Is Copyright Law's Fair Use Doctrine Sufficient?

Introduction

In the decades since the codification of the Fair Use doctrine in the Copyright Act of 1976, both developed nations and many developing nations have witnessed an unprecedented growth of information and communication technologies. In addition to altering the ways in which people receive and consume media, these technologies have also revolutionized the ways in which culture is produced and shared. Rather than simply being passive consumers of prepackaged cultural products, ordinary citizens are now actively engaged in the creation of culture. An important point to note, however, is that culture builds upon existing culture. It is rare for a completely new cultural form to emerge that does not in some way draw upon what already exists. In addition to simply borrowing forms and abstract ideas from existing cultural artifacts, however, much content depends on actually integrating existing works into something new. For example, a YouTube video may play a copyrighted song in the background. The Fair Use doctrine allows for some uses of copyrighted material that would otherwise not be permissible, but this paper attempts to demonstrates that, at least if the interests of both copyright law and the fair use doctrine are interpreted broadly, the Fair Use doctrine as it exists today is insufficient in protecting its interests; namely promoting both the creation of content and promoting the availability of content to society.

Part I provides a background on the Fair Use doctrine and discusses perspectives on why it is important. Part II attempts demonstrates that the Fair Use doctrine as it currently exists is insufficient in protecting a number of social interests. This section discusses some significant changes to the copyright statute since 1976, draws on case law, and explores the significance of new technologies in order to make this argument. Part III explores ways in which the insufficiencies of the Fair Use doctrine could be remedied and discusses the strengths and weaknesses of various approaches. Part IV provides concluding remarks.

Before exploring the specifics of the Fair Use doctrine and the interests it attempts to protect, it is worthwhile noting that the author of this paper is highly skeptical of the entire institution of copyright law. As such, some of the proposed solutions may seem quite radical to many readers. While many readers may fail to be persuaded by some of the more radical arguments and solutions proposed by this paper, it is the hope of the author that this paper will at least encourage readers to consider the shortcomings of copyright law and the Fair Use doctrine as it exists today.

Part I: Background on the Fair Use Doctrine

In order to understand the importance of the Fair Use doctrine, it is necessary to understand the purpose of copyright law. In the United States, copyright law is not based on a notion that individuals are entitled to some sort of natural right to control the use of their creative works. Rather, the rationale for granting exclusive rights to content creators is constitutionally defined as an economic institution with a specific purpose: “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.”ⁱ The language in the statute concerning fair use is as follows:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.ⁱⁱ

Because the language of the statute does not specify the purpose of the fair use limitations on exclusive rights, it is reasonable to assume that the purpose is to somehow further the constitutional goal of promoting the progress of science and useful arts. Keeping this in mind, this paper now turns to an early landmark case that serves to enlighten our discussion on the topic. In Sony Corp. of America v. Universal City Studios, Inc.,ⁱⁱⁱ the Supreme Court evaluated whether Sony could be held liable for contributory infringement by users of the Betamax video recorder. The Court held that Sony could not be held liable for contributory infringement because there were significant non-infringing uses for the video recorder. Specifically, the Court held that the practice of “time shifting” television shows (recording shows for later playback) does not constitute infringement because many copyright owners would not object to time shifting, and because time shifting constitutes a fair use.

Wendy Gordon (1982) argues that the fair use doctrine is only meant to address a specific type of market failure. She observes that, by definition, copyright law grants copyright owners the ability to extract monopoly rent by exercising the ability to exclude non-paying parties from using the copyrighted work. Because the copyright owners possess a monopoly to their works, there will inevitably be some deadweight loss; because monopoly prices are far above marginal costs, fewer total transactions will take place than would take place in a competitive market. Society is willing to accept this inefficiency because it is assumed that it will lead to more works being created.

