Lenz could eventually win the lawsuit against Universal, still allowed it to progress nonetheless.
    Fogel’s decision is going to play a big role in my paper, as this order sets precedent for other courts to look fair use at when determining takedown-abuse cases.  The decision is unique in that it helps define what a copyright holder must do to clear the “materially misrepresents” hurdle set in Section 512, adding consideration of fair use.  Previously, it could have been possible for copyright holders to more recklessly send takedown notices to service providers, and make a credible claim that they were not active in misrepresenting since a limited (and undefined) amount of care was given to the process.  With the addition of fair use, the burden is higher, which I will argue is beneficial to the takedown process.  Despite the judge’s assurances that adding a fair use component will not add a tremendous amount of complexity to the process, it will also be worth mentioning how many people disagree with this claim, believing that the four factor test for determining fair use is inherently nebulous and difficult to use.

In early 2007, Stephanie Lenz recorded a video of her children dancing to the song “Let’s Go Crazy” recorded by Prince. She uploaded the recording to Youtube and, roughly three months later, received a takedown notice from Youtube notifying her that the video infringed on a copyright held by Universal Music. Lenz issued a complaint stating that the video was actually a Fair Use of Prince’s music and should therefore be put back onto Youtube. She said her video was not taken down based “on a particular characteristic of the video or any good-faith belief that it actually infringed a copyright,” but rather Prince’s personal desire to control all of his work. The plaintiffs in this case accept that the video includes elements that are under copyright by Prince and Universal. Their argument is whether or not the Digital Millennium Copyright Act “requires a copyright owner to consider the fair use doctrine in formulating a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The judge in this case noted that no other court case has actually determined the merits of whether the phrase quoted above pertains to Fair Use. The judge determined that, despite no previous ruling, Fair Use is not an infringement of copyright and is a lawful use of the copyright. The court thus ordered that a brief review of potentially infringing material must be completed by content owners prior to sending a Takedown notice, to ensure whether it is a Fair Use.

This decision strengthens my paper’s argument that many potentially infringing videos on Youtube may, in fact, be examples of Fair Use. While only a small percentage of songs available on file sharing websites could be constituted as Fair Use due to the skill required to sufficiently transform songs, many videos on Youtube may be shielded from unwarranted takedown notices because of this ruling, due to the fact that transforming and mashing video clips is much easier than transforming songs. The complaint that a large portion of Youtube’s videos are copyright infringing and that Youtube encourages such videos is thus proven false. In reality, many of these “infringing” videos actually make up the user-generated content that embodies the spirit of Youtube: a community of Web 2.0 users producing unique and individual content to share with others.  Had this decision not been made, unchecked takedown notices could have harmed time-sensitive and important videos that were actually examples of Fair Use. While Universal argued that this checking for Fair Use is an unnecessary waste of time, the Judge was quick to point out that the Copyright Act of 1976 established 4 simple, quick factors for determining Fair Use. This decision upholds the hard work of individuals who successfully transform copyrighted material, and it prevents large corporations and recording artists from overreaching their bounds by unfairly removing Fair Use videos. Youtube’s legitimacy as a website made up of a majority of unique material is thus upheld.

In this article, Neil Turkewitz attacks figures such as Lawrence Lessig, who argue that copyright is a "special interest" and therefore hurts the public interest. Turkewitz claims that the belief that "the public's interest should triumph over the private" serves as "moral comfort" for those who steal intellectual property. In such an argument, Turkewitz interprets the opposing side's definition of the public interest as the ability to easily and cheaply appropriate copyrighted material. He corrects this misinterpretation and claims that the public actually has a primary interest in ensuring the production and distribution of copyrighted works so that such accessible works can even exist. According to this article, copyright protection is how we serve this public interest. Copyright protection furthers the public interest by ensuring the "promotion and development of the arts and sciences." Turkewitz does admit, however, that the system can be abused, although at present, it is the most effective system for "fostering creativity and democratizing cultural production and access thereto." Further, Turkewitz raises the issue of fair use as a protection against copyright laws infringing upon the First Amendment's right to free speech. He agrees that there must be limits of copyright to ensure protection of the First Amendment, but he argues that making unauthorized copies of copyrighted materials merely for personal use is not an extension of fair use and in no way involves free speech or the public interest. According to this article, implementing fair use as a defence against copyright infringment does not do anything to further protect the First Amendment or benefit the public interest.

This article directly relates to the issue of copyright and its impact on serving the public interest. Turkewitz's view directly combats Lessig's view in "Copyright and Politics Don't Mix," in that Turkewitz sees copyright as helping the public interest while Lessig sees it as a harm. The problem, however, is that they may be using dissimilar definitions of "public interest." Lessig argues that the public is entitled to read about, listen to, etc. information regarding governmental affairs and, thus, restricting such information because of copyright is detrimental to the public interest. On the other hand, Turkewitz argues that the public is entitled to access creative works, but that copyright protection ensures the development of such works and thus is necessary to ensure such access. While Turkewitz directly refutes Lessig's opinions, it seems as though he is refuting an opinion in a different realm of the public interest. The article, however, reveals another side to the debate of whether copyright serves the public interest.

The ACLU blog fights for online service providers and content owners to safeguard free speech, as record amounts of individuals are using the "publically accessive but privately owned" arenas to discuss matters of governmental and political importance. The public, then, relies on service providers etc. to protect such free speech, which lately has been threatened for violating a site's terms of use or infringing copyright. The blog lists recent examples, such as YouTube's removal of a video about John McCain that used images necessary for commentary on the canditates support of the war in Iraq. The blog implies that such a video is fair use and as political commentary it should be permitted, but the video was taken down regardless. The authors of the entry, Nicole Ozer and Corynne McSherry, of the Electronic Frontier Foundation (EFF), push content owners and providers to assess whether such speech is fair use before "pulling the plug on political speech." Further, they acknowledge that those who wish to restrict others' free speech can instead exercise their own constitutional rights and respond with more free speech, thus serving the democratic process.

This post in the ACLU blog supports the notion that, at least in some circumstances, copyright protection can hurt the public interest. The constitution protects free speech, and exercising this right in the political realm is certainly protected. To suppress this right hurts not only the First Amendment, but also the public interest. By censoring political speech and opinions, copyright protection does not foster a fully free election in which, throughout the campaign, the public has appropriate access to information necessary to make a decision on who to elect and what policies are best. The policies and the people making them are crucial to the interests on the country, hence the public interest, and, according to this argument, copyright does not serve the public interest by restricting individuals' First Amendment rights.

Chapter 1 of the Copyright Law deals with the subject matter and scope of copyright. Specifically, Section 102 addresses what constitutes copyrightable works. In general, copyright law protects "original works of authorship fixed in a tangible medium of expression." This includes, for example, literary works, sound recordings, dramatic works, and others. Section 105 addresses United States Government works and their ineligibility for copyright protection. Simply stated, any work produced by the government cannot be protected by copyright law. Finally, Section 107 discusses fair use as a limit on exclusive rights. The fair use doctrine states that copying "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." To determine whether such copying is actually fair use, four factors must be analyzed:

1. The purpose and character of the use (commercial or nonprofit education purposes?)

2. The nature of the copyrighted work.

3. The amount and substantiality of the portion used relative to the whole copyrighted work.

4. The effect of the use on the market for the copyrighted work.

Each of these sections is pertinent to the role of copyright in serving the public interest. First, the fact that copyright law protects original works of authorship suggests that, besides fair use exceptions, any work that meets the criteria for protection deserves such protection regardless of its impact on the public interest. However, Section 105 acknowledges that government works do not get copyright protection. The language does not specify the reason behind such a particularity, but it can be inferred that governmental works are of public interest, and the people deserve access to them. This section of United States Copyright Law suggests that copyright is intended to serve the public interest and although it should protect authors' originality to encourage progress and development, those concerns are trumped by concerns of the public interest when it comes to state and government affairs. Finally, the far use doctrine specifically says that news reporting is an exemption of fair use, provided that the instance is analyzed in terms of the four factors and still deemed to be exempted from copyright infringment. News reports tend to transform the original work for the purpose of delivering information to the public, a non commercial purpose, and they most often only use enough footage, language, etc. to properly convey such information. Being of a different purpose, reports do not tend to effect the market for the copyrighted work. Thus, the use of copyrighted works for the purpose of reporting news serves the public interest and is acknowledged by copyright law to be exempt. It can also be argued that campaigns and political speech fall under the category of news reporting since such speech relays information to the public for the purpose of democratically participating in government and state affairs. It seems that the public interest is intrinsically incorporated into copyright law, thus supporting the side of the argument that holds that copyright helps the public interest.

