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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  Y] it becomes much harder to attract an audience or a market. 94 The recent development and widespread use of peer-to-peer technology drastically changes the information environment once again by increasing its interactivity even further. The system that is more open, interactive, decentralized, and ungovernable, is posing yet another challenge to the copyright system that was developed with another particular kind of information technology. The challenge, furthermore, does not stop in the copyright law, or even in the larger legal realm. Despite the court decisions regarding Napster and even “public spectacles of (its) torture,” 95 the world little notes nor long mourns the passing of Napster of sixty-five million users. 96 As Napster died, it merely yielded space for newer and better technologies of competitors more capable of meeting the current needs of users, who have now found other, better opportunities. 97 Thus, Lessig’s statement that architecture is a kind of law and it determines what people can and cannot do is a very pertinent description of the reality. 98 Although some critics such as Ku declared that copyright is no longer needed for digital works, because the economics of digital technology undercuts prior assumptions about the efficacy of a private property regime for information, scholars still have attempted to incorporate this kind of circumstances to the existing copyright system. 99 Useful suggestions have been derived from their focus on the fundamental purpose of copyright, that is, the public benefit and public domain. Fair use, and especially newly established principle of transformative use, seem to play a critical role in the copyright discussion. An analysis of Bunker post-Campbell cases shows that the presence or absence of transformativeness is closely correlated to the overall result of the fair use analysis. 100 Benefits of dissemination and availability of, and access to, works of authorship that are missing from the current application of transformative use were noted by some scholars, 101 but their focus remain on the larger class of uses that may 94 Id. 95 Albert Z. Kovacs, Quieting the Virtual Prison Riot: Why the Internet’s Spirit of "Sharing" Must Be Broken, 51 D UKE L. J. 753 (2001) . 96 Llewellyn Joseph Gibbons, Napster: The Case For the Need For a Missing Direct Infringer, 9 Villanova Sports and Entertainment Law Journal 57, 85 (2002). 97 Id. 98 Lessig, supra note 4, at 58-59. 99 Ku, supra note 84. 100 Bunker, supra note 46, at 18. 101 See Lape, supra note 30, at 712-713, Bunker, supra note 46; Benkler, supra note 44.

Authors: Woo, Jisuk.
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background image
Y]
it becomes much harder to attract an audience or a market.
94
The recent development
and widespread use of peer-to-peer technology drastically changes the information
environment once again by increasing its interactivity even further. The system that is
more open, interactive, decentralized, and ungovernable, is posing yet another challenge
to the copyright system that was developed with another particular kind of information
technology. The challenge, furthermore, does not stop in the copyright law, or even in
the larger legal realm. Despite the court decisions regarding Napster and even “public
spectacles of (its) torture,”
95
the world little notes nor long mourns the passing of
Napster of sixty-five million users.
96
As Napster died, it merely yielded space for
newer and better technologies of competitors more capable of meeting the current needs
of users, who have now found other, better opportunities.
97
Thus, Lessig’s statement that architecture is a kind of law and it determines
what people can and cannot do is a very pertinent description of the reality.
98
Although
some critics such as Ku declared that copyright is no longer needed for digital works,
because the economics of digital technology undercuts prior assumptions about the
efficacy of a private property regime for information, scholars still have attempted to
incorporate this kind of circumstances to the existing copyright system.
99
Useful
suggestions have been derived from their focus on the fundamental purpose of
copyright, that is, the public benefit and public domain. Fair use, and especially newly
established principle of transformative use, seem to play a critical role in the copyright
discussion. An analysis of Bunker post-Campbell cases shows that the presence or
absence of transformativeness is closely correlated to the overall result of the fair use
analysis.
100
Benefits of dissemination and availability of, and access to, works of
authorship that are missing from the current application of transformative use were
noted by some scholars,
101
but their focus remain on the larger class of uses that may
94
Id.
95
Albert Z. Kovacs, Quieting the Virtual Prison Riot: Why the Internet’s Spirit of "Sharing" Must Be Broken, 51
D
UKE
L.
J. 753 (2001)
.
96
Llewellyn Joseph Gibbons, Napster: The Case For the Need For a Missing Direct Infringer, 9
Villanova Sports and Entertainment Law Journal 57, 85 (2002).
97
Id.
98
Lessig, supra note 4, at 58-59.
99
Ku, supra note 84.
100
Bunker, supra note 46, at 18.
101
See Lape, supra note 30, at 712-713, Bunker, supra note 46; Benkler, supra note 44.


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