Gordon (1982) observes that situations exist in which certain uses of copyrighted works are prevented from taking place simply because there exists no efficient mechanism for paying for the right to use the copyrighted work. Transaction costs are prohibitively high. Gordon’s article was written between the time the Court of Appeals for the 9^th Circuit held that Sony was liable for infringement committed by users of the Betamax video recorder and the Supreme Court’s reversal. Gordon argues that time shifting of television content should be considered fair use simply because there exists no efficient mechanism for charging customers a fee for the right to time shift programming. She suggests a three-point test for determining whether a use of a copyrighted work constitutes Fair Use^iv: “(1) defendant could not appropriately purchase the desired use through the market; (2) transferring control over the use to defendant would serve the public interest; and (3) the copyright owner’s incentives would not be substantially impaired by allowing the user to proceed” (page 1601).

Depoorter & Parisi (2002), argue that Gordon’s perspective ignores another type of market failure, and that Fair Use is necessary to protect a far wider set of activities those which would be protected by the three part test suggested by Gordon. Depoorter & Parisi observe that creative works do not arise in a vacuum, and that many creative works depend on reusing parts of existing copyrighted works. For example, an independent movie could include a portion of a copyrighted song, parody scenes and story elements from other movies, and quote a copyrighted novel. If creation of this work requires payment of licensing fees (at monopoly prices) to multiple copyright owners, it is likely that the work simply will not be made. Thus, copyright law would be working directly against the constitutionally defined purpose of promoting creativity. Fair use, then, limits the exclusive rights granted to copyright holders in order to further the interests copyright law is intended to promote.

Fred von Lohmann (2002) of the Electronic Frontier Foundation makes three points about fair use. First, a number of activities which are important to protect from both a personal autonomy perspective and from a first amendment perspective would constitute copyright infringement were it not for the fair use doctrine. Lohmann gives the examples of “whistling a tune while walking down the street (public performance), “cutting out a New Yorker cartoon and posting it on your office door (public display)”, and “quoting from a novel in a review (reproduction)” among others. Second, he argues that the ambiguity of the fair use doctrine (as defined by the statute) is “a feature, not a bug”. New technologies continue to offer the ability for new uses of copyrighted works which had not previously been envisioned. The ambiguity of the fair use doctrine allows for new technologies to be evaluated on a case by case basis. Finally, Lohmann observes that “fair use has served as a catalyst for innovation and a buttress for competition”. This third observation is closely related to the second, new disruptive technologies depend upon the fair use doctrine to be allowed to exist (think, for example, of the ipod) and in turn challenge old inefficient ways of doing things.

At this point, one specific activity which constitutes fair use deserves special attention, as it demonstrates the economic interests of competition and content creation protected by the doctrine. In software engineering, reverse engineering allows for developers to figure out how the software of their competitors works; thus allowing the developer to create competing software and to ensure interoperability with existing software. While object code (code readable only by machines) is protected by copyright law, the underlying abstract ideas behind the code are not copyrightable^v. Reverse engineering, however, by its nature involves copying of object code.

The Court of Appeals for the Ninth Circuit addressed the question of whether copying object code for the purpose of reverse engineering is a fair use in Sega v. Accolade^vi. Accolade, a video game developer, wanted to produce a game which would run on the Sega Genesis. In order to determine how to make the game work on the Genesis system, however, Accolade had to copy the object code from one of Sega’s games for the purpose of reverse engineering. Applying the four factors for determining fair use, the court held that the first factor, “the purpose and character of the use, including whether such use is of a commercial nature…” actually weighed in favor of Accolade. Although the character of the use was clearly commercial, the court noted that reverse engineering encouraged creation of new content and competition, consistent with the constitutionally defined purpose of copyright law^vii. Of the remaining three factors, the court held that only “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” worked against Accolade. Ultimately, the court held that the copying necessary for reverse engineering is protected by the fair use doctrine.

