Edward Lee (Ohio State University – Michael E. Moritz College of Law) has posted Technological Fair Use (Southern California Law Review, Forthcoming) on SSRN. Here is the abstract:
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The Article proposes a framework tailoring fair use specifically for technology cases. At the inception of the twenty-first century, information technologies have become increasingly central to the U.S. economy. Not surprisingly, complex copyright cases involving speech technologies, such as DVRs, mp3 devices, Google Book Search, and YouTube, have increased as well. Yet existing copyright law, developed long before digital technologies, is ill-prepared to handle the complexities these technology cases pose. The key question often turns, not on prima facie infringement, but on the defense of fair use, which courts have too often relegated to extremely fact-specific decisions. The downside to this ad hoc adjudication of fair use is that it leads to great uncertainty over what is permissible in a way that may retard innovation in speech technologies. This Article addresses this ongoing problem by offering a proposal for courts to recognize a specific type of fair use – technological fair use – and to tailor the four fair use factors accordingly. Technological fair use is supported not only by a synthesis of existing case law, but also, more importantly, by the constitutional underpinnings of the First Amendment and the Copyright and Patent Clause, as well as economic theory.
And from the paper, Lee's summary of his approach:
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Factor one
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a. Is use for new or value-adding purpose of creating, operating, or providing output of a speech technology or application?
b. If so, can a potential public benefit from the technology be reasonably perceived?
c. Identify if use is for creating, operating, and/or providing an output of the technology, and give more leeway to creational/operational uses.
d. Give less weight to commerciality of use unless technology is offered at high fee (may cut against). Some weight to free technologies (may cut in favor).
Factor two
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– nature of copyrighted work has less weight
Factor three
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– Evaluate amount/substantiality of copying in light of purpose in Factor one and along Creation-Operation-Output spectrum
Factor four
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– Evaluate effect on potential market for copyrighted work (and derivatives), and effect on potential market for speech technology
Very interesting paper on an important topic.