Law Commons^™

Comments On Preliminary Draft 9, Shyamkrishna Balganesh, Jane C. Ginsburg, Peter S. Menell

Faculty Scholarship

We are writing to offer our views on Preliminary Draft No. 9 (“PD9”) and express our deep and persistent concern about the direction and methodology that the Project continues to take, which we have sought to address and remedy at multiple points over the last several years. The elements of PD9 that we describe below are, in our view, particularly striking illustrations of the problems that we have previously identified. The gravity and salience of PD9’s problems are borne out in the comments of Judge Pierre Leval, who describes elements of the draft as requiring “a substantial editing and rewriting.” …

Comments On Alrc Discussion Paper 79, Copyright And The Digital Economy, June M. Besek, Jane C. Ginsburg, Philippa Loengard

Faculty Scholarship

We provide these comments in connection with the Australian Law Reform Commission’s ongoing study of copyright and the digital economy, and in particular its request for comments on the recommendations put forth in its Discussion Paper 79 (June 2013). We focus on US law, and how the US experience bears on the possibility of an open-ended uncompensated "fair use" type exception in Australia, and other related issues.

The fair use doctrine in the US provides great flexibility, but that flexibility in many instances comes at the cost of certainty and predictability. We are not suggesting that reasonable judgments cannot be …

The Public's Right To Fair Use: Amending Section 107 To Avoid The 'Fared Use' Fallacy, Wendy J. Gordon, Daniel Bahls

Faculty Scholarship

Under provocative titles like "Fared Use"¹ and "The End of Friction,"² commentators argue about whether or not the copyright doctrine of fair use³ should exist in a world of instantaneous transactions. As collecting societies such as the Copyright Clearance Center have become more powerful, and technologies like cellular phones and the internet have made it possible to purchase digital copies by dialing a number or clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. The Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present …

Old Lyrics, Knock-Off Videos, And Copycat Comic Books: The Fourth Fair Use Factor In U.S. Copyright Law, Gregory M. Duhl

Faculty Scholarship

This article examines the fourth fair use factor in copyright law in cases in which the unlicensed use benefits, or has no effect on, the copyright holder's market. It proposes a two-part framework for these cases. If the unlicensed use is transformative or public, and the use does not harm the copyright holder's market, the copyright holder's economic expectancy is protected, and the user should not have to pay damages, analogous to the law of eminent domain. In cases in which the unlicensed use is private, the court should protect the rights of the copyright holder with damages, even if …