Thus far, several ways have been noted in which the fair use doctrine protects various economic (and ultimately social) interests. Fair use can prevent deadweight loss due to transaction costs, can prevent deadweight loss due to having to pay license fees for multiple inputs to a creative work, can allow for technological innovation, and promotes competition through reverse engineering. In a report prepared for the Computer & Communications Industry Association, Rogers & Szamosszegi (2007) evaluate the “economic contribution of industries relying on fair use”. What is noteworthy is that this study was conducted by an association representing an industry which depends heavily on copyrights. It is noted in the report, however, that while the companies represented by the association depend on the exclusive rights granted by copyrights, these same companies also depend on the ability to make fair use of products created by other companies. The report uses methodology developed by the World Intellectual Property Organization (WIPO) for measuring the economic contributions of copyright industries, but uses this methodology to measure the economic contributions of industries depending in some way on fair use. The study found that in the United States in 2006, “fair use industries” generated $4.5 trillion in revenues, added $2.2 trillion to GDP, and employed 17.3 million people.

Part II: Shortcoming of the Fair Use Doctrine

Now that we have discussed various rationales for the fair use doctrine, we can begin to evaluate how well these interests are actually protected. This section will demonstrate how the fair use doctrine is failing to protect important interests in today’s Internet mediated environment. These failures can be seen both as a result of adapting copyright law to a very different media environment than that which it was originally designed for, and also as a result of changes made to copyright law by the passage of the Digital Millennium Copyright Act in 1998.

Benkler (2006) argues that, with the rise of powerful personal computers coupled with the emergence of the Internet as a global network we are witnessing nothing less than a fundamental shift in the way culture is created in shared. We are undergoing a transition from what Benkler calls the “Industrial information economy” to a “Networked information economy”. Production of culture is no longer limited to centralized corporate entities operating based on market forces; but has shifted to groups of individuals collaborating over the Internet to produce culture. This can be seen in the success of Wikipedia, which depends on the contributions and participation of individuals and groups around the world. In such a situation, where a large portion of the human race has the ability to actively participate in the production and distribution of culture, many of the old assumptions about copyrights need to be reconsidered.

When the Internet began to emerge as a significant social and economic force, rather than taking the opportunity to evaluate whether copyrights are still necessary, government passed the Digital Millennium Copyright Act (DMCA) in 1998 along with the Sonny Bono Copyright Term Extension Act which, this paper argues, placed substantial limitations on the ability of the fair use doctrine to protect important interests. The relevant portions of the DMCA for the purpose of this study are the provisions against circumvention of Digital Rights Management (DRM) systems^viii (technological measures meant to control what a user can do with a digital media product) along with the provisions regarding online service provider liability for copyright infringement committed by users^ix.

The DMCA dictates both that “No person shall circumvent a technological measure that effectively controls access to a work protected under this title”^x and prohibits the manufacture, importation, or provision to the public of technologies primarily designed to circumvent technological protection measures which lack only limited commercial significance other than circumvention and which are sold for the purpose of circumvention^xi.

Recall from the previous section that Fred Lohmann (2002) argues that the ambiguity of the fair use doctrine is a “feature, not a bug”; and that this ambiguity leads to a constant renegotiation of what constitutes fair use in light of technological innovations. It is in this way that the fair use doctrine promotes technological innovation. Lohmann observes, however, that DRM (coupled with the anticircumvention measures of the DMCA) denies society the ability to test whether emerging technologies and uses of content are protected by the fair use doctrine. If a new technology circumvents a DRM system to make use of a digital media product in a novel way, it has already violated the law.

