Sunday, September 19, 2010


I also thought the readings for this week did a good job of explaining the basics of copyright law in understandable language. I found some of the issues and recommendations in the Section 108 document especially interesting; for example, the need to amend the statute to allow libraries and archives to provide electronic copies of television news programs. I also found Mazzone's article interesting because it touched on a topic that was only briefly mentioned in my copyright class at the law school. I agree that prosecution for copyfraud could act as a deterrent to publishers trying to copyright everything, especially considering the penalty for falsely claiming a patent is $500 per item that is marked falsely with the patent mark (35 USC 292). Nonetheless, I think the government is overreaching as it is and does not currently have the resources to embark on the projects that Mazzone suggests, for example creating a database of public domain works or a special division of the DOJ to pursue copyfraud cases.

I also thought it was interesting that others picked up on the problems with having a fair use doctrine that requires actual litigation to determine whether something is fair use. On the surface it does seem inconvenient that you can not predict whether something is going to be fair use until a court considers the four factors, but I am not sure other approaches to the fair use doctrine are better. For example, in some countries fair use is based on statutory law rather than an equitable balancing of factors, which means if the use is not mentioned in the fair use statute it is not fair use. This has the benefit of allowing some predictions as to whether your use is fair use, but this approach lacks flexibility in allowing new uses to be considered fair use and uses that could arguably fit under one of the enumerated uses but not exactly a listed fair use would still require the expensive and long litigation. On the other hand, the four factors approach provides a broader, more flexible doctrine that allows the court to shape the fair use doctrine to balance the first amendment and copyright as new technologies allow new ways of presenting and using information.

As this relates to some of the things we have previously looked at in the class, I think the copyright law when improperly used can hinder dissemination of information and the ability for people to freely discuss and express ideas, but I think we also need to remember that the purpose of the copyright law is to encourage the progress of knowledge. If we weaken the copyright protections too much in our efforts to make information freely and easily accessible, authors will no longer have the motivation to create new and original works, in which case it won't matter that we have such broad access. I think this is why Mazzone emphasized that he was not suggesting that we weaken copyright protections but rather create protections for the public domain.

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