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Fair use is an on/off switch: Either the challenged use is an infringement of copyright, or it is a fair use, which Section 107 declares "is not an infringement of copyright." As a result, either the copyright owner can stop the use, or the user not only is dispensed from obtaining permission, but also owes no compensation for the use. The unpaid nature of fair use introduces pressures that may distort analysis, particularly of the "transformative" character of the use, and of potential market harm. Faced with a use, particularly in the context of new technologies, that a court perceives to be socially beneficial, a court may overemphasize its "transformativeness," and correspondingly underestimate the market consequences, in order to prevent the copyright owner from frustrating the social benefit. Distortions can appear in the other direction as well: A court sensitive to the economic consequences of the unpaid use may feel obliged to downplay the public interest fostered by the use. Statutory licenses or privately negotiated accords within a statutory framework can alleviate the tension, by ensuring that uses that the legislator perceives to be in the public interest proceed free of the copyright owner's veto, but with compensation – in other words, "Permitted but Paid." The United States is an outlier in the broader international landscape of copyright exceptions. The copyright laws of EU member states, Canada, Australia, and New Zealand do not include an all-purpose fair use defense (though one has been proposed in Australia), but all these states have enacted a panoply of copyright exceptions, many of which require remuneration. Thus, while our fair use doctrine confronts courts with an all-or-nothing choice, other countries have charted middle courses between barring the use and permitting its unremunerated pursuit. In contending that some uses previously ruled "fair" should not remain unpaid, I argue that the copyright law should distinguish new distributions from new works, and should confine (free) "fair use" to the latter. I propose that many redistributive uses be "Permitted but Paid," and be subject to a statutory framework for license negotiations, with compulsory licensing as a backstop. "Permitted but Paid" uses may be divided into two classes: Subsidy (socially worthy redistributions); and Market Failure (transactions costs are too high to warrant a licensing solution; or a new mode of dissemination – infant industry – is threatened by copyright owner recalcitrance). Because the inclusion of a use within the Market Failure class turns largely on facts that may evolve, these uses' classification as "Permitted but Paid" should be subject to a phase-out, for example, a renewable sunset following a five-year review by the Copyright Office. Where the use confers a public benefit and the choice is all-or-nothing, a fair use outcome is assured. But were "Permitted but Paid" an option, we would not be lured by a dichotomy falsely pitting authors against a perceived social good: The licensing mechanism would allow both broader dissemination and provide payment to authors. One might rejoin that there is no need to license if the use is fair. But if the use is "fair" because it supposedly cannot reasonably be licensed, then "Permitted but Paid" should replace fair use for free.

The U.S. Supreme Court in Sony Corporation of America v. Universal City Studios fended a fork in the fair use road. The Court there upset the longstanding expectation that uses would rarely, if ever, be fair when the whole of a work was copied. In the aftermath of that decision, lower courts have rendered a plethora of decisions deeming the copying of an entire work (even with no additional authorship contribution) a fair use, and therefore "free" in both senses of the word. A perceived social benefit or some market failure appears to motivate these decisions. This is because fair use is an on/off switch: either the challenged use is an infringement of copyright or it is a fair use, which section 107 declares "is not an infringement of copyright." As a result, either the copyright owner can stop the use, or the user not only is dispensed from obtaining permission, but also owes no compensation for the use. I contend that fair use for free should be available only where a second author copies in the creation of a new work (instances which I will call productive uses). By contrast, when the entire work is copied for essentially distributive purposes, courts and legislatures should sometimes allow the use, but subject it to an obligation to compensate authors and rights holders. This is not a radical idea: the United States is in fact an outlier in the broader international landscape of copyright exceptions. Many countries have permitted but- paid regimes for various uses, including those by libraries, educational institutions, and technologies. Indeed, the United States has some as well, particularly respecting new technological modes of dissemination. For many authors and other members of the creative communities, while their works stoke the engines of others' enterprises, the Internet age has proffered more rags than riches. Creators should be compensated for the non-creative reuse of their works.

