In the golden age of copyright only a few years ago, the old adage "good fences make good neighbors" held true: Copyright laws and fair use doctrine created reliable boundaries of acceptable behavior. Copyright holders and copyright users had reached an accommodation. Fair use met the needs of each, allowing users of copyrighted material to reproduce materials in certain situations and also encouraging copyright owners to innovate by protecting against unlimited copying.
And then one day (well, over the course of a few years, actually), digital technology upset this balance by providing users with the ability to obtain data and create multiple copies at almost no cost of time, money, or effort. Industrial interests were threatened by the independence that consumers had gained through digital and Web technology. They longed for the days when they were highly valued and highly compensated. When worthy adversaries like Napster appeared, they filed suit. And when their interests were violated they lobbied vigorously for protection, proposing legislation such as the Digital Millennium Copyright Act (DMCA) and the Uniform Computer Information Transactions Act (UCITA). DMCA became federal law in 1998, while UCITA has followed a more circuitous path through the state legislatures. But do the DMCA and UCITA merely provide traditional protections to copyright holders of digitized and Web content'? Or do they, in fact, extend the power of copyright holders beyond previous bounds and enc roach on the rights of the consumer?
Act I, Scene I: Back in the Day
Fair use balances the rights of copy right owners (authors, music publishers, movie studios, etc.) with those of users of copyrighted material (researchers, students, journalists, the public). It permits reproduction and other use of copyrighted material for certain purposes, such as research, criticism, and teaching, and under certain circumstances. The fair use guidelines that appear in the copyright law were not always so formally codified; they were built up gradually out of case law. In 1976, the last time copyright law was significantly revised (prior to the DMCA), these guidelines, which govern fair use decisions, were recognized as part of the law. However, enshrining fair use guidelines in USC (United States Code) Title 17 has not by any means made deciding fair use clear-cut. Plenty of room remains for interpretation. In fact, over the years, the Supreme Court has heard more cases involving fair use than any other area of copyright law. (1)
In days of yore, in the print/analog world, a sort of "fair use equilibrium" had been achieved. Both copyright owners and users generally recognized what was permissible. Guidelines governing decisions about fair use pose four questions, with each answer tilting the balance either for or against fair use. The resulting fair use "score" guides the decisions of researchers, students, librarians, journalists, and other users of copyrighted material. And, if an infringement suit is brought, the courts consider this score in making their determination.
The four questions of the fair use test are:
1. What is the "purpose and character" of the use? Higher points for educational, lower for commercial.
2. What is the nature of the work? Higher points for nonfiction, lower for fiction; higher points for published, lower for unpublished.
3. How much of the copyrighted work is being used? Higher points for brief excerpts, lower for whole chapters.
4. What is the effect of the use on the market for the work? Higher points for spontaneous classroom use of out-of-print material; lower for assigned reading from an in-print textbook.
Act I, Scene II: Star-Crossed User Smitten with MP3, Exhibits Tragic Lack of Judgment ... and Seals His Fate?
While these guidelines worked well with textual information, newly available alternative formats have influenced learning styles. …