Lohmann’s argument seems compelling in light of Realnetworks, Inc. v. Streambox, Inc.^xiiwhich was decided by the United States District Court for the Western District of Washington. Among other issues addressed in this case was the question of whether Streambox’s “VCR”, a piece of software which allowed users to save a Real Media stream to the hard drive for later viewing even if the stream had a flag (which would constitute a technological protection measure) which indicated that the owner of the copyright did not want the content to be saved to a hard drive. In order to do this, the program circumvented a technological protection measure. The court held that the fair use doctrine did not protect this activity. Streambox was held liable for trafficking in a circumvention technology. A significant factor weighing against Streambox was the argument that if content creators explicitly indicated that consumers of the copyrighted work should not be allowed to save the work to their hard drives, it should not be permitted. Recall that in the Betamax case the court had noted that many television programmers would not mind their content being time shifted. This decision may be satisfying to those who believe the sole purpose of the fair use doctrine is to allow use when transaction costs are prohibitive; but it is unsatisfying for other interpretations of why we need fair use. While technology is becoming more sophisticated, this case would seem to demonstrate that consumers of content actually have fewer rights in this digital landscape. DRM technologies allow content creators to control how media is used at the expense of granting agency to the consumers of culture. While consumers of media used to be able to fast forward through the previews on prepackaged VHS movies, the DRM on DVDs now forces consumers to sit patiently through previews. Circumvention of the DRM in order to skip the commercials would violate the law.

Imfeld (2003) provides further arguments as to how the DMCA endangers fair use rights. Specifically, he argues that the statue offers insufficient protection for fair use and also hinders encryption research. Although the statute contains exception for fair use^xiii and for encryption research^xiv, Imfeld argues that these protections are hollow and insufficient. Imfeld notes, for example, the statute defines the exemption for encryption research very narrowly^xv.

Felten v. Recording Industry Association of America^xviserves to demonstrate Imfeld’s concerns. Edward Felton, a professor at Princeton University, entered a contest to hack digital watermarking technologies meant to protect audio files. This contest was sponsored by the Secure Digital Media Initiative Foundation (SDMI). When Felton was successful in hacking the watermark technologies, he was offered $10,000 to turn the rights to his work over to SDMI. Rather than accepting the money, however, Felton indicated he would present his findings at a conference. The Recording Industry Association of America, however, threatened to sue Felton for making circumvention technology available to the public. Felton sought a declarative ruling that presenting research at a conference would not constitute a violation of the DMCA. The case was dismissed, however by a New Jersey Federal District Court (Imfeld, 2003).

Beyond the anticircumvention provisions of the DMCA, the legislation also established a framework for limiting the liability of online service providers for copyright infringement committed by users of the system. While this legislation is fairly complex and has many fair use implications, for the purpose of this paper the discussion is limited to the portions referring to “Information Residing on Systems or Networks at Discretion of Users”^xvii and “Replacement of Removed or Disabled Material and Limitation on Other Liability.”^xviii This legislation addresses the issue of whether service providers can be held liable for user generated content which infringes on copyrighted works. Were service providers potentially liable for all infringement committed by users of a system, the risks of allowing users to post content could be severe enough for providers not allowing users to post content. Title 17 U.S.C. §512(c) outlines a process by which service providers can avoid liability for hosting infringing content posted by users, assuming the service provider is neither aware of the infringing material^xix. Service providers are immune from liability if they promptly take down or disable content upon receiving a “takedown” notice from the copyright owner. If a user’s content is removed, the service provider is immune to liability from legal action by the customer who’s content was removed or disabled if the service provider allows the user to file a counter notice for the replacement of the removed or disabled material. The legislation mandates, however, that the service provider “replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice…”^xx Thus, even if a user’s work which would constitute fair use is taken down, it will be down for a minimum of 10 business days. Urban & Quilter (2006) evaluated a dataset about the use of the takedown procedure and find that large media corporations send most of the takedown notices. They note that in many cases, the works taken down may have constituted fair use, and that the processing of large quantities of takedown notices places significant stress on service providers.

The way in which the takedown notice procedure has implications for fair use can be demonstrated by the video sharing website YouTube. Nate Anderson (2009), a blogger for “ars technica”^xxi reports on how the takedown procedures of the DMCA affected the fair use fights of film critic and video blogger Kevin Lee. As part of an essay on “the 1,000 best films ever made”, Lee posted a large number of film clips as part of his “criticism and commentary”. Despite the fact that these clips probably constituted fair use, they were taken down due to DMCA notices. Because YouTube has a policy for terminating the account of users whom they receive three DMCA complaints about, Lee was banned from posting videos on YouTube. Anderson argues that this demonstrates that the DMCA takedown system has a significant negative impact on fair use and free speech interests.

