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An Orphan Works Affirmative Defense To Copyright Infringement Actions, Jerry Brito, Bridget Dooling
An Orphan Works Affirmative Defense To Copyright Infringement Actions, Jerry Brito, Bridget Dooling
Michigan Telecommunications & Technology Law Review
Laurence Peter once said that "[o]riginality is the fine art of remembering what you hear but forgetting where you heard it." Yet that clever quip is itself unoriginal. Although there may be nothing new under the sun--the arrangement of different bits of existing cultural matter in new and interesting combinations is the source of much originality. Yet today much of our cultural raw material is outside the reach of creators because of the orphan works problem. This problem renders untouchable a large swath of existing artistic, literary, and other works because if a work's copyright owner cannot be found to …
God In The Machine: A New Structural Analysis Of Copyright's Fair Use Doctrine, Matthew Sag
God In The Machine: A New Structural Analysis Of Copyright's Fair Use Doctrine, Matthew Sag
Michigan Telecommunications & Technology Law Review
Recognition of the structural role of fair use has the potential to mitigate some of the uncertainty of current fair use jurisprudence. The statutory framework for fair use both mitigates and causes uncertainty. It mitigates uncertainty by providing a consistent framework of analysis the four statutory factors. However, when judges apply the statutory factors without articulating or justifying their own assumptions, they increase uncertainty. The statutory factors mean nothing without certain a priori assumptions as to the scope of the copyright owner's rights. A more stable and predictable fair use jurisprudence would begin to emerge if those assumptions were made …