This is the opinion of District Judge Wyatt in the case regarding Abraham Zapruder's film of President John F. Kennedy's assasination. Zapruder happend to catch the event on film and later sold it to "Life," a publishing of Time, Inc. Stills from the video were then printed in several issues of the magazine. The defendant, Thompson, wrote a book, Six Seconds in Dallas, in which he "sketches" some of these still pictures. Random House, Inc. then distributed this book the the public as "a serious, thoughtful and impressive analysis of the evidence." The plaintiffs complained that the sketches were stolen from Life by Thompson, and "that the conduct of defendants is an infringement of statutory copyrights, an unfair trade practice, and unfair competition." The defendants argued that the pictures were just records of what took place and that news cannot be subject to copyright infringement. Wyatt's opinion notes that the defendants were correct in this assertion, as their cited cases (National Tel. News Co. v Western Union and International News Services v. Associated Press) hold that news cannot be copyrighted. Wyatt does argue, however, that the facts of such news of Kennedy's assasination are not copyrighted, but the depiction of them is. Wyatt writes that "there is thus an infringement by defendants unless the use of the copyrighted material in the Book is a fair use outside the limits of copyright protection." This analysis is in favor of the defendants because "there is a public interest in having the fullest information available on the murder of President Kennedy." Thompson's copies in his book make his theory about this incident easier to understand. The book is bought to understand the Kennedy murder, not to see the stills from the Zapruder film, and thus there is little injury to Life or Time, Inc. from use of such images and the market is not injured. Therefore, the defendant and plaintiff are not in competition, and the copying by the defendants was fair and reasonable. There is not a ruling on copyright infringment because the copying is fair use, and Wyatt rules in favor of the defendants.

The opinion affirms that the public interest is of great value, and claims to copyright infringment will be denied if they stifle information that serves the public interest. As Wyatt wrote, "there is a public interest in having the fullest information available on the murder of President Kenney," which implies that as a state matter, the public deserves to know information about governmental affairs and copyright protection cannot stop that information from being divulged. The court in this case supported the implementation of a fair use defense to broaden protection of the public interest against copyright law. This decision falls in line with opinions like that of Lessig, who believes that protecting public interest (be it politics in his article or information about the president in this case) trumps protecting a copyright owner's economic incentives.

TIME INCORPORATED, Plaintiff, v. BERNARD GEIS ASSOCIATES, Bernard Geis, Josiah Thompson, and Random House, Inc., Defendants
No. 67 Civ. 4736
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
293 F. Supp. 130; 1968 U.S. Dist. LEXIS 12385; 159 U.S.P.Q. (BNA) 663

September 24, 1968

A major precursor to the "Code of Best Practices for Fair Use in Media Literacy Education," this investigation was used as the basis for the Center for Social Media at American University and the Media Education Lab at Temple University's understanding of the copyright confusion circulating within educational settings and there release of the "Code" to try and alleviate some of this confusion.  Unlike other sources I plan to use, which approach the issue of copyright confusion and the importance of diminishing it from a relatively theoretical standpoint, this investigation presents the issue on the basis of evidence collected in dozens of interviews conducted with both teachers and makers of media literacy curriculums. 

This investigations not only explains the types of confusion these educators have over copyright law, but also where that confusion seems to stem from.  It also explains the unnecessary ways that teachers have learned to cope with their anxieties over this confusion, which is normally to quietly defy copyright laws in the classroom and "take risks in the name of education" or to "hyper-comply" with the copyright law; in both these instances the teacher is restricted by one risk or another, and this exemplifies the importance of proper education about the issues of copyright law and the scope of fair use.  Teachers should not have to "take risks" when it comes to delivering important information within the classroom. 

For the sake of my thesis I believe it is important to understand the root-causes of copyright confusion, because it is not enough to simply explain that this confusion exists.  This investigation will help to validate my own argument for the importance of properly understanding copyright law, because the number of interviews performed and amount of information collected proves that this is a problem existing across a broad spectrum of academic settings.

In this text, Rice outlines the contractual and technological regulations that have been placed on the access of digital information.  His argument is that information is the "common fiber of science, arts, hostory, culture, and even self," and that the press to privatize control over acces to digital information "diminishes the luster of the late-twentieth-and early-twenty-first-century opening of the information society." 

Specifically Rice focuses on the implications of the privatization of control over things such cultural knowledge, including folklore, legends, and information on heritage, in cases where this information would not be legally accessible to members of the represented culture.  Rice argues that the importance of the information era is the access one has to learn about the things most intimately related to him as a person.

I find this essay useful because, though it targets the wrongfulness of privatized control from a deeply personal level, the underlying question of whether all information should be accessible to everyone is also present, because within the academic arena researchers develop relationships with information that may have no relevance to their cultural backgrounds but remains as personal to them as if it did.  This essay also asks its reader to think about the kind of information he would not want to be withheld from him.  Though the essay doesn't specifically get at the issue of confusion over copyright and fair use issues within an academic setting, it does provide an awareness of what information may be being withheld from researchers, and forces those researchers to consider the usefulness of this kind of information to there personal projects.  This kind of awareness goes hand in hand with the understanding of fair use and copyright that my thesis argues for because it emphasizes the importance of having an active and correct knowledge of fair use and copyright issues that affect university settings, in order to get the most out of ones education.

This text supports my thesis in many of the same ways that other of my texts do.  However, my main interest in this text is what Crews argues is a "Trend toward Restrictions."  This concept explains the way in which, because many universities cannot confidently interpret fair use guidelines, especially with reference to the availability of software for students, many of them have taken to revising software policies that do little more than completely restrict the making of copies and threaten liability.  University software policies condemn "illegal copying" or "unauthorized copying" often with warnings that read soemthing like "Unauthorized copying of of commercial software is a form of theft."  However, what these policies do not do is highlight the needs of the users, or explain what copying is legal or within fair use; and from this many academic community members go without crucial educational tools for fear of being sued.

Crews argues that by not developing a clearer system of outlining policies, universities ultimately ignore the preservation of their users' rights, instead forfeiting them altogether.  This notion supports my own argument as well, because it exemplifies the necessity of university educators (including librarians) to help researchers understand what they can do.  Researchers have the right to fully access their university services to their fullest extent.  It is the university's job then to make itself as accessible as possible.  Educating students about fair use and copyright is a crucial part of this accessibility.

A general explanation of the issues and history surrounding copyright law and library services, this text also summarizes pending issues of copyright and the importance of having them dealt with.  Many of the resources already circulating as guides for the legal use of copyrighted works for librarians and other educators are geared specifically toward face-to-face educational experiences, such as classroom settings.  Even instances in which rules for online or other electronic reproductions of copyrighted works are outlined, there still seems to be a great deal of confusion about where distance education fits into these guidelines.  For this reason the DMCA has suggested that the Copyright Office amend the the Copyright Act to more clearly define what constitutes a "classroom."

Other issues that are still pending include the question of whether producers of databases, which arrange lists of facts in an alphabetical or other standard form, should get added protection against laws which require "compilations" to be original both in the sense that they are not copied and that they possess some "quantum of creativity."  Warwick, here, points out the importance of researchers and educators to be aware of their rights, so that we are able to continue to ensure that facts will never become protected under copyright laws.  This notion helps further my argument about the importance of educators and researchers understanding their rights as well.  The essay also will help me to contextualize the major issues of copyright law as they refer to library services, which I believe will help elucidate where much of the current confusion about copyright law within the academic arena stems from.  The issue of database protection also brings up interesting questions about the necessity of the Copyright Office to develop laws or guidelines for all aspects of educational services or if many of these aspects should be left to interpretations of fair use.

This letter, posted on a website that monitors the “legal climate” on the internet, contains a cease-and-desist order to a Texas fan fiction website manager responsible for displaying adult fan fiction based on the Harry Potter series on her website. The law firm that issued the order, Theodore Goddard, represents Christopher Little Literary Agency and J.K. Rowling, the author of the Harry Potter novels books. The attorney who writes the letter explains that the sexually explicit fan fiction, which posted on the site in question has concerned (i.e., distressed) clients Rowling and Warner Brothers (the studio behind the Harry Potter films), who wish to preserve the integrity of the Harry Potter franchise. While the firm acknowledges that “innocent” fan fiction does not upset Rowling and Warner Brothers, the sexual material on the website in question threatens the integrity of the Harry Potter brand and could quite easily be accessed by children, especially given the Harry Potter's popularity among youth. The attorney requests that the material in question be removed from the internet and not be disseminated in any other way.

This letter significantly complicates the argument that fan based creative activities do not harm underlying work. Here, works of fan fiction with erotic themes are seen as a threat to the integrity of the work that they are based on. Illicit fan fiction's potential to tarnish the reputation of original work could harm the market of underlying work and could thus disqualify fan fiction from fair use protection. This consideration must therefore be reflected in arguments that attempt to defend fan fiction, particularly by those who wish to legally commercialize it. If anything, the existence of illicit, market-harming fan fiction—with no aims of legitimate parody—proves that a generalized, sweeping concession allowing fan fiction is inappropriate. Rather, fan fiction writers must individually decide whether to consider their work fair use; in the meantime, cease and desist letters such as these will continue to make up many writers' minds for them.

During the revision process that lead to the Copyright Act of 1976, the photocopier had become the biggest technological threat of the time.  The addition of photocopying services to many libraries made publishers afraid that, instead of renewing many of their periodical subscriptions, libraries would begin servicing their users by interlibrary loans exclusively.  To help mediate this situation between publishers, authors, printers, educators, and librarians the Commission on New Technological Uses of Copyrighted Works (CONTU), was given the job of developing a set of guidelines for the minimum amount that one could copy without becoming liable for suit for copyright infringement.

This report is important because the guidelines still pertain to today.  Photocopiers still play a hugely important role in library services.  They are used to make PDF files out of texts, which are then put into online educational sites, such as blackboard. They can also be scanned and turned into Word documents, which can be edited and reorganized.  The multitude of things one can do with photocopies now is a seperate legal issue.  However, the first step in doing any of these things is knowing what you are and are not allowed to reproduce in the first place.

