Starting in late 2012, and continuing into late 2013, the United States District Court for the Southern District of New York wreaked havoc on the traditional interpretation of the copyright infringement defense known as “fair use.” Two cases stemming from the advent of the Google Books Project are Author’s Guild, Inc. v. HathiTrust and Author’s Guild, Inc. v. Google, Inc. These cases adopted a controversial interpretation of the fair use defense, codified in 17 U.S.C. § 107, when each case determined that the mass digitization of thousands of books constituted fair use merely because the digitization was what is known as “transformative use.”
This Comment will explore the background of the fair use defense, from its common law origins, to its codification in the 1976 Copyright Act, to its application in modern law. Keeping this background in mind will explain why the current legal state of the fair use defense, as propagated by the District Court for the Southern District of New York and the United States Courts Appeals for the Ninth Circuit, is inconsistent with traditional statutory construction principles.
Proposed recommendations to solve legal inconsistencies in Section 107 can come from clarification either from Congress by way of an amendment to this Section, or by a decision from the United States Supreme Court.
Transforming “Transformative Use”: The Growing Misinterpretation of the Fair Use Doctrine,
5 Pace. Intell. Prop. Sports & Ent. L.F.
Available at: http://digitalcommons.pace.edu/pipself/vol5/iss1/3