scholarly journals Defining Fair Use on YouTube: A Guide to Modern Copyright

2021 ◽  
Vol 10 (4) ◽  
Author(s):  
Cole Scott ◽  
John Murnan
Keyword(s):  
Content Analysis ◽  
Case Law ◽  
Copyright Law ◽  
Fair Use ◽  
Court Decisions ◽  
Complex Issue ◽  
Large Complex ◽  
Copyright Laws

Copyright law is a large, complex issue that has found itself at the center of controversy on YouTube. Much of the debate around copyright centers on whether a video is fair use, the exception to copyright laws. There are large problems on YouTube surrounding the exploitation of the Content ID system, and the solutions to these problems often rely on the assumption of clear and defined copyright law, which is far from the case. This led my research into finding out based on the case law, what constitutes fair use on YouTube? Using a content analysis, these complexities of copyright law were able to be broken down into easy-to-understand guidelines. To do this, roughly 30 cases were found using the websites case.law and copyright.gov, and the decision of the case and the reasoning behind it were pulled out to create guidelines based on the copyright case law of court decisions. These guidelines consist of having a license for the copyrighted content, using the content for education, criticism or review, providing significant commentary to shift the focus away from the content, using the content for parody, changing the purpose of the content, or using an insignificant portion of the content. If any of these scenarios are met, then the video will likely not violate copyright. The use of these guidelines could be implemented into YouTubes algorithm, but more likely these guidelines would be easy to follow for creators to know whether or not their video will violate copyright.

scholarly journals Retelling Copyright: The Contributions of the Restatement of Copyright Law

2021 ◽  
Vol 44 (3) ◽  
Author(s):  
Jeanne C. Fromer ◽  
Jessica Silbey
Keyword(s):  
Historical Context ◽  
Case Law ◽  
Copyright Law ◽  
Professional Standards ◽  
Law Reform ◽  
Court Decisions ◽  
The Past ◽  
Dramatic Criticism ◽  
Federal Case ◽  
The Subject

The provisions at issue in the draft Restatement of Copyright Law on which ALI membership will vote at ALI’s upcoming annual meeting are central to copyright doctrine and have been the subject of numerous court decisions over the past several decades of technological and industry change: originality, fixation, categories of copyrightable subject matter, the idea-expression distinction, and authorship and ownership.  This abundance of legal activity on copyright law demonstrates the value to the profession of this project retelling copyright.  In contrast to the dramatic criticism of this Restatement project alleging political capture or illegitimate law reform, the draft’s provisions are routine and straightforward.  They will surprise no one and are almost boring in their adherence to and synthesis of the copyright statute and judicial interpretations of it. Far from being radical or ill-advised, the Restatement of Copyright Law is a reasonable and welcome addition to the work of the ALI. Part I of this Article situates the current Restatement of Copyright Law in the historical context of other ALI projects, drawing parallels in their purposes, processes, and political tensions. Part II describes the controversy over a “retelling” of copyright law as misguided insofar as it fails to account for the practice of interpretation as part of the practice of law that is constrained by professional standards.  Part III describes the analysis and exposition of the provisions of the draft portions of the Restatement of Copyright Law presented to the ALI membership for discussion and vote this year as unremarkable but also beneficial, achieving the ALI’s goals of clarification and simplification of the sprawling federal case law interpreting and applying the 1976 Copyright Act.

It’s Bigger Than Hip-Hop: Sampling and the Emergence of the Market Enhancement Model in Fair Use Case Law

2018 ◽  
Vol 96 (2) ◽  
pp. 598-622 ◽  
Author(s):  
P. Brooks Fuller ◽  
Jesse Abdenour
Keyword(s):  
Hip Hop ◽  
Original Work ◽  
Case Law ◽  
Copyright Law ◽  
Fair Use ◽  
Use Case ◽  
Market Impact ◽  
Market Participation ◽  
Lower Courts ◽  
Rich History

“Sampling” copyrighted works to create new expression has a rich history in creative culture, particularly in hip-hop music, a genre that values revision and recontextualization. However, courts are mixed on whether sampling should be considered fair use. Many courts have found that sampling harms the original artist’s ability to license copyrighted material, thereby diminishing the work’s marketability. But some courts recognize that sampling can enhance the market for the original work. The present study explores the tension between these opposing fair use models—what we call the “pure market substitute” and “market enhancement” models—currently percolating in lower courts. Through an analysis of cases involving hip-hop sampling and similar practices, we argue that the “market enhancement” model, which considers cultural and audience characteristics that impact marketability, better serves the goals of copyright law and should be more widely adopted. We further recommend that courts consider three factors when analyzing market impact in fair use sampling cases: provable effects of the sample on the market for the original work, the nature and duration of the original author’s market participation, and the similarity between markets for the original and secondary works.