Libraries, museums, and archives : legal issues and ethical challenges in the new information era / edited by Tomas A. Lipinski.  0810840855 (hbk. : alk. paper) series Lanham, Md. : Scarecrow Press, 2002.

This essay provides an explanation of the problem of section 108 of the U.S. Copyright Act, which does not clearly define what technology is allowed in the reproduction of copyrighted materials.  This problem has proven to confound many librarians who continue to wonder if technology that did not exist at the time of the section's revision is included under the seemingly "technologically nuetral" language of 108's subsections.  Furthermore, 108 seems only to allow the use of digital formatting in the case of preserving copyrighted materials, but not distributing them.  This has caused greater confusion, especially with regards to services such as interlibrary loan, in which case the digital format is most easily sent via e-mail, a service which would make it possible for the material to be printed and thus owned by another library or patron.

No specific argument is layed out in this article.  However, the authors do elucidate the ways in which section 108 can be understood and utilized in regards to reproduction and without resulting negative consequences.  These explanations are important because the law will never be as quick as it needs to be to adapt to the technological advances happening all the time.  This essay supports my own thesis, because it emphasizes the importance of understanding copyright law whether you are a researcher or an educator (including librarians).  In order to take full advantage of the resources that exist for education, one must fully understand his rights to that information.

United States Copyright Office.  The Digital Millenium Copyright Act of 1998: U.S. Copyright Office Summary.  United States Copyright Office.  28 November 2006. .

This is a summary of the Digital Millenium Copyright Act, created by the Copyright Office. It renders the more technical language and organization of the law itself into a much more straightforward form. It definitely says something about the polarizing nature of the DMCA that the only article which I have come across without a very strong, clear viewpoint of the subject is a pure summary; as could be expected, the Copyright Office is attempting to maintain an objective viewpoint, to whatever degree possible.

The DMCA was created as a way in which copyright law could be adapted to the questions raised by digital technologies. The most controversial section of the DMCA added a Chapter 12 to Title 17 of the United States Code; this section contains the much-talked-about "anticircumvention provisions", criminalizing any attempt to break through digital copy protection (CSS encryption on DVDs, etc.). Another section of law removes any liability for online copyright violations from online service providers as long as they adhere to certain broad guidelines. There is also the possibility of application for exemptions from the DMCA for non-infringing uses which require circumvention of encryption.

My project requires a detailed knowledge of the provisions of the DMCA itself; I not only plan to quote directly from the DMCA in my project, but also to use clips appropriated from DVDs to create the project. This summary of the law is one of the most simple and concise descriptions of its provisions, without much color in the form of personal opinions.

In this article Nathaniel Noda discusses fan-based creative activities and their relationship to the copyrighted works that they draw from. He focuses specifically on the practices of “fan subbing” and “dojinshi,” but emphasizes the application of his findings to other derivative creative efforts (or “fan-based activities”), including the writing of fan fiction. Fan subbing, or the fan-based copying, translation, and circulation of Japanese cartoons, has been considered a key factor in popularizing Japanese animation in the west. Dojinshi, the fan-made and fan-sold cartoons that reuse characters from mainstream commercial manga, has proven to promote its underlying work and cultivate new artists for the professional manga industry. Both practices are technically illegal, but have been allowed due to their admitted benefits to the industry and, perhaps to a lesser degree, their ensconced position in our culture. Noda goes beyond other scholarly fan-related essays by arguing that the tacit agreement affording these fan-based activities is not enough, and that American fair use doctrine should be refined to acknowledge and protect the public benefits and incentives for authorship that fan-based activities provide. First he develops a formal definition for “fans” and uses it to form the two criteria for determining something as a “fan-based activity:” the activity complements the underlying work, but does not compete with it; secondly, a fan-based activity promotes the economic and creative incentives of the copyright holder whose work they are fans of. Noda then proposes that two changes be made in the traditional judicial interpretation of fair use to accommodate these innovative, arts/progress-promoting works. First, he posits that the first factor of fair use be refined so as to distinguish whether a work’s purpose is competitive or complementary. This, he suggests, would better align fair use analysis with the original aims of copyright law, and weaken the “commercial vs. noncommercial” distinction that never acknowledged that a commercial, complementary work (like these fan-based works) could actually, in some cases, benefit the author. Secondly, he offers that the fourth factor be applied to also evaluate a work’s benefit to the potential market of the underlying work. This is a much more nuanced, balanced evaluation of a work’s benefit to author and society than the traditional application of the fourth factor, which only looks for instances where a work could hurt an underlying work’s market.

Noda distinguishes himself from other fan culture scholars by urging that existing copyright law be revised to protect fan activities. He is also very specific, proposing criteria for deciding what constitutes fan activity and therein explaining why it is necessary to protect: it is innovative work that does not negatively affect underlying work. He then makes a compelling case for refining fair use evaluation, and is practical in suggesting how to implement it. Rather than attempting to force the change through legislative reform, an effort which would likely fail, Noda argues that the necessary change simply entails a refinement of interpretation at the judicial level. This is a departure from a number of other proposals, including suggestions that a dojinshi-like tacit agreement be attempted, or that publishers collaborate with fans to publish fan fiction anthologies. Because of its specificity and clarity, Jenkins's argument is the strongest one I have read for reforming and standardizing fan policy in entertainment businesses.

This article focuses on the practice of literary rewriting, where characters and plots of existing literature are developed into new works. It defends the recent body of literary rewrites as a genre unto itself, but warns that its practice is threatened by oversimplified copyright doctrine. The author first discusses 3 modern literary theories that complicate notions of originality and in doing so challenge copyright's authority to bar rewriting. The ideas of “the death of the author,” “the anxiety of influence,” and “marginality” in literature destabilize the concept of authorship and suggest that rewriting is a necessary method for creating new, valid works. It cites Alice Randall's The Wind Done Gone as a rewrite of Gone with the Wind which acts on the literary theory of marginality by giving a voice to slaves from the world of the original novel. The novel's allowance as parody, however, is an oversimplification of its nuanced commentary. This parody-based fair use qualification ends up limiting works of rewriting that don't necessarily criticize underlying work, but take new perspectives and shed new light upon it. The article further argues that rewriting always occurs in respect to significant “canon” work. The existence of literary rewriting simply identifies works that have been already been rewarded with success; it does not inhibit innovation or bar progress.

This article is significant for its support of rewriting as a valid means of expression that propagates new ideas, rather than opposing it as a lazy practice that inhibits innovation. Although rewritten work does not always parody underlying work, it is innovative because it offers new and original (to the extent that the word may be used) perspectives on older works. Furthermore, rewriting tends to identify original works by copying only those works that are considered significant, or “canon,” enough to be worth updating. The article does not refer to Japanese dojinshi. However, a similar understanding of rewriting appears to guide the response to dojinshi in Japan, where original characters are rewritten into new situations or altered in a way that changes our understanding of original work.  The idea that work can be fair use without being parody has become a major theme in my research and supports the argument that certain types of creative fan endeavors should be protected as fair use.

United States Copyright Office.  The Digital Millenium Copyright Act of 1998: U.S. Copyright Office Summary.  United States Copyright Office.  28 November 2006. .

This is a summary of the Digital Millenium Copyright Act, created by the Copyright Office. It renders the more technical language and organization of the law itself into a much more straightforward form. It definitely says something about the polarizing nature of the DMCA that the only article which I have come across without a very strong, clear viewpoint of the subject is a pure summary; as could be expected, the Copyright Office is attempting to maintain an objective viewpoint, to whatever degree possible.

The DMCA was created as a way in which copyright law could be adapted to the questions raised by digital technologies. The most controversial section of the DMCA added a Chapter 12 to Title 17 of the United States Code; this section contains the much-talked-about "anticircumvention provisions", criminalizing any attempt to break through digital copy protection (CSS encryption on DVDs, etc.). Another section of law removes any liability for online copyright violations from online service providers as long as they adhere to certain broad guidelines. There is also the possibility of application for exemptions from the DMCA for non-infringing uses which require circumvention of encryption.

My project requires a detailed knowledge of the provisions of the DMCA itself; I not only plan to quote directly from the DMCA in my project, but also to use clips appropriated from DVDs to create the project. This summary of the law is one of the most simple and concise descriptions of its provisions, without much color in the form of personal opinions.

"Code of Best Practices in Fair Use for Media-Literacy Education." from American University's Center for Social Media

Section of a blog by a collage artist on the legal ins and outs of copyright law as it applies to collage. Definitely a good jumping-off point.

Interesting analysis of how the courts applied fair use to the Harry Potter Lexicon case.   This was not just a case of the deep pockets winning.   The details of the ruling show it as a win for fair use.  

