ABSTRACT
Copyright’s fair use doctrine is increasingly applied to large-scale uses of entire copyrighted works by new digital technologies, such as the Google Books Project. Such technologies – which the Second Circuit recently called ‘utility-expanding’ – aid the public in more efficiently accessing and/or productively using existing copyrighted content. This is new terrain for the fair use doctrine, which has most commonly been applied to the use of a work in the service of new creative expression.
This Article examines the relationship between utility-expanding technologies and fair use. Even though utility-expanding technologies often serve copyright’s policy agenda by enhancing public enjoyment of creative works, these uses sometimes fit uneasily into the requirements of fair use since they can provide a market substitute that harms the copyright owner financially. Providing free use for such technologies can undermine copyright’s overarching goal of providing creators with financial incentives to produce new works. Reflecting this tension, some recent cases have found that a utility-expanding technology was ‘transformative’ and of benefit to the public but not fair use because of market harm to the copyright owner …
Victor, Jacob, Utility-Expanding Fair Use (May 17, 2020). 105 Minnesota Law Review, forthcoming, NYU School of Law, Public Law Research Paper No 20-31.
First posted 2020-09-25 05:21:35
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