Fair Use: Its Application, Limitations and Future

This article undertakes an analysis of strategic framing strategies in the Digital Rights Movement by the movement’s central Social Movement Organization (SMO), the Electronic Frontier Foundation (EFF). Through analysis of a series of interviews with key members of the EFF and analysis of the EFF’s ‘Endangered Gizmos’ campaign in response to the MGM vs Grokster case, this article shows how the organization strategically frames consumers as users’ and fair use in user-centered fashion. In so doing the EFF develops a legitimizing rationale for expanding consumer privileges in copyrighted works. The analysis shows that the user-centered notion of fair use articulates with broader historical and emerging trends in media consumption/use and thus finds accepting audiences both within the movement and outside of it.

SSRN Electronic Journal, 2010

Free speech was once an integral part of copyright law; today it is all but forgotten. At common law, principles offree speech protected those who expressed themselves by using another's expression. Free speech determined whether speakers had infringed a copyright. To prevail on a copyright claim, then, a copyright holder would need to prove that the speaker's use fell outside the scope of permissible speech-or in other words, that the use was not fair. Where uncertainty prevented that proof fair use would protect speakers from the suppression of copyright. Today, however, all this has changed. Copyright has deeply buried any remnants of free speech, redefining the doctrine offair use as a pretext for piracy that aims to excuse infringing conduct. Copyright enforcement has become the norm and fair use the exception, resulting in a presumption against fair-use speech. Uncertainty no longer protects speakers; it damns them. The change-from fair use as a strong right of speech to fair use as a weak excuse-occurred subtly, unintentionally, and without reason. It was a mistake. Quickly becoming widespread, the mistake swiftly eroded speech protections in copyright. If left unchecked, the mistake will become immutable. This Article traces the history offair use from its birth as a strong right of speech to its deterioration into a weak excuse for infringement.

Fordham Intellectual Property Media and Entertainment Law Journal, 1995

We will begin with Dr. Schneider, who has terrific expertise in computers and telecommunications. He will be using a visual presentation to give us some grasp of what the technology is all about before we run off and make legal pronouncements about what it means. So, Bob, without any delay, I would like you to start demonstrating to us what we are supposed to be talking about. DR. SCHNEIDER: I would like to thank the organizers for letting me come to the symposium. The objective of my role in this panel is to describe the elements that comprise interactive communications.

Journalism & Mass Communication Quarterly

2019

Thank you very much for having me here. It is great to be back at the Kernochan Center. My talk will address the adoption of the fair use doctrine into Israeli Law. I will offer Israel as an example that shows that it is possible to adopt the Fair Use doctrine into legal systems outside of the United States while maintaining desired features of the pre-adoption regime. Some of these features tackle the issues that were discussed earlier in this panel, such as the uncertainty and the ex-post concerns that the fair use regime entails.1 Notably, and although I will not expand on this point in this talk, the Israeli example is particularly interesting because the 2007 Copyright Act,2 which “imported” the Fair Use doctrine, was passed after the digital revolution occurred. This timing allowed the Israeli legislature to consider issues that in other countries had to be addressed by the courts ex post facto. Let us begin with some historical perspective. As with the Canadian example3 that ...

2005

Abstract: This Essay describes a social practices approach to the production of creative expression, as a construct to guide reform of copyright law. Specifically, it reimagines copyright's fair use doctrine by basing its statutory text explicitly on social practices. It argues that the social practices approach is consistent with the historical development of the fair use doctrine and with the policy goals of copyright law, and that the approach should be recognized in the text of the statute as well as in judicial applications of fair use.

A Justice-Based Approach for New Media Policy: In the Paths of Righteousness, 2016

All media are new when they appear on the horizon and old by the time another, newer, medium arises. Indeed, the depiction of a medium as new connotes that something in this medium is different that sets it apart from existing media. In this book we will elaborate on the unique features that define new media: their interactivity, their potential to be mobile, their potential to access and deliver infinite amounts of data, and the potential they give users to express themselves in a variety of ways utilizing written words, sounds, and still and moving images and be heard by many others simultaneously. We will then explain why these defining elements of new media carry the opportunity to shift current communica- tion policies from their utilitarian-based approach to a justice-based one.

College & Research Libraries News, 2019

Fordham Law Review, 2009

The U.S. Copyright Claims Board, created in 2020 by the CASE Act, creates a non-judicial administrative venue to resolve copyright infringement claims up to $30,000. Supporters claim it will help “little guy” creators protect their work. Detractors claim that it will increase corporate intimidation and copyright trolling. We surveyed communication and internet scholars to assess appetite for risk when challenged for an appropriate fair use, legally permitted reuse of copyrighted material. We found that the Copyright Claims Board does not serve its stated purpose, because of scholars’ fear of legal entanglements. Nor will it offer scholars a way to protect copyrighted work, because well-informed defendants are most likely to opt out of the venue. We believe the actions of the nascent Copyright Claims Board deserve close scrutiny from communication and internet scholars, particularly because the Copyright Office must report to Congress on its effectiveness after three years.