Explaining why fair use allows him to lift photographs from websites and insert them into his judicial opinions, Judge Richard Posner (U.S. Court of Appeals for the Seventh Circuit) says: “It’s not as if we’re selling our opinions in competition with a photographer. Using the photo in a judicial opinion couldn’t conceivably be hurting the copyright holder.”
If only fair use law were so straightforward for the rest of us!
Ben Wright makes the excellent point that disabling Megaupload should not result in the disappearance of non-infringing files that users have uploaded.
Peter Menell (UC Berkeley) has a short interesting piece called Jumping the Grooveshark: A Case Study in DMCA Safe Harbor Abuse. From the abstract:
This commentary examines the controversy over Grooveshark, an on-demand music streaming service that has provided access to much of the catalogs of the major record labels without licenses from three of the four majors. It raises questions about how such reliable access could have been sustained under the Digital Millennium Copyright Act’s notice and take-down regime and highlights real problems plaguing legitimate commerce in the digital music marketplace.
Haochen Sun (University of Hong Kong) has an interesting paper on Fair Use as a Collective User Right. From the abstract:
This Article puts forward a new theory that reconceptualizes fair use as a collective user right in copyright law. It first argues that the fair use doctrine has not yet unleashed its full potential in protecting the public interest. The failure is caused by a firmly ingrained notion in copyright law that treats fair use as an affirmative defense against allegations of copyright infringements. Such a fixed characterization of fair use has led legislators and judges to define it as merely an individual right enjoyed by each user of copyrighted works. This characterization has also lead to a wide range of harms to the public interest in the free flow of information and knowledge.
Against this backdrop, this Article explores the ways in which fair use can be revitalized to protect the public interest. It argues for repudiating the narrow-minded characterization of fair use as an individual right. It then proposes that fair use should instead be redefined as a collective right held by the public, which facilitates and enhances participation in communicative actions in what I call intangible public space. From this perspective, section 107 of the Copyright Act should be read as conferring a collective right to fair use upon members of the public. Moreover, this Article shows the power of the collective right to fair use in generating a new legal approach that will enrich copyright adjudication and policy-making discourse for protecting the public interest in the digital age.
Book talk on Thursday, January 26 at 4:30 pm at McGill University.
A lively discussion on Russia Today’s Cross Talk about SOPA: Jason Mazzone (Brooklyn Law School), Daniel Castro (Information Technology and Innovation Foundation) and Wayne Rash (eWEEK Labs).
Interviewed here by Marketplace Tech about Megaupload.
Interesting discussion by Copylaw of contractual issues in determining who owns the rights in e-books.
John Mark Ockerbloom has a great list of five things we can do in the U.S. to build the public domain.
Heather Wicht (University of Colorado) has an interesting article on The Evolution of E-books and Interlibrary Loan in Academic Libraries. Here is the abstract:
As academic libraries add electronic monographs (e-books) to their collections in increasing numbers, they are frequently losing the ability to lend this portion of their collections via Interlibrary Loan (ILL) due to licensing restrictions. Recently, new options have emerged as alternatives to traditional ILL for e- books. These options introduce new opportunities for collaboration across library departments and with- in consortia. This article discusses the changing nature of resource sharing as related to e-books, ex- amines e-book lending capabilities as they currently exist, and presents alternative models to traditional ILL, including short-term lending, purchase on demand and print on demand.
