Technological Fair Use

Abstract

The Article proposes a framework tailoring fair use specifically for technology cases. At the inception of the twenty-first century, information technologies have become increasingly central to the U.S. economy. Not surprisingly, complex copyright cases involving speech technologies, such as DVRs, mp3 devices, Google Book Search, and YouTube, have increased as well. Yet existing copyright law, developed long before digital technologies, is ill-prepared to handle the complexities these technology cases pose. The key question often turns, not on prima facie infringement, but on the defense of fair use, which courts have too often relegated to extremely fact-specific decisions. The downside to this ad hoc adjudication of fair use is that it leads to great uncertainty over what is permissible in a way that may retard innovation in speech technologies. This Article addresses this ongoing problem by offering a proposal for courts to recognize a specific type of fair use - technological fair use - and to tailor the four fair use factors accordingly. Technological fair use is supported not only by a synthesis of existing case law, but also, more importantly, by the constitutional underpinnings of the First Amendment and the Copyright and Patent Clause, as well as economic theory.

Keywords: technological fair use, fair use, quasi-technologial fair use, copyright, speech technologies, Google Book Search, Amazon Kindle, text to speech, Free Press Clause, Copyright Clause, Framers, First Amendment, reverse engineering, thumbnail, Sony, Sega, Galoob, Kelly, antiplagiarism software

JEL Classification: K10, K19, K30, K39, L82, L86, O38