scholarly journals Technology is Changing What's "Fair Use" in Teaching

2002 ◽  
Vol 10 ◽  
pp. 4 ◽  
Author(s):  
Linda Howe-Steiger ◽  
Brian C. Donohue
Keyword(s):  
Digital Technologies ◽  
Case Law ◽  
Copyright Law ◽  
Fair Use ◽  
The Internet ◽  
Applied Potential ◽  
Legal Requirements ◽  
Web Based ◽  
Teaching And Research ◽  
Potential Impact

The Doctrine of Fair Use was established by the courts to exempt certain activities such as teaching and research from the legal requirements of the copyright law. Before the 1976 Revision of the Copyright Act, only two cases were brought against teachers for copyright infringements. In both cases the teachers lost because their extensive copying was found to impact the copyright owner's market for legally published copies. Although the 1976 Act explicitly recognizes the existence of potentially Fair Uses, the act makes application of the principle highly situational. Classroom Guidelines attached to the Act make application even more murky and constrained. After 1976 photocopy technology and the advent of the coursepack began a trend towards circumscribing situations in which Fair Use may be applied. Potential impact on a new, lucrative market for sale of rights to copy portions of books and journals appears to dominate contemporary case law. Desktop publishing and Internet and web-based teaching, the authors believe, will further erode traditional applications of Fair Use for educational purposes. They argue that instructors and researchers should assume that there is no Fair Use on the Internet. Guidelines are provided for faculty and others considering dissemination of potentially copyrighted materials to students via digital technologies.

scholarly journals Decoding Academic Fair Use: Transformative Use and the Fair Use Doctrine in Scholarship

2019 ◽  
Vol 3 (1) ◽  
Author(s):  
Matthew D. Bunker
Keyword(s):  
Case Law ◽  
Copyright Law ◽  
Fair Use ◽  
Legal Doctrine ◽  
On Line ◽  
Scholarly Attention

Fair use in copyright law is an enormously complex legal doctrine.  Although much scholarly attention has been paid to fair use in the context of teaching -- particularly in on-line education -- relatively little research exists on the problem of fair use in scholarship. This article analyzes reported federal cases on fair use in scholarly contexts, with a particular emphasis on the transformative use doctrine that has become enormously influential in fair use determinations. The article explores insights from this body of case law that may assist future scholars wishing to fairly use copyrighted expression in their scholarship.

scholarly journals Breakout Session: New and Notable in Copyright Law. Presented by Nathaniel Edwards, counsel, Lewis, Roca, Rothgerber, and Christie.

2018 ◽  
Vol 2 (1) ◽  
Author(s):  
Susan E. Beck
Keyword(s):  
Case Law ◽  
Copyright Law ◽  
Fair Use ◽  
Educational Institutions ◽  
Breakout Session ◽  
New Developments ◽  
Federal Case ◽  
Office Procedures

U.S. copyright law is a continually changing landscape, especially for educators and librarians. To help update those working in educational institutions, this report showcases new developments in federal case law regarding fair use. The three cases profiled show the courts current tendency to favor fair use. Other topics presented comprise new U.S. Copyright Office procedures for designating DMCA agents and ways to best respond to demand letters sent by photo licensing houses.

Information Technology and Fair Use

2011 ◽  
Vol 2 (1) ◽  
pp. 1-12
Author(s):  
Lesley S. J. Farmer
Keyword(s):  
Information Technology ◽  
Distance Learning ◽  
Resource Sharing ◽  
Learning Opportunities ◽  
Copyright Law ◽  
Fair Use ◽  
Legal Regulations ◽  
Central Concept ◽  
Copyright Laws ◽  
Intellectual Production

Intellectual pursuit and the recognition of ideas is a central concept. Copyrights protect the rights of intellectual creators while balancing those rights with the needs for access. As technologies have expanded, and production has become more sophisticated, the legal regulations surrounding their use have become more complex. With the advent of the interactive web 2.0 and increased resource sharing, as well as growth in distance learning opportunities, complying with the legal use of information technology can be daunting. In any case, leaders and other educators should be aware of the more important aspects of technology-related copyright laws and regulations. This article provides an overview of copyright law and fair use for educational research purposes. It explains different options for intellectual production and sharing, and notes administrative actions to support copyright compliance.

