Shamans, Software, and Spleens: Law and the Construction of the Information Society by James Boyle

Author:James Boyle [Boyle, James]
Language: eng
Format: epub, mobi
Published: 2009-09-07T13:44:00+00:00

Classroom Copies

Again it is hard to know just which examples to pick. In the realm of the printed word, it is easy to find unduly restrictive decisions about the fair use exception in copyright. Cases such as the Kinko's case end up by restricting the accessibility of information and ideas even within the areas specifically marked out by the copyright statutes as examples of "fair use."23 The Kinko's decision concerned the creation of anthologies of photocopied material for classroom use. Kinko's Graphics assembled the packets for the professors concerned and then sold them for a profit. Kinko's claimed that this constituted fair use. Here are the words of the copyright statute, section 107: "Notwithstanding the provisions of section 106, the fair use of a copy righted work, including such use by reproduction in copies ... for purposes such as criticism, comment, newsreporting, teaching, (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright. "24

In the Kinko's case, Judge Constance Baker Motley listed a number of factors as determinative of fair use-including the "transformative value" of the secondary work as compared to the original. Let us set aside the question of whether this makes a nonsense of the language of the statute; except by dipping further into postmodernism than Judge Motley seems willing to go, how can "multiple copies for classroom use" ever be "transformative"? Beyond the language of the statute, the use of the transformative test reintroduces an authorial paradigm into all portions of fair use doctrine. This may seem reasonable until one remembers that fair use was supposed to be the limitation of the monopoly granted to authors who got their rights by being transformative. Does the exception make sense if it merely parallels the rule? Authors may only be trumped by other authors? I would argue that it is a better interpretation of the fair use exception to assume that it allows for socially beneficial uses in general, but also maintains the availability of a public domain for future creators. This availability should be both specific and general. Future creators need to be able explicitly to make use of past objects of intellectual property-for example, the parody of a prior work-a use in which the trans formativeness criteria might make some sense.25 But there also needs to be a general availability to the culture as a whole, and that is exactly the goal served by the multiple copying provisions of section 107. Future creators need to be educated-and we might even assume that they will be better educated if they are exposed to the widest possible range of ideas and opinions. Thus, if we care about future creation we might want specifically to guarantee the availability of multiple copies for classroom use; indeed section 107 seems to do just that. For most of the opinion, however, judge Motley seems to assume that the only way in which future creation can be guaranteed is by giving more intellectual property rights: "An important additional factor

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