"Free Speech Institutions and Fair Use of Copyrighted Work: A New Agenda for Copyright Reform" Free Download
Cardozo Arts & Entertainment Law Journal, Vol. 33, No. 2, 2016

HANNIBAL TRAVIS, Florida International University College of Law

This article analyzes copyright law as a growing burden on free speech institutions such as newspapers, television stations, Web sites, and software platforms. Free speech institutions help us read, watch, access, write, perform, display, transform what has been written, and publish what is newly or previously written or transformed. Yet copyright law potentially outlaws the unauthorized reading, watching, performing, transforming, or publishing of existing work. Fair use shields free speech institutions from some claims of infringement based on their mediating role.

Emerging copyright norms could harm the freedom and diversity of the Internet, however. Associations of media and Internet corporations have become prolific sources of proposed norms governing Internet speech and communication. They asked the Obama administration to pressure Web sites such as YouTube to agree to a series of Principles for User-Generated Content Services, which would delete (or filter) quotations of media content in audio or audiovisual form, often without regard to fair use. An Open Book Alliance filed briefs in federal court arguing that Google should be restricted from contracting with publishers to create digital libraries of books. The Associated Press and Media Bloggers Association proposed that fair use be restricted online in ways that are contrary to established custom in print and on television, as well as online. Media corporations requested a National Broadband Plan that endorsed filtering out copyrighted material.

This article explores how negotiations between copyright industry trade associations and online services present a risk to free speech institutions. Specifically, the norms advanced by the associations are often framed so as to preserve revenue streams at expense of Internet users’ freedom of expression. Industry groups frequently characterize as “piracy? or a “threat? what courts or legislators would regard as First-Amendment protected, transformative fair use, outside the scope of copyright or trademark rights, or free competition under antitrust law. Moreover, such negotiations may increase the price of information works while reducing the quality of Internet services, including their interactivity and accessibility to the poor and those on fixed incomes. This article therefore describes the problem of non-price-related restraints on upstart Internet and social media companies, such as a requirement to filter out quotations. Such restraints do not burden incumbents, which typically do not confront prepublication filtering of their content.

Antitrust cases and constitutional doctrine are slow to evolve, however. For this reason, the article calls for reform of the fair use privilege of free speech institutions in three key areas: burden of proof, due process, and liability standards. The reforms are intended to serve core constitutional values: liberty of expression, communicative privacy, separation of powers, and the rule of law. Other scholars have proposed reforms to the fair use doctrine that alter procedures, focus on quantitative thresholds of use, or protect a subset of free speech institutions’ activity. This article proposes reforming the statute to shield fair users from liability if they do not harm the copyright holder, and to fix evidentiary problems which they face in proving a lack of harm. The proposed reforms will amend the fair use statute to prevent free speech institutions from confronting an impossible standard, i.e. a burden of disproving potential harm in aggregate.

"Court Decisions on the Internet: Development of a Legal Framework in Europe" Free Download

MARC VAN OPIJNEN, Publications Office of the Netherlands

This paper discusses the gradual development of a legal framework in Europe regarding the publication and accessibility of court decisions on the internet. The evolving doctrine of the European Court of Human Rights on the public pronouncement of judgment is assessed, as are developments in national legislations with regard to the full or selected publication of case law. Specific attention is paid to data protection, Open Data and the European Case Law Identifier.


About this eJournal

This eJournal distributes working and accepted paper abstracts in all areas of legal information scholarship. Topics include (but are not limited to): 1) the impact of legal information on domestic, comparative, and international legal systems; 2) the treatment of legal information authorities and precedents (e.g., citation studies); 3) the examination of rules, practices, and commentary limiting or expanding applications of legal information (e.g., citation to unpublished opinions and to foreign law); 4) the study of economic, legal, political and social conditions limiting or extending access to legal information (e.g., trends in the legal publishing industry, intellectual property regimes, and open access initiatives); 5) the finding and use of legal information by academics to produce legal scholarship, by law students to learn the law, by attorneys in practice, and by judges and others decisionmakers to determine legal outcomes; 6) the history of legal information systems and technological advancements; 7) legal information system design and assessment; and 8) the relationship of substantive areas of law (such as information law, intellectual freedom, intellectual property, and national security law) and other academic disciplines (e.g., information science) to legal information. This includes the scholarship of law librarians, other legal scholars, and other academic disciplines.

The eJournal also includes working papers, forthcoming articles, recently published articles, and selected documents (such as White Papers, briefings, reports, course materials) on the practice of law librarianship. Submissions are welcome in all areas of law librarianship including: 1) administration, management, and leadership; 2) facility design and construction; 3) evaluating and marketing law library services; 4) all aspects of public, technical, and technology services; 5) collection development, including sample collection development policies and procedures; 6) electronic resource management and development including licensing, digitization, and institutional repositories; 7) research and reference services; and 8) legal research instruction teaching methods and substantial or innovative course materials.

Editors: Randy J. Diamond, University of Missouri, and Lee F. Peoples, Oklahoma City University


To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.

Distribution Services

If your organization is interested in increasing readership for its research by starting a Research Paper Series, or sponsoring a Subject Matter eJournal, please email:

Distributed by

Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)



Northwestern University - Pritzker School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)

Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Legal Information & Technology eJournal

Associate Dean/ Director of the Law Library, University of South Carolina School of Law, Associate Dean for the Law Library & Associate Professor of Law, University of South Carolina - Coleman Karesh Law Library

Professor, University of Texas School of Law

Associate Director and Head of Technical Services, William A. Wise Law Library, University of Colorado Law School

Library Director & Associate Professor of Law, University of Missouri-Kansas City School of Law - Leon E. Bloch Law Library

Associate Dean for Information Services, Professor of Law, Professor of Information Resources and Library Science, and Editor, Legal Reference Services Quarterly, University of Arizona - James E. Rogers College of Law, Cracchiolo Law Library

Rufty Research Professor of Law & Senior Associate Dean for Information Services, Duke University School of Law

Assistant Professor of Law and Director of Library Services, Emory University School of Law - Hugh F. MacMillan Law Library

University of Washington - School of Law, Professor of Law and Associate Dean for Library and Computing Services, University of Washington School of Law - Gallagher Law Library

International & Foreign Law Librarian, University of California School of Law Library - Boalt Hall Law Library

Director, Academic Advising, Senior Law Lecturer, University of Washington School of Law

Professor of Law and Director, University of Nebraska College of Law, Schmid Law Library

Associate Dean for Finance & Administration; Professor of Law, University of New Mexico School of Law

Associate Law Librarian for International and Foreign Law, Georgetown University Law Library

Library Director and Associate Professor, Brooklyn Law School