Author Fred von Lohmann discusses the role of the 'gatekepers' (such as exhibitors, insurers, distributors, and broadcasters) when filmmakers may have to clear copyright uses in their own works. While fair use is supposed to protect the transformative uses of copyrighted materials, many gatekeepers and large broadcasters and studios are failing to honor the principles of fair use. Instead, we are seeing more of what von Lohmann calls a 'clearance culture' in which full expression is stifled at the hands of media gatekeepers. The content controllers are requiring clearances for every instance of copyrighted material in films, even if it falls under fair use. This is causing many films either to be abondoned during production or distribution or for filmmakers budgets to be severely drained by obtaining clearances. In terms of relevance to my own project, the role of the gatekeepers helps to explain why the full potential of online film distribution has not yet been explored. Although this article focuses mostly on fair use and copyright clearance, when I read this article it made perfect sense why some directors (such as the more established Edward Burns or the newcomer Madonna) reject the traditional distribution system for many different reasons, and choose to distribute through online platforms such as iTunes.

The rise of internet distribution offers new outlets for filmmakers who can not afford the traditional methods of distribution. von Lohmann identifies two distribution options: video hosting sites such as YouTube or Yahoo Video that can get your film to an audience for free and immediately, as well as by purchasing bandwidth from an ISP and running your film online via a filmmakers' own server.

Internet gatekeepers such as a YouTube or an ISP are more lax than traditional ones due to the safe harbor provisions of the DMCA. In the case of online video content sites, they use a 'notice and takedown' policy to enforce copyright infringement violations. In order for a video hosting site to be free from monetary damages incurred through a copyright infringing video posted by a site user, the host must issue notice to the user that the content requires them to takedown their video, followed by a 'counternotice' option for the user's benefit in the event that a user wants to challenge the takedown. So long as the site removes the copyrighted content in a timely manner and follows this procedure, they will remain exempt from prosecution.

If a filmmaker decides to host his own video by buying a service from an ISP, a similar safe harbor under the DMCA protects the ISP's from any possibly copyright lawsuit. Under this provision, ISP's are not required to follow the 'notice and takedown, counternotice' steps as outlined above. They are viewed as only the 'pipe' in providing access, not an entity that can enforce the content present on computers owned by others and therefore out of its control. As in video content sites, ISP's do not act as middlemen in any copyright lawsuits, therefore leaving the filmmakers or other users to work out their own disputes with copyright owners directly. 

Perfect 10 v. Google, Inc. Order by United States District Court of California. February 2006.

In August 2005, Perfect 10 sued Google and Amazon for displaying thumb nail images. Perfect 10, an adult photography company, makes money by selling rights to copyrighted material. Perfect 10 sought an injunction and compensation from Google on the grounds that Google was illegally displaying thumbnail images of copyrighted Perfect 10 photos and linking to third party sites that further illegally host copyrighted materials. Google asserts that it does not infringe directly because it does not create the image that the image search pulls up and displays.

The court issued a preliminary injunction ruling that the thumbnail images from a Google image search did constitute copyright infringement, but the links provided to the full images did not. Google admitted that it created and stored the thumbnail images on its own servers. Thus, as to the thumbnails, Google distributed infringing copies of Perfect 10’s images. The links to the full size photographs do not involve any creation or dissemination even though there is a local browser caching. This local browser caching constitutes fair use. The court found that the use of the thumbnails was not fair use since Google made money from their creation and the thumbnails were not transformative because P10 also licenses thumbnail images. Thus, users could circumvent P10’s licenses by downloading the free thumbnails. The Court did note that Google does “provide great value to the public” as a search engine, stating that “search engines have become essential sources of vital information for individuals, government, non-profits and businesses….” Ultimately, Google’s thumbnail images did economically harm the value of the P10 images. Thus, the Court enjoined Google from further dissemination of the thumbnail images. In the case of AFP, Google must clearly not host and serve the image. However, the act of organizing the web and making news more readily available to users, perhaps even with leads and headlines seems reasonable.

Belgian Court Order in Copiepresse Litigation in Belgium. 8 September, 2006.

In September 2006, a Belgian Court ordered in response to a suit for copyright infringement brought by Belgium copyright firm Copiepresse that Google had no right to publish online properties represented by Copiepresse. Copiepresse based its suit on the Belgium copyright laws of 1994 and 2005 and the database law of 1998. Google did not appear at the hearing. Further proceedings were scheduled for a later date.

Google News, according to the Belgiam Court, receives search terms from users and returns automated results that ignore whether or not the news item returned is protected by copyright. As a result, the Belgium Court treated Google News as providing news content, not acting merely as a search engine. The Court held that Google News’s use of the copyrighted materials is illegal under the copyright law and database law. Moreover, Google’s caching is reprehensible and literally causing news agencies to “lose control of their web sites and their contents.” In caching websites, according to the Court, Google leverages its massive infrastructure to essentially create a local copy of the Internet. Consequently, if a newspaper publisher pulls an article off the Internet or charges for access to article archives, Google News users might still be able to see the article free of charge through a cached link. The caching process evades the newspaper publisher’s right to control its copyrighted materials.

Ultimately the Court ruled that Google News caused great financial loss to Copiepresse and would cause great harm to news services across Europe. The Court ordered Google to withdraw the cached articles, not to reference any of the five entities Copiepresse represented at all, to post the Court Order on Google Belgium and Google Belgium News, and that if Google did not comply with the Court Order to incur damages of $1 million euros a day.

While this Order addresses the effect of Google News under Belgium law, the case does not address United States copyright law raised in the AFP litigation. Fundamentally, though, this decision and lawsuit raises the question of whether Google News properly should be viewed as a search engine that organizes news or a source of news and whether Google News may be legitimately lawful under the law of one country but not under the law of another country.

**Update: Google appears headed to a settlement with Copiepresse. Neither side has provided the financial details of the agreement. On November 28, the Copiepresse secretary general stated, "The Internet is not the Wild West…We want to be part of Google, but not without control over our content.'' For its part, Google commented that without Copiepresse content, their Belgian news coverage was lacking and insufficient.

Despite the predictions that the Internet would be tool of consensus for the world’s countries, applicable law continue to vary from nation to nation, luckily without impeding the growth of the Internet. Internet traffic, specifically ecommerce and media continue to thrive despite the application of local laws (148). Content providers have adapted to the wants and needs of local users across a variety of cultures and continents (149). There is no concept of universal free speech on the internet – what one country may consider as blasphemy might be the most treasured item of another country (150).

More relevantly, Goldsmith and Wu discuss how a court ruling in one country can be enforced in and intersect with the laws of another country. Using the example of Gutnick v. Dow Jones, in which business man Joseph Gutnick sued Baron’s online magazine, a subsidiary of Dow Jones, for defamation in an Australian court, the authors demonstrate that local law can coexist with the international scope of the Internet. While Gutnick won its defamation lawsuit against Dow Jones in Australia, it did not stop Dow Jones from continuing to have an Internet presence. The decision is not unlike any other decision that impacts a “multinational” business (157). Large corporations that have financial interests across the world like Dow Jones, Google and Yahoo! must be ready to defend their online content and business against the laws of any jurisdiction.

The Internet is not free of regulation just because it does not have the physical tentacles that other aspects of multinational companies do. For example, by operating Google.be and Google.fr, Google has a financial interest and presence in Belgium and France. They must be prepared to either pull their content out of those countries or comply with the laws of these jurisdictions, even if it undermines principles of American law. It is simply the cost of doing business. Smaller companies who have an Internet presence that may reach these same countries but who have no financial assets there will be in a different situation. They will need only to comply with the law of the country where their assets and physical presence can be found. Thus, the copyright law that applies on the Internet is not likely to be uniform but is more likely to reflect the public policies and interests of the local jurisdiction deciding the copyright question.

CAMPBELL v. ACUFF-ROSE MUSIC, INC (1994)

Acuff-Rose Music, Inc. filed lawsuit against the members of the rap music group 2 Live Crew and their record company, claiming that 2 Live Crew's song, "Pretty Woman," infringed Acuff-Rose's copyright in Roy Orbison's rock ballad, "Oh Pretty Woman."  The District Court had ruled that 2 Live Crew’s song was a parody of the original; however, appeals reversed and remanded, holding that the commercial nature of the parody rendered it presumptively unfair for the purpose of the parody (first factor of the fair use doctrine), that by taking the "heart" of the original and making it the "heart" of a new work, 2 Live Crew had taken too much (third factor), and that market harm for (fourth factor) had been established by a presumption attaching to commercial uses.  The courts decided that the song fell into the proper categories of fair use, detailing the four different aspects of fair use and how the song accomplishes each of them.  2 Live Crew’s version was transformative and would not harm the reputation or financial gain of the original work.  The final decision of Campbell v. Acuff-Rose, ruling the work as parody and therefore satisfying fair use judgment, leads me to believe that my transformation of the South Park’s narrative through film clips will be considered fair use and a parody of the original work.

“Parody: Fair Use or Copyright Infringement” – Lloyd L. Rich

Rich begins his article by defining parody as the imitation of a serious piece of work, such as literature, music or artwork, for a comical effect. Parody, as a method of criticism, has been a very popular means to communicate a particular message or point of view to the public, and thus must inevitably use another creative work, creating an inherent conflict between the parodied and the creator of the parody. Rich cites Copyright Act in Section 107 as enumerating four fair use factors that should be analyzed when determining whether a particular use of a copyrighted work is considered fair use: the purpose and character of the use (whether commercially motivated or nonprofit educational), the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work, the effect of the use upon the potential market for or value of the copyrighted work. Rich states that a court takes into consideration each of the four factors when evaluating fair use defense, and that no single factor by itself is sufficient to prove or disprove fair use. In creating a parody, we all must take into account each of the fair use factors:

1) educational purpose for a class assignment, noncommercial, hopefully transformative and giving new meaning to the narrative

2) nature of copyrighted work is creative and for entertainment, published and open to the public

3) only a few clips from a few episodes will be used, copyrighted work will not be copied in its entirety

4) parody will not attempt to substitute or compete with the show itself as they are in different markets (mashup vs. TV show), and if anything, will stimulate interest to the audience

After defining the terms of use for my project, I believe my video mashup falls under fair use terms.

