Copyright and Copy-Reliant Technology
Year: 2009
Type: paratext
Abstract: Part I of this Article introduces the phenomenon of copy-reliant technology by focusing on four significant case studies. The first case study, Field v. Google Inc., centers on the permissibility of automated archiving in the context of text-based search engines. The second case study, Perfect 10, Inc. v. Amazon.com, Inc., centers on the creation and display of thumbnail representations of copyrighted photographs by image-based search engines. The conduct challenged in the third case study, the Google Book Project, relates both to the generation of metadata and to the display of fragments of books as part of a menu of search results. The final case study looks at plagiarism detection software, which also addresses the use of copyrighted works to generate metadata. These case studies illustrate copy-reliant technology in a number of contexts that are further developed in Parts II and III. Part II explores the doctrinal implications of the nonexpressive use of copyrighted works. Traditionally, copyright owners have been able to control significant communicative or expressive uses of their works - such as reproduction, display and performance. In contrast, copy-reliant technologies typically use copyrighted works in a way that is noncommunicative and nonexpressive. A careful review of existing copyright doctrine suggests that the rights of copyright owners do not typically encompass nonexpressive uses of their works. I argue that recognizing a principle of nonexpressive use resolves many questions relating to copy-reliant technologies. It also reconciles many puzzling features of the fair use doctrine more broadly. Part II concludes by addressing the doctrinal incorporation of this principle of nonexpressive use through the application of the fair use doctrine. Part III studies the doctrinal implications of high transaction costs in relation to copy-reliant technologies and the use of opt-out mechanisms to mitigate those transaction costs. It then analyzes the relationship between transaction costs and the form and content of property rights generally, and the relevance of opt-outs to a fair use analysis.
Source: bepress Legal Repository
Author: Matthew Sag
Institutions: DePaul University, Loyola University Chicago
Language: English
Topic: Intellectual Property Law
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W1551277877