Mary Minow: December 2007 Archives
In general, fair use has not suffered the way the public domain has, even though a lot of the same forces like the DMCA and licensing law are at work. Courts, for the most part, have been reasonable and consistent when applying the fair use factors. Most important, there are well-heeled companies and individuals who are willing to defend fair use rights, something that's not always the case for public domain issues. For example, thanks to Google, there are clearer rules about search engines, thumbnails (small low-resolution reproductions of images) and caching (when a search engine saves information from a web page for future reference). And for those who appreciate fair use precedents for artwork, we have to thank appropriation artist Jeff Koons, who after several fair use losses -- Rogers v. Koons, United Feature Syndicate, Inc. v. Koons, and Campbell v. Koons -- finally won one (Blanch v. Koons) as genuinely transformative use. As
As we point out on the site, you never know for sure if something is fair use until a court rules on the matter. So sometimes fighting the battle is important. I've been tracking legal costs in a blog at Nolo called What Price Justice? I'm not sure people are really aware—at least until they walk into a lawyer's office—how out of control legal costs have gotten.
As for the use of copyrighted materials in search engines, the Ninth Circuit even went so far as to say that “[A] search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work.” (Perfect 10 v Amazon). That’s a pretty strong statement and one that should make Google happy. And also—again thanks to Google’s efforts—it’s a fair use to display a cached website (a temporarily stored archival copy) in search engine results. In the music world, there haven’t been any surprises. It didn’t shock anyone when the courts ruled that downloading songs without authorization is not a fair use.
Mary Minow is a consultant with LibraryLaw.com on copyright, privacy and free speech issues.
Welcome to our new blog at the Stanford Copyright and Fair Use site. We just added a number of RSS feeds to our CURRENT tabs. Featured cases are cases in the news that Justia has chosen to supply readers with the full text of district court filings. Readers can subscribe to updates on all the featured cases, or on inidivual cases. Dockets are new filings in the district courts, categorized under "copyright" in the PACER system. Legislation is a list of pending legislation, listed by the Copyright Office and linked to opencongress.org, which shows current status of the legislation, and links to the legislation full text, news and blog posts when available. Regulations are Federal Register notices from the Copyright Office and the Copyright Royalty Board, LIbrary of Congress, collected by the Justia Regulation Tracker. Articles are primarily law review articles - coming from SSRN (search term "copyright") and Tarleton Law Library Current Copyright Literature, and more sources may be added later. News is a simple "copyright" keyword search using Google news for now, and Blogs are entries from hand selected blogs that are especially strong on copyright issues, from various viewpoints.
Thanks, Nick, Dan, Vasu
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