Lessig (2004) notes another disturbing trend in copyright law. The retroactive extension of copyrights, exemplified by the Sonny Bono Copyright Term Extension Act of 1998, has no economic justification. Allowing copyright owners to continue to extract rent for existing works for a prolonged term cannot promote creativity, because the work already exists. Rather, the retroactive extension of copyright terms narrows the public domain and allows the continued tolling of culture. The implication for fair use is that, given the longer terms of copyrights, more public interests, not less, should be protected by fair use.

As mentioned in Part I, reverse engineering is an important form of fair use which promotes competition and interoperability. Yet decided in the Court of Appeals for the 8^th Circuit, Davidson & Associates v. Jung^xxii demonstrates how both the anticircumvention provisions of the DMCA along with contract law threaten this interest. Defendants had reverse engineered a client for online play of video games made by Blizzard software. This client circumvented anti-piracy protections and thus allowed users to play pirated games online. The defendants also had to circumvent DRM to access the relevant code for reverse engineering. Furthermore, the software being reverse engineered included a click-through End User License Agreement (EULA) which stipulated that by clicking to accept the terms of the license agreement, users waived their fair use right to reverse engineering the software. The court held that by clicking accept on the EULA the defendants had contracted away their fair use rights. Contract law preempts the fair use doctrine. Furthermore, the court held that fair use was not a defense for circumvention of the DRM. The defendants were held liable for both circumventing the DRM themselves and trafficking in circumvention technology.

The above trends and perspectives demonstrate that while technology offers a number of new ways in which information can be produced and distributed, the exclusive rights granted to copyright holders are becoming stronger rather than weaker. Furthermore, the fair use doctrine has not kept pace with changes in technology and law. This is a problematic trend because, as discussed in Part I, the fair use doctrine is important both for economic efficiency and social welfare. The erosion of the fair use doctrine as an effective limitation on liability can thus be seen as working counter to the constitutional purpose of copyright law.

Part III: Exploration of Solutions

Now that the importance of the fair use doctrine has been explored, and it has been demonstrated that the fair use doctrine is failing to protect the interests it is meant to protect in the current legal and technological landscape, we turn now to potential solutions. In discussion of reforms to copyright law, one point to keep in mind is that the United States is bound by certain international treaties to provide a certain level of copyright protection. Imfeld (2003) points out, for example, that the anticircumvention measures in the DMCA were at least in part enacted because of standards set by the World Intellectual Property Organization (WIPO). At a time where when world financial institutions are in chaos, and there exists widespread speculation of the establishment of a new global economic order based on the perceived need for new regulatory frameworks; it can be argued that it would behoove the world community to reevaluate the utility and implementation of copyright law. Also, it is worth while noting that copyright and fair use reform could be extremely politically difficult. On the one hand, large industries have an incentive to lobby against any legislation which would challenge existing business models. Moreover, it seems as though many people still believe that copyrights are a natural right, rather than an economic institution.

In the previous section, much attention was given to the ways in which the anticircumvention measures of the DMCA worked against fair use interests. While acknowledging the political difficulties of changing the law, we should at least consider eliminating or significantly weakening these provisions. It is unclear to what extent DRM even prevents piracy rather than simply inconveniencing users and allowing copyright owners to dictate how media is used. Also, society would benefit if courts began to consistently hold that fair use is an affirmative defense from liability for circumventing DRM or trafficking in circumvention technology.