Rogers V Koons. No. 234, 388 and 235. United States Court of Appeals, Second Circuit. 2 Apr. 1992.

This is the 2nd Circuit's appellate ruling on Rogers v Koons. The introduction states that the "key" to the suit "brought by a plaintiff photographer against a defendant sculptor and the gallery representing him, is defendants' borrowing of plaintiff's expression of a typical American scene — a smiling husband and wife holding a litter of charming puppies." It calls the copying deliberate goes on to give the background facts of the case. It first describes Rogers' work and reputation, followed by an account of how the "Puppies" photograph was created. It then does the same for Koons and the creation of "String of Puppies." It goes back over the "prior proceedings," giving the history of litigation between the two parties and affirms the district court initial ruling.

Moving on to the discussion section, the court eleaborates on the ownership of copyright in an original work of art, which Rogers has, discusses unauthorized copying by defendant, which Koons is held guilty of, and defines the fair use doctrine. It then enumerates the four criteria required to satisfactorily pass as fair use. Under the Purpose and Character of Use criterion, the court says, "Relevant to this issue is Koons' conduct, especially his action in tearing the copyright mark off of a Rogers notecard prior to sending it to the Italian artisans. This action suggests bad faith in defendant's use of plaintiff's work, and militates against a finding of fair use." Essentially, they are saying that he was underhanded about his method of copying. As far as Parody or Satire as Fair Use is concerned, the court says "that even given that "String of Puppies" is a satirical critique of our materialistic society, it is difficult to discern any parody of the photograph "Puppies" itself." They argue that Koons was motivated more by profit than satire. The court also holds that Koons copied far more of Puppies than necessary to convey his point. "Koons went well beyond the factual subject matter of the photograph to incorporate the very expression of the work created by Rogers," says the court. Lastly, the court orders that the effect of the use on the market value of the original has been harmed, and "there is simply nothing in the record to support a view that Koons produced "String of Puppies" for anything other than sale as high-priced art. Hence, the likelihood of future harm to Rogers' photograph is presumed, and plaintiff's market for his work has been prejudiced."

Blanch V Koons. No. 05-6433-Cv. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. 26 Oct. 2006.

This is the judgment on the appeal for the Koons v Blanch case with the opinion of Judge Sack. The appeals court rules that Koons’ work was indeed a fair use. Koons was commissioned by the Deutsche Bank and Guggenheim Foundation to create a painting, “Niagra” in which he used Blanch’s “Silk Sandals by Gucci” ad. The court gives background on Koons’ life and work, saying that he is “known for incorporating into his artwork objects and images taken from popular media and consumer advertising, a practice that has been referred to as "neo-Pop art" or (perhaps unfortunately in a legal context) "appropriation art."” It describes both Koons’ painting and Blanch’s photograph and Koons’ use of the photograph in his painting. The two artists’ economic gains and losses are then detailed: Niagra has been appraised at $1 million, while Blanch was paid $750 for her work.

In meeting the criteria for fair use, the court finds Koons’ work transformative, saying it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." The court ignores the effect of commercial use because Blanch admits that Koons’ work did nothing to detract from any financial gains Silk Sandals brought her. It does, they say, meet the requirement for parody: “Koons's use of a slick fashion photograph enables him to satirize life as it appears when seen through the prism of slick fashion photography.” Bad faith is cited as the last criteria of fair use. Here the ruling holds that Koons only exhibited bad faith in not first asking Blanch’s permission to use her photo. What I wonder, though, is whether than would have made any difference to her. The other major reason that Koons’ work is said to be acceptable is that he uses only a portion of Blanch’s image, and places that portion with other elements that are not part of her photo, thereby substantially transforming it. In conclusion, the court rules "promoting the Progress of Science and useful Arts," U.S. Const., art. I, § 8, cl. 8, would be better served by allowing Koons's use of "Silk Sandals" than by preventing it.”

"Koons Affirmed (Don't Blanch)." The Patry Copyright Blog. 26 Oct. 2006. 28 Nov. 2006 <http://williampatry.blogspot.com/2006/10/koons-affirmed-dont-blanch.html>.

 
This article is a guide to the Koons v Blanch ruling and takes us through the courts' decisions regarding the four criteria that constitute fair use step by step. Fundementally, he says, the case boils down to two points, that "Koons' use was highly transformative and the copyright owner suffered no harm to her market; the rest is window dressing." He summarizes the background of the case (Blanch paid $750 for original ad in Allure magazine, Koons incorperates exact image in his work "Niagra" in order to comment on the way popular images appeal to our most basic instincts and desires.)

Party thinks the majority's distinction between parody and satire is helpful and shows that "Koons had a genuine creative rationale for borrowing Blanch's image, rather than merely using it merely 'to get attention or to avoid the drudgery in working something fresh up.'" He also brings up the issue of bad faith, which has not been mentioned in the two other cases. I think this comes out of Blanch's claims that its pratically a matter of etiquette, she's been quoted as saying something along the lines of "if the artist is still alive, you should at least ask for permission to use their work." I am also interested in the comment posted in reply to this blog in which the author writes, "A major factor in the difference between Rogers and Blanch appears to be that the court found the use of the feet from the Blanch photograph transformative because they were recast in a different position and that the important background elements (man’s lap, aircraft cabin) were not copied. In other words, the Blanch photograph was used more as a reference than as the foundation for the painting."

"When is Parody Fair Use?" - Robert Posner 

A parody takes parts or aspects of another expressive work.  If that work is copyrighted, why isn’t the parodist an infringer?  Parody is considered ‘fair use’ under copyrighted law and is therefore considered lawful.  It takes from a piece of work but injects creativity into it—taking characters, incidents, dialogue, or other aspects and creates a new work.  The risk of infringement arises when the parodist extracts certain copyrighted elements of the original work—the parody is a derivative work and the copyright holder controls it.  However, the fair use doctrine stipulates, in economic terms, that when the “costs of transacting with the copyright owner over permission to use the copyrighted work would exceed the benefits of transacting,” the derivative work is considered fair use.  This includes economizing on other transactions and stimulating the production of intellectual property, e.g., arousing public interest through use of book reviews.  Parody is a form of limited criticism, may supply a part of demand for the original work, and does not always ridicule or criticize the original work.  It is different from a book review in that it does not introduce new material to the public; audience acquaintance with the work renders the need to steal much less.  Within terms of fair use, parody should use the parodied work as a target and not a weapon, should not take a large fraction of the original work so as to reproduce it entirely, and the relative minimum work taken will not redeem the infringement.   Often parodies achieve a common effect and not at the expense of the original work of art.  In relation to my project, I will create a parody of the popular show South Park by virtue of a video mashup, and we will see how this translates into fair use.

Greenberg, Lynne A. "THE ART OF APPROPRIATION: PUPPIES, PIRACY, AND POST-MODERNISM." Cardozo Arts & Entertainment Law Journal 11 (1992): 1.

Greenberg calls appropriation art a “wide-reaching trend which has arisen as a response to post-modernist criticism.” She says its reaction to the formalism and aesthetics of a media-saturated society. Most importantly, echoing Koons claims about the school of thought he belongs to, Greenberg says, “Aggressively and self-consciously derivative in its ideology, post-modernist art critiques the very attributes that copyright law uses to define art: namely, artistic creativity and originality.”

In the introduction, she says the article will focus on the challenges postmodernist art poses on copyright law and argues, like the Columbia Law Review editorial that visual art requires a different set of rules than other copyrightable entities. In the section of her piece about the infringement vulnerability of photography, and “its relationship to the originality requirement” she uses Rogers v. Koons to illustrate her point that we need a different way to interpret copyright as it interferes with the objectives of postmodern art. In her analysis of the case, Greenberg maintains that the court’s perspective is skewed because Koons’ work is so expensive. She says that although the court claims that Koons’ work has an economic impact on Rogers, “It seems farfetched to imagine that Koons's "high-priced" kitsch, sold in the elite world of the art gallery, could even tangentially affect the market for either Rogers's commissioned photographs or Rogers's postcards, sold predominantly in gift shops”. Basically, she concludes, the court ruled fairly according to current laws, this case shows that these doctrines are in need of revision in order to make allowances for appropriation art. “The recent decision of Rogers v. Koons simultaneously underscores the precarious position occupied by artists practicing radical appropriation strategies, and accentuates the consequences of so rigorously enforcing the limited monopoly rights granted by copyright law,” she explains.
 

As other sources indicate, Japanese anime and manga artists happily live with fan-made comics starring copyrighted characters (called dojinshi, or doujinshi). In fact, much of the talent and creativity within the industry can be attributed to artists starting out in the dojinshi field. But in Konami v. Spec Computer it is clear that such infringement is technically against Japanese law as much as it would be against American law (even more so, given this case's similarity to Nintendo v. Galoob). So it is not the law that dictates the products of Japanese fan-culture, but rather common opinion and recognition of the positive effects to come out of certain forms of infringement.

