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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  XZ protection of the initial author’s rights and profits. 47 The productive use factor, when it first appeared in Sony Court of Appeals, was concerned with the “harm” to a plaintiff by reproduction of the work and increase in access to the work in the context of new technology. 48 The Court’s rationale for denying fair use arguments is that when the use is not productive, the use that increases the access to the work would harm the initial author. The Supreme Court opinion in Sony was also concerned about market harm. While refusing to rely on the dichotomy between productive and non-productive time- shifting that is difficult to be clearly identified, the Court only notes that the statutory language requires consideration of economic consequences of copying, and materials with broader secondary markets will have a broader claim to protection because of the greater potential for commercial harm. 49 But it is in Justice Blackmun’s dissenting opinion that the relationship between the productive use factor and market effect factor is explicitly discussed. Blackmun argues that when the proposed use is an unproductive use, a copyright owner need prove only a potential for harm to the market for or the value of the copyrighted work. 50 Blackmun now only assumes that ordinary use cannot create benefit to the public at large, but states that “when the use is one that creates no benefit to the public at large, copyright protection should not be denied on the basis that new technology that may result in harm has not yet done so.” 51 The Sony dissent clearly considers the productive use factor as associated with the market factor. After Sony, the application of the productive use in lower cases made the market effect factor to be counted twice. 52 When the productive use is equated with non-superceding use, it automatically satisfies the fourth factor. The resulting focus on protecting the first author’s economic interests has an effect of wiping out the first factor of the purpose of use and discounting the fair use balance among the four factors. 53 In Campbell, Court concerned the four factors separately in the analysis, and these factors were considered in relation to the transformativeness of the new parody song. The transformative use appears not only in the first factor analysis, but in the third 47 Bunker, Id . 48 Sony (appeals) at 971. 49 Sony (Supreme) at note 40. 50 Id. at 482. 51 Id. 52 Texaco, supra note 31. Also see Lape, supra note 30 at 717 for relevant analysis. 53 Lape, supra note 30.

Authors: Woo, Jisuk.
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XZ
protection of the initial author’s rights and profits.
47
The productive use factor, when it
first appeared in Sony Court of Appeals, was concerned with the “harm” to a plaintiff by
reproduction of the work and increase in access to the work in the context of new
technology.
48
The Court’s rationale for denying fair use arguments is that when the use
is not productive, the use that increases the access to the work would harm the initial
author. The Supreme Court opinion in Sony was also concerned about market harm.
While refusing to rely on the dichotomy between productive and non-productive time-
shifting that is difficult to be clearly identified, the Court only notes that the statutory
language requires consideration of economic consequences of copying, and materials
with broader secondary markets will have a broader claim to protection because of the
greater potential for commercial harm.
49
But it is in Justice Blackmun’s dissenting opinion that the relationship between
the productive use factor and market effect factor is explicitly discussed. Blackmun
argues that when the proposed use is an unproductive use, a copyright owner need prove
only a potential for harm to the market for or the value of the copyrighted work.
50
Blackmun now only assumes that ordinary use cannot create benefit to the public at
large, but states that “when the use is one that creates no benefit to the public at large,
copyright protection should not be denied on the basis that new technology that may
result in harm has not yet done so.”
51
The Sony dissent clearly considers the productive
use factor as associated with the market factor.
After Sony, the application of the productive use in lower cases made the
market effect factor to be counted twice.
52
When the productive use is equated with
non-superceding use, it automatically satisfies the fourth factor. The resulting focus on
protecting the first author’s economic interests has an effect of wiping out the first
factor of the purpose of use and discounting the fair use balance among the four
factors.
53
In Campbell, Court concerned the four factors separately in the analysis, and
these factors were considered in relation to the transformativeness of the new parody
song. The transformative use appears not only in the first factor analysis, but in the third
47
Bunker, Id
.
48
Sony (appeals) at 971.
49
Sony (Supreme) at note 40.
50
Id. at 482.
51
Id.
52
Texaco, supra note 31. Also see Lape, supra note 30 at 717 for relevant analysis.
53
Lape, supra note 30.


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