This updated casebook serves a course in introduction to legal reasoning. It is designed to initiate students in the legal methods of case law analysis and statutory interpretation. In a course of this kind, students should acquire or refine the techniques of close reading, analogizing, distinguishing, positing related fact patterns, and criticizing judicial and legislative exposition and logic. Law students' introduction to law can be unsettling: the sink or swim approach favored by many schools casts students adrift in a sea of substantive rules, forms and methods. By contrast, the Legal Methods course seeks to acquaint students with their new rhetorical and logical surroundings before, or together with, the students' first encounters with the substance of contracts, torts, or other first year courses. This approach may not only be user friendly; it should also prompt students to take a critical distance from the wielding of the methods. In this way, students may avoid (or at least broaden) the tunnel vision that so often afflicts beginning law students. ; https://scholarship.law.columbia.edu/books/1090/thumbnail.jpg

Access to 'all the world's knowledge' is an ancient aspiration; a less venerable, but equally vigorous, universalism strives for the borderless protection of authors' rights. Late 19th-century law and politics brought us copyright universalism; 21st-century technology may bring us the universal digital library. But how can 'all the world's knowledge' be delivered, on demand, to users anywhere in the world (with Internet access), if the copyrights of the creators and publishers of many of those works are supposed to be enforceable almost everywhere in the world? Does it follow that the universal digital library of the near future threatens copyright holders? Or are libraries the endangered species of the impending era, as publishers partner with for-profit Internet intermediaries to make books ubiquitously available? Does access-triumphalism therefore risk giving us not the universal digital library, but the universal digital bookstore? And, whether libraries or commercial intermediaries offer access, how will the world's authors fare?

Over ten years ago in the Cardozo Arts and Entertainment Law Journal, I inquired whether authors' "moral rights" had come of (digital) age in the US. Ever-hopeful at that time, I suggested that then-recent legislation enacted to enable the copyright law to respond to the challenges of digital media might, in addition to its principal goal of securing digital markets for works of authorship, also provide new means to protect authors' interests in receiving attribution for their works and in safeguarding their integrity. The intervening years' developments, however, indicate that, far from achieving their majority, US authors' moral rights remain in their infancy, still in need of a guardian ad litem. Nor is it clear what legal institution can assume that role. Judicial interpretation of the Digital Millennium Copyright Act underscores that text's limited utility as a legal basis for attribution rights. Moreover, the US Supreme Court's 2003 decision in Dastar v Twentieth-Century Fox has probably left authors worse off, because the Court removed recourse to the Lanham Trademarks Act as a source of attribution (and perhaps, integrity) rights. If statutes and caselaw afford no general basis of moral rights, might the convergence of contract law and digital communications yield agreements, private in form but public in impact, that collectively approximate attribution and integrity rights? This assessment of developments in moral rights in the U.S. since 2001 will first analyze the caselaw construing section 1202 of the DMCA, which prohibits removal or alteration of "copyright management information." It will next summarize the damage Dastar has done to the development of moral rights. Finally, I will consider the extent to which online contracts and practices may supply an effective basis for the assertion of attribution and integrity rights. De facto implementation of attribution rights through digital watermarking and other means of incorporating authorship information in connection with the communication of digital copies or performances of work make possible the recognition of many levels of creative contributions, but without a legal obligation to credit creators, it is unclear whether authorship information will remain connected to the copies of their works. Regarding integrity rights, respect for the work as the author created it may, in the absence of enforceable legal or contract norms, yield to online users' preference for "remix." In that light, an alternative moral right of the author, proposed by Prof. Jessica Litman, and recounted in the previous AELJ essay, to compel comparison of the altered version with the original by obliging the modifying user to link back to it, is better than nothing. But, without a legal obligation to disclose alterations or link back to the original, the prospects for even this weakened integrity right do not presage imminent adolescence, much less a vigorous adulthood, for moral rights in the US.