And yet, American copyright holders still try their best to limit what kinds of fan fiction can be easily found online, in hopes of keeping some control over the perception (or decency) of their brand. None have tried to actually take a sexually explicit fan fiction author to court for fear of alienating fans and setting the wrong precedent, but they have tried to quash such expression. And the more affinity towards the fanbase, the more the fans will be willing to censor themselves in order to please their benevolent masters (of the copyright).

On page 155 (chapter 4), Jenkins mentions "song videos" as a form of fan fiction. He talks about fan fiction here in contrast to the kind of fan productions LucasFilm endorses, which can only be parody-flavored or about the fans themselves. "Song videos" are often the kind of production preferred by female fans, who take the time to explore and develop certain relationships and themes that may or may not have been present in the original work. LucasFilm acts along the same lines as the law might approach various kinds of derivative works-though it is comfortable with parodies, anything that might be seen as "expanding upon" the original universe could technically be illegal derivative work and therefore to be avoided. The difference between monolithic character properties such as Harry Potter and Star Wars and an entire (niche) medium is also very important to note. Unlike the more specific fan cultures, the anime fan culture is both less mainstream (and therefore even more dependant on the loyal and active few) and unable to be corralled and manipulated by one corporate body. Since an entire genre of cinema and comics are the focus and instead of one copyrightable property, lots of varying interests are at stake and no single one can control fans as a whole.

An audience member asks the creators for their opinion on the music videos made from their work by American fans. Akai seems not to have been aware of them (the translation perhaps makes it a bit confusing), but Yamaga appreciates the fan-made works. He discusses the often-pointed-to model of manga and anime creators getting their start in the industry by writing and drawing dojinshi, or unlicensed fan comics based on copyrighted properties: "as Gainax, they got their start doing similar stuff so it's very hard for them to say, ‘No, We won't allow that.'" As a company, they have to plead ignorance that such fan material exists or else even Japanese copyright law would dictate that they shut infringers down. He points to the line between fan/hobbyist and professional as the deciding factor in whether or not infringing work is worth going after legally; in the Japanese manga business, the line is extremely blurred as young artists very often earn their stripes and build their skill on dojinshi before tackling original projects of their own. Japanese creators such as these may not be aware of the American arm of fan's use of their characters and work, but they are used to letting such forms of use slide within their Japanese fan culture.

The almost forced acceptance of the fan use of anime in America, in order to maintain loyalty and relevancy among fanbase, makes anime music videos relatively easy to allow for domestic copyright holders. A lawsuit that attacks a now established tradition within the community would alienate much of a company's fanbase, driving them to other sources-including illegal ones if nothing else is available. Given the companies' general tolerance of (or lack of legal action against) the availability of full episodes or movies online, music videos are a much easier sell as "advertisements" for their products as opposed to replacements or illegal derivative works. And given the industry's heavy stake in the convention scene, it is clear that the community aspect of anime fandom must be maintained and courted in order to stay viable.

By Judge Alex Kozinski and Christopher Newman. Published in the Journal of the Copyright Society of the USA, Volume 46, No. 4, Summer 1999, pages 513-530

This article is a speech given by Judge Kozinski, a member of the Ninth Circuit Court of Appeals. While the speech is an overall discussion about the legitimacy of fair use, there is a significant portion devoted towards the idea of satire and parody and its place in fair use.

Kozinski disagrees with Seuss's thought that "The Cat NOT in the Hat!" is an attempt "to avoid the drudgery in working up something fresh." Instead, Kozinski feels that "It’s easy enough to spew a few lines of impromptu Seussian doggerel, but it takes some creativity and work to write a sustained satirical pastiche that people will enjoy enough to pay money for and recommend to their friends."

In general, Kozinski disagrees with the Bisceglia thought that a satirist can just pick a new work to focus on if he cannot acquire a license to the original work. He states:

"Even if the original work is used only as a vehicle, not just any vehicle will get you where you want to go. You can only get so many chuckles by mimicking something familiar. When this kind of satire really works well, it’s because there is something about the original that fits - or pointedly doesn’t fit - the subject"

Kozinski's stance demonstrates a willingness to grant more freedom to satirists. Similar to the Collado article, Kozinski is cognizant of the creative process and is aware that there are not always other options for satirists to choose from to make their point. In fact, Kozinski adds that "the fundamental premise of our copyright law is that the best way to encourage creation of valuable works is to let authors capture the market value of those works." It is the point of satire to create a different view on a well known material, and by restricting it too much, the spirit of copyright law will be broken.

Overall, Kozinski is a strong supporter of more fair use for satire and disagrees with his colleagues of the Ninth Circuit regarding the Seuss case.

"BEYOND ROGERS V. KOONS: a FAIR USE STANDARD FOR APPROPRIATION." Editorial. The Columbia Law Review Oct. 1993: 1473.

This article gives some background to the case, describing how Koons found a postcard bearing Art Rogers' "Puppies" photograph, sent to it a foundry in Italy and instructed them to make four sculptures that looked exactly like it (with some slight variation in coloring), showed the work in an exhibited entitled "Banality Show" and sold three of the sculptures for a total of $367,000, whereafter Art Rogers sued him for copyright infringement. The court's position was: "The copying was so deliberate as to suggest that Koons and Sonnabend Gallery resolved so long as they were significant players in the art business, and the copies they produced bettered the price of the copied work by a thousand to one, their piracy of a less well-known artist's work would escape being sullied by an accusation of plagiarism."

Koons is accused of plagerizing just because he can. He defended the works as parodic in nature, but despite his stated intent to comment on the banality of much commericial art, the both the district and appelate courts ruled in favor of Rogers. This article quotes Koons as saying that he belongs to the school of American artists who believe the mass production of commodities and media images has caused a deterioration in the quality of society, and this artistic tradition of which he is a member proposes through incorporating these images into works of art to comment critically both on the incorporated object and the political and economic system that created it. It also argues that art that stems from found images is a "valid form of criticism and comment" and that failing to protect artists from infringement stifles expression. It calls for a revised fair use policy tailored to the specific conditions of visual art.

As noted in the introduction, the first part discusses the development appropriation art form within a philosophical and conceptual framework and describes how subject matter is affected by the threat of legal consequences. The article then covers the current definition of parody and fair use, identifies their weaknesses in the “context of appropriation,” and reviews and analyzes academic attempts to develop standards protecting artists’ creativity and their plausibility. It then goes on to suggest a better solution to the problem of parody and fair use that tries to accommodate both the originating and borrowing artists based on preserving the copyright owner’s “economic incentives for further creation” without prohibiting all possible infringements, which reflects of the “unlikelihood that the copyright holder would suffer substantial economic harm to the value of or the market for her work because of the appropriator's activity.” It reflects the idea that any minor harm is “outweighed by the strong public interest in fostering the creation of artworks that speak critically about social norms and constructs.” Ultimately, this article claims, “Appropriation is an art form and a method of creation conceived and defined as a critical force - as such, it is deserving of liberal protection from copyright infringement suits.” 

Here we see the rough legal guidelines that both Japanese and American anime copyright holders tend to adhere to when dealing with fans. In general, fan's use of anime is forgiven and often ignored, unless it exists in direct competition with legitimate localized releases. Anime Music Videos (not mentioned by Leonard) are another, altogether less potentially dangerous (than importing and fansubbing) form of "free advertising" for anime and of strengthening the fan networks that built and maintain the American anime audience. Again, Japanese copyright holders are shown to display a willful ignorance of American fans use for the most part.

The reaction of the Japanese manga artist is examined here in relation to artifacts of fan culture. As manga and anime have penetrated foreign markets, it has brought some of that mindset with it, particularly to America. To begin with it sprang from fans' proactivity creating the American market itself, but the Japanese fan mindset has only been strengthened by the original authors' willful ignorance, and in some cases support, of classically infringing fan works. Despite the differences in American and Japanese case law concerning character copyrights, Japanese characters remain for the most part fair game for dojinshi, music videos, and the like on either side of the Pacific.

By Adriana Collado. Published in Journal of Technology, Law, and Policy, Vol. 9, Issue 1, June 2004.

Collado's article goes through the differences between parody and satire as stated by various court cases. This analysis includes a look into the Campbell and Seuss cases. With regards to the Seuss case, Collado states that the Ninth Circuit "unnecessarily narrowed the Campbell holding and set a precedent inconsistent with the goals of copyright law and with the Campbell decision itself" reaching the same conclusion as the Tushnet article.

Collado then analyzes satire as a fair use and how Seuss was inconsistent with Campbell. Specifically, Collado takes issue with the conclusion that there would be significant market harm from "The Cat NOT in the Hat!" 

"[I]t seems unlikely readers would regard “The Cat NOT in the Hat!” as a substitute for the original, especially since the works target different audiences. While the original Dr. Seuss work is sold in the children’s section of the bookstore, “The Cat NOT in the Hat!” would likely be sold in the adult humor section. Furthermore, the fact “The Cat NOT in the Hat!” was labeled as a parody on its front cover and the author’s name was clearly depicted reduced the possibility readers would confuse or substitute the secondary work for the original."

By Footnote 14 of the Campbell decision (cited above), Collado concludes, there should have been fair use protection for this satire as the potential for market harm was slight.

