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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^ serve the public interest. But individual users’ use and creativity in the use, which seem to play the central role in the interactive digital environment, have not received proper attention. I argued for acknowledging transformativeness and creativity in the individual users’ activities in interpreting transformative rule. Then what would be a different approach to digital works of authorship, especially regarding the peer-to-peer technology and what would be a possible result? If the new way of interpreting and applying the transformative use rule had been introduced, the Court in Napster might have dealt with somewhat different questions. The critical questions would include whether the file sharing service allows something that previous technology such as CDs could not make available; what kind of new user activities are possible, in addition to listening to music; does it allow a search function, sampling, browsing before purchasing to buy, a community, interactive communication, emotional interaction, transforming exercises with music files for her own killing time, or any innovative activities, etc.; whether all of these were adding something new to the music environment or not; etc. What would be the answers to the above questions, and what kind of a finding would they lead the court to make, remains to be seen. And there would be many other questions that could help us determine whether a particular kind of use is “transformative” or not, and whether there is something new in the ways in which the users use and interact with the works. But what can be assured by this approach is an opportunity to explore in reality, before stifled by legal interventions, whether the new service available by peer-to-peer technology makes activities available that was not possible before but deserves a room in the constantly changing information environment for the public benefit, such as, whether the new distribution and sharing system makes music fans more informed consumers, makes the users become more expressive and rational by enjoying more information, whether they could as a result provide better feedback, whether the industry then could become more responsive to the users, whether they could use the music for more emotional and intimate communication, whether the quality of life of the public could be substantially enhanced, etc. 102 Copyright law has faced great challenges in a rapidly changing environment, and it will continue to do so, with greater speed and intensity. But despite some scholar’s progressive and provocative arguments, it is difficult to change the whole system at this moment, let alone discarding it. Interpreting the transformative use rule in 102 Vaidhyanathan, supra note 93, at 180.

Authors: Woo, Jisuk.
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Y^
serve the public interest. But individual users’ use and creativity in the use, which seem
to play the central role in the interactive digital environment, have not received proper
attention.
I argued for acknowledging transformativeness and creativity in the individual
users’ activities in interpreting transformative rule. Then what would be a different
approach to digital works of authorship, especially regarding the peer-to-peer
technology and what would be a possible result? If the new way of interpreting and
applying the transformative use rule had been introduced, the Court in Napster might
have dealt with somewhat different questions. The critical questions would include
whether the file sharing service allows something that previous technology such as CDs
could not make available; what kind of new user activities are possible, in addition to
listening to music; does it allow a search function, sampling, browsing before
purchasing to buy, a community, interactive communication, emotional interaction,
transforming exercises with music files for her own killing time, or any innovative
activities, etc.; whether all of these were adding something new to the music
environment or not; etc.
What would be the answers to the above questions, and what kind of a finding
would they lead the court to make, remains to be seen. And there would be many other
questions that could help us determine whether a particular kind of use is
“transformative” or not, and whether there is something new in the ways in which the
users use and interact with the works. But what can be assured by this approach is an
opportunity to explore in reality, before stifled by legal interventions, whether the new
service available by peer-to-peer technology makes activities available that was not
possible before but deserves a room in the constantly changing information environment
for the public benefit, such as, whether the new distribution and sharing system makes
music fans more informed consumers, makes the users become more expressive and
rational by enjoying more information, whether they could as a result provide better
feedback, whether the industry then could become more responsive to the users,
whether they could use the music for more emotional and intimate communication,
whether the quality of life of the public could be substantially enhanced, etc.
102
Copyright law has faced great challenges in a rapidly changing environment,
and it will continue to do so, with greater speed and intensity. But despite some
scholar’s progressive and provocative arguments, it is difficult to change the whole
system at this moment, let alone discarding it. Interpreting the transformative use rule in
102
Vaidhyanathan, supra note 93, at 180.


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