The notice and takedown procedure of the DMCA was also discussed as a threat to fair use. This is an area law that may actually be politically viable to change. As noted by Urban & Quilter (2006), the notice and takedown procedures not only compromise the fair use rights of individuals, but also inconvenience service providers. As user generated content continues to become a more significant portion of the content available on the Internet; and “Web 2.0” sites depending on user generated content as central to their business models, it is likely that service providers could make use of their significant lobbying power to modify the legislation. A new approach to protecting service providers from liability while simultaneously providing remedies for copyright infringement would have to recognize fair use rights. If service providers were granted blanket protection from liability so long as they agreed to provide copyright owners with the identities of users suspected of copyright infringement, this would force copyright owners to address infringing content on a case by case basis rather than sending large numbers of take-down notices which may or may not constitute fair use. This approach, however, would compromise the privacy interests of individual contributors of content. A better approach may be to impose some punitive measures on copyright owners for sending takedown notices regarding works constituting fair use^xxiii. Copyright owners, however, would not be happy about such a change to legislation; and it could potentially lead to large quantities of expensive litigation along with the uncertainty inherently attached to frequent civil litigation.

The solution to some of the insufficiencies of the fair use doctrine could probably be better address in the courts rather than in Congress. As seen above, Lessig (2004) makes a strong argument against the utility of retroactive copyright protection. Legislation retroactively extending the duration of copyrights could reasonably be challenged on constitutional grounds: Retroactive extension of copyright durations cannot promote creativity, and it is dubious whether it meets the constitutional requirement that exclusive rights be granted only for a limited time. The problem of contract law preempting fair use rights could be addressed either in court or in law. If the Supreme Court agreed to hear a relevant case, they may well establish that fair use rights cannot be preempted by contract law. Alternatively, language could be added to the copyright statute dictating that fair use rights cannot be preempted by contract law.

It is worth noting a more radical solution. When the United States enacted the Copyright Act of 1790, reproduction of works was far more expensive and difficult. Copyrights primarily protected the works of authors from unauthorized printing. Also, works had to be registered in order to receive copyright protection (which, at the time lasted 14 years with the possibility of a 14 year extension), but most works were not registered (Bailey, 2006). Today, reproduction of copyrighted works is nearly free via the use of information technology, and receive copyright protection the moment they are “fixed in any tangible medium of expression…”^xxiv Clearly, today’s high tech society has different needs than the society of 1790. While the constitutional justification of promoting creative expression is admirable, perhaps a more appropriate justification for having a copyright system would be to promote social welfare. Society benefits when new content is created, but society also benefits from the wide availability of copies of copyrighted works. If a work is created, but only 100 copies are made because the author is charging too high of a price, society will not benefit as much as it would if 1,000,000 copies were made and sold for far less. It should be further noted that consumption of some types of works may have positive externalities. By consuming educational material, a person not only helps herself, but may also have a positive impact those around her. This positive effect may not occur, however, if fewer copies of a work are available because the author is charging monopoly prices for the reproduction of the work. It would seem that, while copyrights may promote the creation of at least some types of content, it often fails to promote wide distribution of, and thus maximum societal benefit from content. Thus, perhaps either the fair use doctrine should be modified to protect a far wider range of activities or copyright law as we know it is fundamentally flawed, and needs to be either revoked or substantially reworked to once again serve a useful purpose.

Part IV: Conclusion

This study has demonstrated that a diverse set of interests, both social and economic, are protected by the fair use doctrine. In fact, the fair use doctrine seems necessary in order to have a copyright system which actually promotes content creation. At the same time, new technologies are emerging which hold the promise to dramatically alter the way society produces and distributes content. Sadly, rather than realizing that this new technological environment has different underlying economics, politicians and courts have responded to the emergence of new technology by strengthening copyright protection while undermining the fair use doctrine.

In a time of global economic crisis, we have an opportunity to reevaluate the legal and economic institutions which have been developed over the centuries and decide whether these institutions are still meeting the needs of modern society in light of the dramatic social and technological changes which have been taking place over the past decades and centuries. Copyright law may still have some utility for encouraging certain types of content production; but we cannot blindly and dogmatically accept that this will be the effect copyright law has in the real world. Rather than adhering to the ideology that copyrights are a natural right to which content creators are entitled; we must seek policies which actually meet the needs which we decide are important.