Digital Copyright

2017 ◽  
Author(s):  
Jessica Litman
Keyword(s):  
Motion Picture ◽  
General Public ◽  
File Sharing ◽  
Peer To Peer ◽  
Copyright Law ◽  
Information Policy ◽  
Free Society ◽  
Digital Copyright ◽  
Exchange Of Information ◽  
Copyright Laws

The general public is used to thinking of copyright (if it thinks of it at all) as marginal and arcane. But copyright is central to our society’s information policy and affects what we can read, view, hear, use, or learn. In 1998 Congress enacted new laws greatly expanding copy owners’ control over individuals’ private uses of their works. The efforts to enforce these new rights laws have resulted in highly publicized legal battles between established media, including major record labels and motion picture studios, and upstart internet companies such as MP3.com and Napster.In this book, I question whether copyright laws crafted by lawyers and their lobbyists really make sense for the vast majority of us. Should every interaction between ordinary consumers and copyright-protected works be restricted by law? Is it practical to enforce such laws, or expect consumers to obey them? What are the effects of such laws on the exchange of information in a free society? My critique exposes the 1998 copyright law as an incoherent patchwork. I argues for reforms that reflect the way people actually behave in their daily digital interactions.The Maize Books edition includes both an afterword written in 2006 exploring the rise of peer-to-peer file sharing and a new Postscript reflecting on the consequences of the Digital Millennium Copyright Act as it nears its twentieth birthday.

Argumentation of the Courts and Contemporary Legal Scholarship

2017 ◽  
Author(s):  
Adrian Kuenzler
Keyword(s):  
Case Law ◽  
Copyright Law ◽  
Court Case ◽  
Supply Side ◽  
Resale Price Maintenance ◽  
Goods And Services ◽  
Supreme Court Case ◽  
Resale Price ◽  
The One ◽  
Price Maintenance

This chapter analyzes existing U.S. Supreme Court case law with respect to, on the one hand, antitrust’s minimum resale price maintenance plans, bundling and tying practices, as well as refusals to deal, and, on the other hand, trademark law’s dilution, postsale, sponsorship, and initial interest confusion doctrines, including design patent and selected areas of copyright law. It demonstrates that courts, based on the free riding hypothesis, have come to protect increasing amounts of artificial shortage of everyday consumer goods and services and corresponding incentives to innovate. Through the preservation of such values, antitrust and intellectual property laws have evolved into “dilution laws” and have focused, almost exclusively, on the refurbishment of the technological supply side of our present-day digital economies rather than also on the human demand side of “creative consumption.”

Digital Repatriation

2018 ◽  
pp. 530-552
Author(s):  
Alex Perullo
Keyword(s):  
Country Of Origin ◽  
Indigenous Communities ◽  
Copyright Law ◽  
Fair Use ◽  
Digital Collections ◽  
Limited Access ◽  
Local Space ◽  
The Creation

This essay makes two points about digital collections. The first recognizes problems that emerge as archives present indigenous content online. In uploading indigenous songs, speeches, and documents, an archive allows that material to move from a local space with limited access to an international repository with many points of access. This chapter examines conflicts that can occur with this action, including those involving copyright law, fair use, and ethics. A second point of this chapter revolves around technology and repatriation. If repatriation means the return of material to a country of origin, then online archives never fully commit to this task. The material typically remains preserved on servers and in its original forms away from indigenous communities. Despite these ethical, legal, and technological concerns, archives should encourage the creation of digital collections as part of repatriation given the desire by many indigenous communities to preserve and promote their traditions.

Revisiting the risk of undesired appeal in investment treaty arbitration: is deference to the tribunal’s award still less likely in the ICSID context?

2021 ◽  
Author(s):  
Alexander J Marcopoulos
Keyword(s):  
Ad Hoc ◽  
De Novo ◽  
Case Law ◽  
Court Decisions ◽  
Investment Treaty ◽  
Investment Treaty Arbitration ◽  
The Way

Abstract Although they are generally not subject to appeal the way court decisions typically are, investor-State arbitration awards can be reviewed—and potentially set aside—in a number of ways and on various bases. In this respect, investor-State arbitration under the auspices of ICSID is notable in that it provides a self-contained system for the review of arbitral awards by ICSID-appointed ad hoc committees. In the period 2000–2010, this feature of the ICSID system attracted criticism as ad hoc committees appeared to be overreaching in their review of arbitral awards, exercising less deference to the tribunal’s decisions than what would be expected given the narrow bases for setting aside an award under the ICSID Convention. This article revisits the issue 10 years later, exploring whether ICSID practice has evolved in these areas and whether there remains a greater risk of unexpected de novo review by ICSID ad hoc committees. Looking at recent ICSID annulment decisions as well as the case law of arbitration-friendly jurisdictions, the article concludes that although the ICSID ad hoc committees have recently shown more restraint, they continue to interfere more with the tribunal’s reasoning and decisions than many courts exercising the same function.

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