Brief of Amici Curiae American Association of University Professors et al., Cambridge University Press et al. v. Becker, No. 12-14676 (11th Cir. 2013)

41 Pages Posted: 22 Jan 2014

See all articles by Jack I. Lerner

Jack I. Lerner

University of California, Irvine School of Law

Date Written: April 25, 2013

Abstract

Brief amicus curiae in appeal of lower court's decision that uses of online e-reserves in the university setting were largely fair uses.

Amici urge the Court of Appeals to affirm the district court’s judgment, but also to clarify that district courts assessing fair use claims may alternatively conduct a transformative use analysis to determine whether the use was fair. A transformative use analysis compares the purpose for which the professors use copyrighted material in their teaching with the original purpose for which the work was intended. In cases where the materials encompass more than a modest excerpt, the use may nonetheless be transformative. In such cases, the failure to consider whether the use was transformative would burden or restrict countless highly expressive uses that have long been an essential teaching tool.

The district court correctly concluded that non-transformative uses can be fair uses when only modest portions are used for a nonprofit educational purpose. However, the inquiry should not end there. Although educational use weighs in favor of fair use, transformative uses such as criticism and commentary fundamentally alter the fair use calculus, frequently broadening the amount of works that can be used and largely obviating the need to inquire into market harm. By making a transformative use, a professor employs the original work in a new way in order to express new ideas, add meaning, and convey new messages. These new uses do not supplant the original work, but instead add to our collective knowledge and understanding. By protecting transformative uses as non-infringing, the fair use doctrine ensures that copyright can coexist with the First Amendment’s protection of free expression.

Keywords: copyright, fair use, education, transformative use, e-reserves

JEL Classification: K39

Suggested Citation

Lerner, Jack I., Brief of Amici Curiae American Association of University Professors et al., Cambridge University Press et al. v. Becker, No. 12-14676 (11th Cir. 2013) (April 25, 2013). Available at SSRN: https://ssrn.com/abstract=2382427 or http://dx.doi.org/10.2139/ssrn.2382427

Jack I. Lerner (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States
949-824-7684 (Phone)

HOME PAGE: http://www.law.uci.edu/faculty/full-time/lerner/

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
34
Abstract Views
317
PlumX Metrics