Over the past week, much has been written about GoldieBlox's parody of the Beastie Boys song "Girls." For those who haven't heard, GoldieBlox, maker of toy building sets targeted at girls, made a video promoting their product, which went viral (as of this blog post, it has over 8 million views on YouTube). Beastie Boys found out, they cried copyright infringement, and GoldieBlox went to court to ask the court to declare that this use of "Girls" is fair use, and therefore not copyright infringement.
Everyone, but especially copyright reformers, should look to more than fair use to protect legitimate uses of copyrighted works. While fair use is a vital doctrine, it should not be, and never has been, the only way to protect users from spurious claims of infringement.
When there is a contested copyright issue, many legal observers--including copyright reformers--immediately jump to a fair use analysis without first considering whether a use is non-infringing for other reasons. As a friend of fair use, I want to give it the day off once in a while. There are other ways that some uses of copyrighted works are non-infringing besides fair use. This is particularly so in the case of sampling in music.
Fair use, of course, is very important. Judges long ago realized that not every use of a copyrighted work required permission of the copyright owner, even when those uses fell within one of the "exclusive" rights the law gives copyright owners control over. Thus, the common law tradition gave rise to the fair use doctrine, which recognizes that while the rights of copyright owners to control certain uses are broad, they are not unlimited, and cannot be used to limit criticism or commentary, prevent education or transformative uses, and so on. (The test that courts apply is codified in 17 U.S.C. § 107, though the common law is still relevant.) Because of fair use, a user of a copyrighted work might be able to make a reproduction of all or some of it, without permission, even though the law grants copyright holders the right to control reproductions.
In a few weeks, the nations of
the world will gather in Morocco to finalize a treaty that could help the millions
of blind and visually impaired have affordable access to books, but lobbyists
from Hollywood and the publishing industry are making a last minute push to
fatally weaken the Treaty – despite getting all their previous demands.
In a few weeks, the 186 governments that are members of the
World Intellectual Property Organization (WIPO) will gather in Morocco with the
goal of crafting a Treaty For The Blind. The agreement would facilitate global production and lending
of audio books, Braille translations, and otherwise enable the visually
impaired and those with certain learning disabilities to have affordable access
This will most benefit the millions of blind people in the developing
world who live in poverty, by adopting many of the rights to translate works into
braille or other forms accessible to the visually impaired that are already law
in the United States.
Public Knowledge preserves the openness of the Internet and the public's access to knowledge, promotes creativity through balanced copyright, and upholds and protects the rights of consumers to use innovative technology lawfully.
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