Collado is a proponent of more freedom for satires. She disagrees with the Bisceglia opinion that satirists can "shop around" for other material if they cannot find a way to make a comment on the original work. Instead, Collado feels that a satirist's ideas are "often intertwined with their underlying source material" and if a satirist must look elsewhere for material, "the idea might not be created at all, thus generating a result...contrary to the goals of copyright law." Finally, Collado argues that satires not only do not displace the market, but could even "increase demand for the copyrighted work" by increasing interest in the original .  

Overall, Collado's article provides a well-reasoned insight into the reasons why satire should be given fuller fair use protection as opposed to the Seuss case.

First of all when it comes to anime, the nature of the original work is almost never anything but pure entertainment-and thus not favorable for allowed fair use. Sometimes anime music videos honestly transformative, when they display completely new stories or mash-ups of various anime. All (or most) by definition add a certain basic level of creativity not necessarily found in the original. But they all still use copyrighted characters in a (most often) non-parody work of original fiction. They also "quote" heavily (given that a single anime is the focus) from a single artistic source for arguably no critical/analytical point; although usually only 2-5 minutes of footage are taken, those few minutes will often contain the "heart" of the original work. AMVs are often concerned with bringing out themes, relationships, plots or action sequences already visible in the original anime. Thus, they are a sort of highlighted text thrown into a tumble dryer. While a level of creativity is evident in virtually every anime music video, that alone may not excuse the distribution of material centered on copyrighted and protected characters. And although they are not sold for profit and their character is largely to enrich the fan community and inspire creativity, there are still ways in which distributors indirectly benefit financially-through internet ad space, or through expensive convention tickets where AMV contests/showings are a main attraction. However, it would be hard to make a case claiming AMVs impacted the market for the original product. They surely straddle the line between fair and unfair use, but as far as the American copyright holders are concerned, the most important aspect of music videos seems to be their usefulness as tools to excite existing fans and advertise to new ones.

Here the major modern precedent is set for the illegality of the sale and distribution (even if not infringing on the market for the originals) of derivative works that change the expression of the original authors without their consent. If films with swearing edited out do that, so surely do music videos where a 26-episode plotline is boiled down to a 3-minute montage, for example. But where Clean Flicks was found to be adding nothing creatively to the original works, AMVs add both a new soundtrack, wholly new editing, and a new or simply focused narrative (or at least a novel collection of moments). This is a strong precedent for the ability of anime copyright holders in America to take action against distributors of music videos containing copyrighted footage. As further sources demonstrate, however, legal action against fans (especially those ardent enough to create music videos) is exactly what anime distributors want to avoid doing no matter how flagrantly the law is being broken. Worse than the music video issue is that of fansubbing, which only transforms works to the extent that subtitles are added, and nothing more; these are distributed over the internet and (mostly in the past) through retail and continue to exist without real legal action against them.

Tyson, Kimball. "The Illegal Art Exhibit: Art or Exploitation? a Look At the Fair Use Doctrine in Relation to Corporate Degenerate Art." Southern Methodist University School of Law Computer Law Review & Technology Review 9 (2005): 425.

This article responds to the "Illegal Art" exhibit that toured the country and features Forsythe's work. The author (who repeatedly spells the artist's name "Forsyth") wants to assess whether or not Food Chain Barbie is fair use--even though the court has already ruled it is. She contends the artists are not sincere in their parodies, and thinks they are actually using art to serve their personal "greedy" objectives. After an abbreviated history of art, Tyson says these works are "an ancillary to Pop Art of the 1960's that take corporate images and use them in their works to convey a parodic message not only of the image itself but of the larger societal scheme of which it reflects." She also summarizes the Copyright Act and defines Fair Use. Instead of actually analyzing what the court said about Forsythe's work, she merely repeats it, and it seems, decides to agree with their ruling. One of the few useful things about this article is her comparison of Forsythe and Koons:

"In the Rogers case, there is no doubt that Koons' use of the original work would compromise Rogers' market of the "Puppies" and "would prejudice the market for the sale of "Puppies" notecards or any other derivative uses he might plan." ²⁴⁷ However, in Forsyth's situation, his photographs seem to have little to no effect on the commercial gain of Mattel based on their copyrighted Barbie Doll. Photographs of Barbie in a blender or in a casserole dish are not really going to have a significant chilling effect on Mattel's market; [this] weighs in his favor."

Tyson allows that the Barbie series is a fair use, but remains suspicious of Forsythe's motives. She writes, "The idea of using art and distorting already existing images to convey a message, to illustrate the absurdity of our times, seems very vulnerable to exploitation. In Mattel Inc. v. Forsyth, the artist had very distinct aims in his creation. Call this a derivative work, call it exploitation. Regardless, perhaps these artists used the well-known corporate images as a way to make money. Just as Volkswagen manipulated the automobile market and somehow made consumers feel as though they were really stepping out of conformity in buying a VW, so these artists, under the pretense of satire and art as corporate parody, had an objective no different than that of the corporations and consumer crazed society which they mocked: personal gain motivated by greed, selfishness, and envy." To me, her argument falls flat given that Forsythe did not profit hugely from the works. Art is his profession, his means of making a living, and to charge $400 for a work that he spent time creating does not seem greedy or unreasonable. She contradicts herself, but this piece is valuable to my research because it takes a position I haven't yet encountered and deals with the concept of artists' "worthiness" so to speak and the merit of their intentions.

Newman, Jon O. EFF: Appellate Decision in Universal v. Reimerdes. Electronic Frontier Foundation. 22 November 2006. <http://www.eff.org/IP/Video/MPAA_DVD_cases/?f=20011128_ny_appeal_decision.html>.

This famous court case involved the publication of the "DeCSS" decryption program on the website 2600.com.  "DeCSS" was designed to break through the CSS encryption on DVDs.  The action of posting this program challenged the Digital Millenium Copyright Act which bans any measure of breaking through digital encryption, or any publication or distribution of any such measure. Eight film studios, including Universal, brought a suit against the operators of 2600.com, seeking to have "DeCSS" and any links to other sites containing it removed from 2600.com for violations of the DMCA.

The appeal challenged the constitutionality of the DMCA, claiming that it restricts free speech, and called for a narrow construction of its terms.  They also claimed that "is rooted in and required by both the Copyright Clause and the First Amendment," and that the DMCA restricts this.  However, the appeals court found no reasoning for these claims, and upheld an earlier injunction by a lower court requiring the removal of the "DeCSS" program and any links to it.

This case is extremely important because it establishes that arguments regarding fair use and free speech are almost no match for the terms of the DMCA.  Were it not for the DMCA, I think it would definitely be easy to argue for my video project as a fair use; however, cases like this clearly state that this is no defense.  The court states that there is no constitutional requirement for a fair use standard, and that such claims cannot supersede violations of anticircumvention laws.

McLaren, Carrie. "Illegal Art: Freedom of Expression in the Corporate Age." illegal-art.org :: A Project of Stay Free! magazine. 2002. Stay Free! magazine. 22 November 2006. .

This is the web site of the "Illegal Art" exhibition which has traveled the United States in the past year. The site contains a copy of curator Carrie McLaren's introduction to the show, in which she states, "The laws governing "intellectual property" have grown so expansive in recent years that artists need legal experts to sort them all out... If the current copyright laws had been in effect back in the day, whole genres such as collage, hiphop, and Pop Art might have never have existed... Should artists be allowed to use copyrighted materials? Where do the First Amendment and "intellectual property" law collide? What is art's future if the current laws are allowed to stand? Stay Free! [the magazine sponsoring the "Illegal Art" exhibition] considers these questions and others in our multimedia program." The site also includes a gallery of the various pieces included in the exhibit, which include a Mickey Mouse gas mask, photographs of Barbie dolls in kitchen appliances, a re-interpretation of the Starbucks logo as a "Consumer Whore", and various pieces including the "DeCSS" program.  Many of the artists involved in the "Illegal Art" show were or are the targets of legal action by the holders of the copyrights to the works they appropriated.

The "Illegal Art" website is definitely a valuable resource in the creation of my project; through the gallery of the included works, I will be able to see how other creators used appropriated materials to comment directly on the nature of copyright issues.  The artists involved in the exhibition used many different media to create their pieces, including a number of video pieces. 

            This case is an appeal by Napster of an injunction that does not require the plaintiffs to provide any individual file names of potentially infringing works available on the Napster system. The orders require the plaintiff to provide notice to Napster of copyrighted works by providing the title and artist name for each work. When given a list of copyrighted recordings, Napster would have three days to search all files on its system and prevent the transmitting or distribution of those files. Plaintiffs had sent in notices of hundreds of thousands of copyrighted works without the corresponding file names in the Napster system. Napster complained that the plaintiffs did not provide variants in song and artist name and could mix complying items in the same notice as non-complying items because Napster could not check in the time allowed by the injunction. The consequence was that Napster would end up blocking many authorized files.  The arguments were that the DMCA set limitations on the judicial power of ISPs such as Napster, did not assess the "staple article of commerce" doctrine set forth in Sony, and that Napster has commercially significant non-infringing uses but is forced to block sharing of files even though the names do not always correspond with the contents of those files.

