A. INTRODUCTION

This edition of CommuniK.™ features the fifth and final part of a series about copyright law exceptions that are available to libraries, schools, and archives. This is the second of a two-part article that discusses Section 107 of the 1976 Copyright Act, otherwise known as the “fair use” doctrine.

Fair use serves as the broadest copyright exception available in copyright law, one which is generally applicable to all circumstances. Fair use, however, is a paradox. First, fair use is very difficult to apply properly without experience. Second, while federal courts have decided a number of fair use cases in a way that seems to strengthen fair use, other factors (including a hyperactively litigious content industry) have served to diminish the doctrine’s practical viability.

This article goes beyond a strict interpretive analysis of Section 107. Instead, the article discusses fair use within the context of risk management, including how to analyze a potential fair use situation with a cunning eye that gives equal parts consideration to unlicensed use and the copyright owner’s exclusive rights.

Portions of this article originally appeared in the November/December 2005 edition of Online magazine.

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“Google’s quest to “organize the world’s information” is supposed to make life easier. But the issues surrounding the company’s book search program have complicated many academics’ views of copyright, because they involve many nuances surrounding security, infrastructure and compensation.

“At a debate Feb. 24 hosted by the American Enterprise Institute-Brookings Joint Center for Regulatory Studies, Hal R. Varian, founding dean of the School of Information Management Systems at the University of California at Berkeley, said that the Google project is fulfilling an important service by helping people find texts, oftentimes those that have been out of print for decades.

“Doug G. Lichtman, a law professor at the University of Chicago said that Google unfairly puts a burden on copyright holders by forcing them to have to contact the company to ‘opt out’ if they do not want their books included in the search database. He also asked why the onus should fall on authors or publishers to “opt out” to make sure that Google’s search system isn’t allowing third parties to unlawfully use their works.”

Rob Capriccioso. Google’s Not-So-Simple Side. Inside Higher Ed. Feb. 27, 2006.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.

“Technical glitches by Microsoft and the digital music device makers have hampered Napster Inc.’s ability to close the gap with Apple’s iTunes, the dominant online music service, Napster’s chief executive said on Tuesday.

“There is no question that their execution has been less than brilliant over the last 12 months,” Napster Chairman and Chief Executive Chris Gorog said at the Reuters Global Technology, Media and Telecoms Summit in New York.

“Microsoft Corp., he noted, had to grapple with the complexities of dealing with a number of different services and device makers.”

Adam Pasick. Napster Rues Microsoft, Player Glitches. Yahoo! News. March 1, 2006.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.