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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  [ leaky, and it should remain in the copyright law to allow breathing room. Other scholars such as Litman and Samuelson insist on preserving the fair use principles and applying them to digital works for the public’s interests. 5 The fair us rule, which many scholars seem to acknowledge as an important tool for maintaining the balance of copyright, especially in digital works of authorship, was the major issue in most of the recent copyright cases that have been publicized. The rise and fall of Napster, the peer-to-peer file sharing system with great popularity, and surrounding legal developments also concerned the critical question of whether the file sharing activities of the users can be considered a fair use. And it was regarding the application of this fair use rule that digital copyright issues tend to generate disagreements. In A&M Records, Inc., v. Napster, Inc., the focus of the Court’s finding against a fair use was that downloading MP3 files does not transform the copyrighted work, that the users downloading is a commercial use, that the users engage in wholesale copying of the entirety of the work, and that the users’ downloading harms the copyright holders’ attempts to charge for the same downloads. 6 Then the Court addressed Napster’s identified uses of sampling and space- shifting and reached the same conclusion. The traditional fair use analysis that does not tend to recognize simple reproductions of the copyrighted work and ordinary use of a consumer user led to the Napster decision and rationales. Thus, it is important to examine why the fair use rule is at the center of the copyright controversy triggered by digital technology, in what ways decisions in fair use regarding the development of information technology are made, what should be the criteria for fair use analysis, whether the analysis should be different for digital works, and how we should apply the concept of transformative use that becomes increasingly popular standard in fair use analysis. This article will first discuss the significant role of the fair use doctrine in copyright system and how it has been applied in recent copyright cases. Then the article will explore how the notion of productive use and transformative use was developed and adopted, focusing on Sony and Campbell cases, 7 and critically analyze how courts interpret Campbell in defining and applying this concept of the 5 Jessica Litman, D IGITAL C OPYRIGHT (2001); Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised, 14 B ERKELEY T ECH . L. J. 519 (1999). 6 A&M Records, Inc., v. Napster, Inc., 239 F. 3d. 1004 (9th. Cir. 2001). 7 Sony Corp. of America v. Universal Studios, Inc., 464 U.S. 417 (1984), reversing 659 F.2d 963 (9 th Cir. 1981); Campbell v. Acuff-Rose Music. Inc., 510 U.S. 569, 114 S. Ct. 1164 (1994), reversing 972 F. 2d 1429 (6 th . Cir. 1992).

Authors: Woo, Jisuk.
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[
leaky, and it should remain in the copyright law to allow breathing room. Other scholars
such as Litman and Samuelson insist on preserving the fair use principles and applying
them to digital works for the public’s interests.
5
The fair us rule, which many scholars seem to acknowledge as an important tool for
maintaining the balance of copyright, especially in digital works of authorship, was the major
issue in most of the recent copyright cases that have been publicized. The rise and fall of
Napster, the peer-to-peer file sharing system with great popularity, and surrounding legal
developments also concerned the critical question of whether the file sharing activities of the
users can be considered a fair use. And it was regarding the application of this fair use rule that
digital copyright issues tend to generate
disagreements. In A&M Records, Inc., v. Napster,
Inc., the focus of the Court’s finding against a fair use was that downloading MP3 files
does not transform the copyrighted work, that the users downloading is a commercial
use, that the users engage in wholesale copying of the entirety of the work, and that the
users’ downloading harms the copyright holders’ attempts to charge for the same
downloads.
6
Then the Court addressed Napster’s identified uses of sampling and space-
shifting and reached the same conclusion. The traditional fair use analysis that does not
tend to recognize simple reproductions of the copyrighted work and ordinary use of a
consumer user led to the Napster decision and rationales.
Thus, it is important to examine why the fair use rule is at the center of the
copyright controversy triggered by digital technology, in what ways decisions in fair use
regarding the development of information technology are made, what should be the
criteria for fair use analysis, whether the analysis should be different for digital works,
and how we should apply the concept of transformative use that becomes increasingly
popular standard in fair use analysis. This article will first discuss the significant role of
the fair use doctrine in copyright system and how it has been applied in recent copyright
cases. Then the article will explore how the notion of productive use and transformative
use was developed and adopted, focusing on Sony and Campbell cases,
7
and critically
analyze how courts interpret Campbell in defining and applying this concept of the
5
Jessica Litman, D
IGITAL
C
OPYRIGHT
(2001); Pamela Samuelson, Intellectual Property and the Digital
Economy: Why the Anti-Circumvention Regulations Need to be Revised, 14 B
ERKELEY
T
ECH
. L. J. 519
(1999).
6
A&M Records, Inc., v. Napster, Inc., 239 F. 3d. 1004 (9th. Cir. 2001).
7
Sony Corp. of America v. Universal Studios, Inc., 464 U.S. 417 (1984), reversing 659 F.2d 963 (9
th
Cir.
1981); Campbell v. Acuff-Rose Music. Inc., 510 U.S. 569, 114 S. Ct. 1164 (1994), reversing 972 F. 2d
1429 (6
th
. Cir. 1992).


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