            This case brings up some important points in my research about why copyright holders are finding it beneficial in some cases to waive some of their copyright in order to use new technologies such as MP3 blogs to promote music, while they continue to fight similar technology such as peer-to-peer services. Any discussion of Internet Service Providers (ISPs) liability is important because it affects how people can make blogs and share new things over the internet. There are several ISPs which allow anyone to create a blog from them, and these businesses are based on previous cases such as the Sony Corp v. Universal City Studios, Inc case where liability of technology providers is limited if they do not have specific knowledge of infringing uses of the technology. It also shows how even though a company can send take down notices, it is still difficult and costly to actually take a case to court and win it, no matter how clear cut it originally seems.

            This case was brought to raise questions about the legality and constitutionality of the Digital Millennium Copyright Act. The argument is that "the DMCA's anti-device provisions are not a valid exercise of any of Congress' enumerated powers," and that they also "violate limits on the scope of copyright protection required by the First Amendment." The first part says that the Intellectual Property Clause does not give the authorization that anti-device provisions give, which allow technology to be banned regardless of how the device is actually used. The second argument is that in the anti-device provisions, Congress overstepped the authority given by both the Intellectual Property Clause, and the Necessary and Proper Clause, and upset the balance created by the Intellectual Property Clause, resulting in the monopolies that the framer sought to avoid. The third argument is that the Commerce Clause does not empower Congress to override other constitutional constraints. The fourth argument is that anti-device provisions violate First Amendment Limits on the scale of copyright protection.

            I am researching why copyright holders in the case specifically of major record labels are willing to waive their copyright in certain situations such as MP3 blogs while choosing to exercise the copyright in similar situations such as peer-to-peer file-sharing networks. The case is relevant although it is not about blogs in that it provides an argument against a proposed end goal for copyright holders, the DMCA's anti-device provisions. The argument is that it upsets the balance intended between copyright and censorship and monopolies. Anti-device provisions would ban many devices even with commercially significant uses and would contradict fair use and First Amendment arguments, and would effectively end any possibility for use of technology such as MP3 blogs.

            This essay describes what an MP3 blog is, and how record labels want to capitalize on the promotion that they provide while fighting file sharing at the same time. The essay discusses the types of copyright infringement and fair use and how they apply to MP3 blogs, as well as the factors that cause the court to view MP3 blogs more favorably than peer-to-peer networks. It discusses law suits against Napster and also by the RIAA against peer-to-peer users.  The article explains what establishes liability for infringing use, and the different expansions of the Copyright Act which have been brought by copyright owners in addressing new technologies. It then discusses some of these acts and gives some examples of violators. The next section explains the defense used when copyright owners bring suits, which is fair use, and it lists and describes the four factors in deciding fair use on a case by case basis.

            This essay incorporates basically every aspect of my research into why copyright holders are willing to waive certain copyright in cases such as MP3 blogs, while they continue to fight against much of new technology such as peer-to-peer services. It describes what MP3 blogs are and how they are used and different sites that can link to the unauthorized music.  It shows what the copyright holder needs to look for in order to bring a suit against infringing users, and also explains how the user of the work can try to use fair use as a defense.

By Julie Bisceglia. Found in ASCAP Copyright Law Symposium, Volume 34, pages 1-34, 1987.

Bisceglia's article discusses in great detail the legal standing of parody by analyzing numerous cases that involve parody and/or satire. After concluding that there are contradictions and inconsistencies regarding the nature of fair use as it applies to parody, Bisceglia offers her own legal definition of parody, which includes "the parody must criticize the source text"

 Assuming that the definition of satire is a work that uses a copyrighted work to comment on something else, Bisceglia takes a view that satire should not have protection under fair use. Bisceglia says that "a parodist must have good reason for encroaching on a copyright owner's territory...using a copyrighted work to snipe at other targets does not involve the same urgency."

 Furthermore, Bisceglia does not see her view as a matter of restricting creativity. In her opinion, satire or parody "does not depend on a single text" and if the author cannot acquire the necessary license he should be able to find some other source for his work.

 Bisceglia's overall point is very restrictive of satire. Under her definition, most satire would have no legal standing to claim fair use.

                In this press release, the Paris based World Association of Newspapers (WAM), representing a membership of eighteen thousand newspapers worldwide, including AFP, seeks to address the issues facing newspapers resulting from new technologies. In particular, in the WAM press release, WAM discusses the ‘Napsterisation' of newspaper content. More explicitly, the group expresses a desire to counteract "the exploitation" by Google News and other search providers of copyrighted news articles. While Google, Yahoo and other search engines hide behind a guise of social benevolence, WAN asserts that these search engines do not represent "Robin Hoods," but rather highly profit oriented organizations that are seeking to misuse the hard work and copyrighted content of newspapers. Ultimately, WAN seeks to craft a relationship between newspaper publishers and search engines that would prove profitable and legal for both parties involved. WAM appears to understand that newspapers must adopt to technology, but at the same time WAM seeks to have that adaptation involve compensation by the search engines to the newspapers.

                As a reflection of WAM's ultimate objective, Google and the Associated Press agreed to a deal in August of 2006 that would compensate AP when Google News used its assets. Google justified the deal with AP in that the AP content licensed Google assets would complement Google News. Google News would remain a news aggregator that linked to news sites, which Google adamantly considers a fair use.

                Similarly, in November of 2006 Yahoo! struck a deal with over 150 United States newspapers. The agreement announces that Yahoo's technological leadership, specifically search, advertising and infrastructure, will be partnered with the leading newspaper content in the United States. The partnership plan will allow Yahoo! users access to personalized local news, such as classifieds.

As evidenced by these deals, the presence of Google News and Yahoo! should ultimately make newspapers more profitable, not less. Users should click through links on Google News and on Yahoo! more frequently than before, thus, raising the page views, revenue and attractiveness of newspapers. Although the recording industry may have been technically correct on the copyright violations Napster committed, ultimately by not adopting to technology changes, the recording industry has been eroded and not been the driver of change. News services and newspapers must consider how to adapt to changes brought on by technology, not merely fight changes technology brings.

Schmidt, Eric. “Conversation with Eric Schmidt Hosted by Danny Sullivan,” interview by Danny Sullivan (9 August 2006) (http://www.google.com/press/podium/ses2006.html) (last accessed 26 November 2006).

In this interview of Google CEO, Eric Schmidt, by Danny Sullivan at the Search Engine Strategies Conference, Schmidt discusses issues facing Google. He addresses everything from click fraud to protecting user private data. Ultimately, Schmidt underscores Google commitment to provide to Internet users the most relevant information, whether it is news, ad-content or search results. He does confess to a new emphasis on profitability.

Most relevantly, Schmidt addresses the pending lawsuit with AFP. Schmidt asserts that Google understands and wants to be sensitive to various conceptions of rights and copyrights. Schmidt also admits that there is an underlying ambiguity associated with fair use but appears to remain firmly committed to Google’s definition of fair use. Schmidt asserts that Google’s use of parts or snippets of copyrighted materials, like books and news, is not only fair use, but a vital research and knowledge tool. In the interview, Sullivan, expressly asks Schmidt about the AFP lawsuit, and whether the deal between Google and the Associated Press was made to “solve a legal issue.” Interestingly, Schmidt answers that for Google, litigation is just another way of making a business deal. In other words, the AFP lawsuit was not unexpected, but rather something Google understood might occur given its new use of technology. The deal between Google and AP addresses these same issues in a different way – a way that attempts to foreclose litigation and to reach an amicable resolution of essentially the same issue.

            Despite its altruistic mission of making relevant knowledge available worldwide, Google is ultimately a profit making corporation. Schmidt’s comments reveal that Google’s rise from search engine to a dominant corporation rests in its aggressive and liberal interpretation of fair use. Thus, the dispute with AFP could be settled if Google could reach a satisfactory monetary agreement with AFP as it did with the AP. No matter what social cause the EFF or other bloggers ring regarding the global importance of Google and free speech and the public’s right to knowledge, Google is just another company trying to impress its shareholders with its profitability.

On August 12, 2005, the Association of American Publishers (AAP) posted a press release on their official website expressing their frustrations with the Google Print Library Project.  The release states that the AAP supports the aims behind Google’s program but objects to Google’s use of copyrighted material without explicit permission.  In addition, the AAP objects to Google’s “opt-out” policy.  Through this policy Google will copy and digitize copyrighted works unless copyright owners specifically exclude their works from the program.  Mrs. Schroeder, President and CEO of the AAP, states that Google’s opt-put policy, “…shifts the responsibility for preventing infringement to the copyright owner rather than the user, turning every principle of copyright law on its ear.”  This August press release sets the stage for the lawsuit filed by the AAP against Google on October 19, 2005. 

The day this lawsuit was filed, the AAP posted a press release on their official website.  The release states that the lawsuit resulted from a breakdown of negotiations between the AAP and Google.  According to the AAP, an ISBN based system can be easily utilized to aid in identifying copyright owners and obtaining proper permission to copy and digitize works.  However, Google’s rejection of this system forced the AAP to file suit.  In this release as well as the August one, the AAP makes a point to state their understanding of the benefits of Google’s program; the release declares, “…authors and publishers know how useful Google’s search engine can be and think the Print Library could be an excellent resource.”  Nevertheless, the AAP strongly maintains that these benefits do not trump the fact that Google is engaging in copyright infringement.