Copyright's Digital Dilemma Today: Fair Use or Unfair Constraints? Part 2: The DMCA, the TEACH Act and Other E-Copying Considerations

摘要

E-copying, as we discussed in the first part of this article (Bulletin of the American Society for Information Science and Technology, v. 30 (1)), continues to be addressed by the basic rules of copyright, and new technology does not change established law. As such, fair use will not justify the reproduction in entirety of millions of copy-lighted works. But exactly what are the parameters of fair use today? The 9th Circuit Court of Appeals in the long-running case of Kelly v. Arriba Soft recently provided a partial answer. Here, the owner of copyrighted photographs had sued the operator of a search engine for posting thumbnail images of the works in its search results. The trial court found fair use here on the basis that the search results were transformative and functional for a different purpose - cataloging content on the Internet. But the trial court, and initially the appeals court, also found that an additional use by the defendant - inline linking to and framing of full-sized images - did in fact infringe upon the photographer's exclusive right to display the copyrighted work publicly and was not protected by fair use.