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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  X^ useful. In the famous Napster decision, the Court of Appeals for the Ninth Circuit regarded the factor of transformativeness as the first prong of the first factor analysis. Considering the purpose and character of the use, the Court asked “whether and to what extent the new work is ‘transformative,’” and concluded that downloading MP3 files does not transform the copyrighted work. 64 In Napster, the transformative use rule was also interpreted to mean the transformativeness of the new work, rather than of the defendant’s use. Even though the Napster users did not have direct economic benefit of any commercial gain, their “saving” the expense of purchasing authorized copies of the music was considered to demonstrate the commercial nature of the use. 65 The way the District Court and the U.S. Court of Appeals for the Second Circuit in Infinity Broadcast Corp. v. Kirkwood vividly show the contrast between the approach that focuses on the transforamtiveness in the work and that focuses on the transformativeness in use. 66 The district court had found that Dial-Up’s use of the remote broadcasts is transformative because they are used for a different purpose than the original broadcasts. While the purpose of the original broadcasts was entertainment, Dial-Up’s use was informational for its clients. But the Second Circuit rejected this purpose-of-use-based approach, by arguing that Dial Up had not altered the broadcasts but merely reproduced them over phone lines. That is how even though the Court found some potential public benefit to Dial-Up, it still held that the use was not fair use because of the absence of the transformativeness. 67 If the transformative use factor focuses not on the users, but on considering whether their hard work deserves fair use defense, it becomes a quasi-moral scheme that implies that the user must earn the fair use right through good behavior. 68 Bunker suggests that a critical error of Judge Leval and his followers in courts is their incorrect focus on the transformation of copyrighted works rather than their broad dissemination, which in Bunker’s opinion, should be the purpose of fair use. 69 In copyright system, hard work of an author does not automatically provide the author with copyright, as found in Feist Publications, Inc. v. Rural Telephone Service Co., which rejected the “sweat of the brow” theory and held that facts are not entitled to copyright just because 64 239 F.3d at 1015. (emphasis original) 65 Id. 66 150 F.3d 104 (2nd Cir. 1999). 67 Id. at 109. 68 Bunker, supra note 46, at 22. 69 Id. at 23.

Authors: Woo, Jisuk.
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X^
useful. In the famous Napster decision, the Court of Appeals for the Ninth Circuit
regarded the factor of transformativeness as the first prong of the first factor analysis.
Considering the purpose and character of the use, the Court asked “whether and to what
extent the new work is ‘transformative,’” and concluded that downloading MP3 files
does not transform the copyrighted work.
64
In Napster, the transformative use rule was
also interpreted to mean the transformativeness of the new work, rather than of the
defendant’s use. Even though the Napster users did not have direct economic benefit of
any commercial gain, their “saving” the expense of purchasing authorized copies of the
music was considered to demonstrate the commercial nature of the use.
65
The way the
District Court and the U.S. Court of Appeals for the Second Circuit in Infinity Broadcast
Corp. v. Kirkwood vividly show the contrast between the approach that focuses on the
transforamtiveness in the work and that focuses on the transformativeness in use.
66
The
district court had found that Dial-Up’s use of the remote broadcasts is transformative
because they are used for a different purpose than the original broadcasts. While the
purpose of the original broadcasts was entertainment, Dial-Up’s use was informational
for its clients. But the Second Circuit rejected this purpose-of-use-based approach, by
arguing that Dial Up had not altered the broadcasts but merely reproduced them over
phone lines. That is how even though the Court found some potential public benefit to
Dial-Up, it still held that the use was not fair use because of the absence of the
transformativeness.
67
If the transformative use factor focuses not on the users, but on considering
whether their hard work deserves fair use defense, it becomes a quasi-moral scheme that
implies that the user must earn the fair use right through good behavior.
68
Bunker
suggests that a critical error of Judge Leval and his followers in courts is their incorrect
focus on the transformation of copyrighted works rather than their broad dissemination,
which in Bunker’s opinion, should be the purpose of fair use.
69
In copyright system,
hard work of an author does not automatically provide the author with copyright, as
found in Feist Publications, Inc. v. Rural Telephone Service Co., which rejected the
“sweat of the brow” theory and held that facts are not entitled to copyright just because
64
239 F.3d at 1015. (emphasis original)
65
Id.
66
150 F.3d 104 (2nd Cir. 1999).
67
Id. at 109.
68
Bunker, supra note 46, at 22.
69
Id. at 23.


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