References

Anderson, N. (2009). What fair use? Three strikes and you’re out… of YouTube. Ars Technica. Retrieved from http://arstechnica.com/tech- policy/news/2009/01/what-fair-use-three-strikes-and-youre-out-of-youtube.ars

Bailey, C., W. (2006). Strong copyright + DRM + weak net neutrality = digital dystopia? Information Technology and Libraries, 25(3), 116-127.

Benkler, Y. (2006). The wealth of networks. Yale University Press: New Haven.

Depoorter, B. & Parisi, F. (2002). Fair use and copyright protection: A price theory explanation. International review of Law and Economics. 21(4), 453-473.

Gordon, W. (1982). Fair use as market failure: A structural and economic analysis of the “Betamax” case and its predecessors. Columbia Law Review, 82(8), 1600-1657.

Imfeld, C. (2003). Playing fair with fair use? The Digital Millennium Copyright Act’s impact on encryption researchers and academicians. Communication Law & Policy, 111-144 (2003).

Lessig, L. (2004). Free culture. The Penguin Press.

Lohmann, F. (2002). Fair use and Digital Rights Management: Preliminary thoughts on the (irreconcilable?) tension between them. Electronic Frontier Foundation. Retrieved from: http://w2.eff.org/IP/DRM/cfp_fair_use_and_drm.pdf

Rogers, T. (2007). Economic contribution of industries relying on fair use. Computer & Communications Industry Association. Retrieved from: http://www.ccianet.org/artmanager/uploads/1/FairUseStudy-Sep12.pdf

Urban, J. & Quilter, L. (2006). Efficient process or “Chilling effects”? Takedown notices under section 512 of the Digital Millennium Copyright Act. Santa Clara Computer & High Tech Law Journal. 22, 621-693.

i United States Constitution, Article 1, Section 8, Clause 8

ii Title 17 U.S.C §107. Limitations on exclusive rights: Fair use

iii 464 U.S. 417 (1984)

iv Note that this is different from the test laid out in the statute.

v Title 17 U.S.C. §102(b) states: “In no case does copyright protection for an original work of authorship extent to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

vi Sega Enters., Ltd. v. Accolade, Inc., 977 F.2d 1510, 24 U.S.P.Q.2d (BNA) 1561 (9th Cir. 1992).

vii From the opinion: [W]e are free to consider the public benefit resulting from a particular use notwithstanding the fact that the alleged infringer may gain commercially. Public benefit need not be direct or tangible, but may arise because the challenged use serves a public interest. In the case before us, Accolade's identification of the functional requirements for Genesis compatibility has led to an increase in the number of independently designed video game programs offered for use with the Genesis console. It is precisely this growth in creative expression, based on the dissemination of other creative works and the unprotected ideas contained in those works, that the Copyright Act was intended to promote.

viii Title 17 U.S.C. §1201

ix Title 17 U.S.C. §512

x Title 17 U.S.C. §1201(a)

xi Title 17 U.S.C. §1201(b)

xii 2000 U.S. Dist. LEXIS 1889

xiii Title 17 U.S.C. §1201(c)(1)

xiv Title 17 U.S.C. §1201(g)

xv Title 17 U.S.C. §1201(g)(2)(C) mandates that an encryption researcher must make a “good faith effort to obtain authorization before the circumvention. §1201(g)(3)(B) defines encryption research narrowly: “… the person is engaged in a legitimate course of study, is employed, or is appropriately trained or experienced, in the field of encryption technology…”

xvi Felten v. Recording Industry Association of America, Inc. (D.N.J. 2001) (No. CV–01–2669)

xvii Title 17 U.S.C. §512(c)

xviii Title 17 U.S.C. §512(g)

xix Title 17 U.S.C. §512(c)(1)(a)

xx Title 17 U.S.C. §512(g)(3)

xxi A popular technology blog, http://arstechnica.com

xxii 422 F.3d 630 (8th Cir. 2005)

xxiii Such measures would have to punish more than just “deliberate misrepresentation” as outlined in Title 17 U.S.C. §512(f)

xxiv Title 17 U.S.C. §102