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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  _ educational purpose. 18 But the appellate court of Sony, discounting the district court’s “simple commercial/noncommercial distinction,” found that off-the-air home video- recording of broadcast programs was not a productive use, and that the absence of a productive use precluded a finding of fair use. 19 The productive use in the appellate court of Sony was not concerned about the end user’s benefits that can be acquired by their use of the VCR for convenience or increased access, but viewed that the productive use should involve the creation of a new work. The appellate court, citing Seltzer, suggested that the fair use had to do with the second author’s use of the first author’s work to create a new work, and rather than with the mere reproducer who uses it for its intrinsic, ordinary purpose. 20 The court argued that the statute does not list “convenience” or “entertainment” or “increased access” as purposes within the general scope of fair use, 21 and was concerned with the “harm” to a plaintiff by instant reproduction of the work in the same mode and the same purpose of the original and increase in access to the work, particularly in the context of new technology. 22 But the Supreme court put aside the court of appeal’s “productive use” doctrine, stating that the “productive” and “non-productive” distinction may be helpful in some circumstances but that such a distinction could not be “wholly determinative.” 23 The Court also marginalized this rule by placing the discussion, which was very little, at the footnote. The Supreme Court then declared that home recording was a non-commercial activity and therefore presumptively a fair use. The Court again shifted its focus on the commercial-noncommercial dichotomy, and decided that without any direct commercial gain from such activity of time-shifting programs, the use is a fair use. Only Justice Blackmun’s dissenting opinion supported the use of “productive use” guideline. Regarding the conceptualization of the productive rule in Sony courts, the Court of Appeals seems to have used the concept of productive use to mean the potential author’s use of the work to create other materials, rather than the end user’s use of work for diverse purposes. The Supreme Court’s view is more ambiguous. The Court does not explicitly view the productive use as limited to the use resulting in secondary works of authorship. But its rationale for rejecting the productive use factor as a determinative 18 William F. Patry, The Fair Use Privilege, PLI Order No. G4-3760. 19 659 F.2d at 971-71 20 Id..at 970; Leon Seltzer, E XEMPTIONS AND F AIR U SE IN C OPYRIGHT 24 (1978). 21 Id. at 970. (emphasis original) 22 Id. at 971. 23 Sony, 464 U.S. at 455 n. 40.

Authors: Woo, Jisuk.
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_
educational purpose.
18
But the appellate court of Sony, discounting the district court’s
“simple commercial/noncommercial distinction,” found that off-the-air home video-
recording of broadcast programs was not a productive use, and that the absence of a
productive use precluded a finding of fair use.
19
The productive use in the appellate
court of Sony was not concerned about the end user’s benefits that can be acquired by
their use of the VCR for convenience or increased access, but viewed that the
productive use should involve the creation of a new work. The appellate court, citing
Seltzer, suggested that the fair use had to do with the second author’s use of the first
author’s work to create a new work, and rather than with the mere reproducer who uses
it for its intrinsic, ordinary purpose.
20
The court argued that the statute does not list
“convenience” or “entertainment” or “increased access” as purposes within the general
scope of fair use,
21
and was concerned with the “harm” to a plaintiff by instant
reproduction of the work in the same mode and the same purpose of the original and
increase in access to the work, particularly in the context of new technology.
22
But the Supreme court put aside the court of appeal’s “productive use” doctrine,
stating that the “productive” and “non-productive” distinction may be helpful in some
circumstances but that such a distinction could not be “wholly determinative.”
23
The
Court also marginalized this rule by placing the discussion, which was very little, at the
footnote. The Supreme Court then declared that home recording was a non-commercial
activity and therefore presumptively a fair use. The Court again shifted its focus on the
commercial-noncommercial dichotomy, and decided that without any direct commercial
gain from such activity of time-shifting programs, the use is a fair use. Only Justice
Blackmun’s dissenting opinion supported the use of “productive use” guideline.
Regarding the conceptualization of the productive rule in Sony courts, the Court
of Appeals seems to have used the concept of productive use to mean the potential
author’s use of the work to create other materials, rather than the end user’s use of work
for diverse purposes. The Supreme Court’s view is more ambiguous. The Court does not
explicitly view the productive use as limited to the use resulting in secondary works of
authorship. But its rationale for rejecting the productive use factor as a determinative
18
William F. Patry, The Fair Use Privilege, PLI Order No. G4-3760.
19
659 F.2d at 971-71
20
Id..at 970; Leon Seltzer, E
XEMPTIONS AND
F
AIR
U
SE IN
C
OPYRIGHT
24 (1978).
21
Id. at 970. (emphasis original)
22
Id. at 971.
23
Sony, 464 U.S. at 455 n. 40.


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