51 Pages Posted: 29 Aug 2006
This paper seeks to refocus the discussion of users' and consumers' rights under copyright, by placing people who make personal use of copyright works at the center of the copyright system. The view of copyright that such a reconfiguration permits yields some useful insights. It allows us to look at 19th and 20th Century copyright cases in a new light: Rather than viewing those opinions as decisions by common law judges construing statutes stingily, we can appreciate them as interpretations informed by a view of copyright in which readers and listeners are as important as authors and publishers.
I propose in this paper to look at the place of readers, listeners, viewers and the general public in copyright through the lens of personal use. After MGM v.Grokster, the topic of personal use is timely, indeed critically so. Limiting myself to personal use, moreover, allows me to evade, for now, many of the interesting questions that arise when readers, listeners, users and experiencers morph into publishers and distributors. Finally, personal use is a realm where even the most rapacious copyright owners have always agreed that some uses are lawful even though they are neither exempted or privileged in the copyright statute nor recognized as legal by any judicial decision.
In part II of this paper, I urge that reading, listening, viewing, watching, playing and using copyrighted works is at the core of the copyright system. For most of its history, copyright law was designed to maximize the opportunities for non-exploitative enjoyment of copyrighted works in order to encourage reading, listening, watching and their cousins. I term the freedom to engage in those activities copyright liberties, and argue that they are both deeply embedded in copyright's design and crucial to its promotion of the Progress of Science. In part III, I revisit copyright cases that have attracted criticism for their stingy construction of copyright owners' property rights, and suggest that the courts' narrow reading of copyright rights was motivated, at least in part, by their solicitude for the interests of readers and listeners. These courts sought to evaluate whether accused uses were more akin to reading and listening than to publishing and distributing, and they examined the potential impact of their decisions on readers and listeners as well as authors and publishers. When a broad literal reading of statutory language would have significantly burdened reading, listening and viewing, these courts resisted that interpretation of the statute. In part IV, I articulate a definition of personal use. Armed with that definition, in part V, I look at a range of personal uses that are uncontroversially non-infringing under current law. I focus in particular on personal uses that seem to fall within the literal terms of copyright owners' exclusive rights, and seem to be excused by no statutory limitation, but which are nonetheless generally considered to be lawful. I proceed in parts VI and VII to offer an alternative analysis of the scope of copyright owner's rights and the lawfulness of personal uses that might invade them. Finally, in part VIII, I return to the conventional paradigm of copyright statutory interpretation, under which all unlicensed uses are infringing unless excused. I suggest that the rubric is not only inaccurate, but potentially destructive of copyright's historic liberties.
Keywords: copyright, fair use, personal use, copyright liberties
Suggested Citation: Suggested Citation
Litman, Jessica, Lawful Personal Use. Texas Law Review, Vol. 85, p. 1871, 2007; U of Michigan Public Law Working Paper No. 63; U of Michigan Law & Economics, Olin Working Paper No. 06-004. Available at SSRN: https://ssrn.com/abstract=926575
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