The "Wittem Group" of copyright scholars has proposed a "European Copyright Code," to "serve as an important reference tool for future legislatures at the European and national levels." Because, notwithstanding twenty years of Directives and a growing ECJ caselaw, copyright law in EU Member States continues to lack uniformity, the Wittem Group's endeavor should be welcomed, at least as a starting point for reflection on the desirable design of an EU copyright regime. Whether or not the proposed Code succeeds in influencing national or Community legislation, it does offer an occasion to consider the nature of the rights that copyright secures, and of the goals that a copyright system should serve. The following commentary will reproduce the provisions of the proposed Code, together with annotations of particular articles. The proposed Code contains five chapters: (1) Works; (2) Authorship and Ownership; (3) Moral Rights; (4) Economic Rights; (5) Limitations. The text provides neither for remedies, nor for voluntary formalities. It also does not address neighboring rights. The five chapters vary in ambition, from cautious synthesis to radical prescription. If some timidity characterizes the chapters addressing authors' rights, the hallmark of the chapter on limitations is its temerity, displaying an impetus to break through the rigidity of the current EU and national systems of copyright exceptions in order to favor EU-wide uses of copyrighted works in which, in the drafters' perception, the interests of third parties, including the public, outweigh those of the authors or copyright owners. Reaction to the Wittem endeavor may turn at least in part on one's assessment of whether the drafters have correctly stated and/or weighted the third party interests

This book chapter considers the liability of entrepreneurs of 'user-generated content' (UGC) sites. These immensely popular fora, such as YouTube and My Space, enable their participants to post and view a great variety of content, not all of it in fact generated by the posting user. The legislative compromise worked out between telecommunications providers and content owners in the 1998 'Digital Millennium Copyright Act' provides the statutory framework, at once insulating the operators of UGC sites from debilitating copyright sanctions, while still affording meaningful relief to copyright owners. The statutory criteria to qualify for the section 512(c) safe harbor are designed to ensure that the beneficiaries of the safe harbor remain copyright-neutral with respect to the content they host. The recent District Court decision in Viacom v. YouTube, however, indicates that the statutory safe harbor may shield even the entrepreneur who anticipates – indeed "welcome(s)" – massive infringements so long as the entrepreneur lacks "actual or constructive knowledge of specific and identifiable infringements of individual items." While the statute makes clear that the entrepreneur should not be pressed into service as the investigative arm of the copyright owner, the Viacom decision does not simply decline to impose an obligation to seek out the infringers who may lurk within the user base. Rather, the decision arguably rejects neutrality to read into the statute a high degree of solicitude not only for online entrepreneurs whose businesses occasionally may accommodate infringing users, but also for those who effectively solicit infringers. If, by contrast, the neutrality principle does animate the statute, a court could appropriately apply that principle through a duty to take reasonable precautions to avoid apparent and repeat infringements.

The 1976 Act announces broad exclusive rights, offset by a myriad of specific exemptions, and one wide exception for "fair use." In words and intent, the exclusive rights are capacious, but new technologies may have caused some of the general phrases to become more constraining than might have been expected from a text whose drafters took pains to make forward-looking. Thus, the scope of the reproduction right turns on the meaning of "copy;" the reach of the distribution right on "distribute copies" and "transfer of ownership;" the range of the public performance right on "public" and "perform." Entrepreneurs and users of new technological means of exploiting copyrighted works have urged narrow constructions of each of these terms, arguing that broad interpretations will chill future innovation (and suppress present markets for copyright-exploiting devices or services). Copyright owners, concerned that unfettered new uses will supplant traditional copyright-controlled markets, have contended that the literal language, or, failing that, congressional intent, encompass the contested use. In addition, new technologies have called into question the identification of the person who "does" the copyright-implicating acts. Who makes a copy when the act is decomposed into steps taken by different actors? Who performs or displays a work when the work resides on one person's server, but the public perceives it through another person's website? Several US courts have narrowly construed the reach of the exclusive rights of reproduction, distribution, public performance and public display, thus putting into doubt their efficacy in the digital environment. In particular, the Second Circuit's recent decision in Cartoon Networks v. CSC Holdings, if followed, could substantially eviscerate the reproduction and public performance rights. The growing number of decisions rejecting a "making available" right attests to some difficulties in adapting the distribution right to online exploitation. By contrast, one bright spot for authors appears in the area of moral rights, in which digital media may provide a means to make at least some authors' attribution interests enforceable. Because the decisions emanate from lower courts, including first-level courts, it is too soon to discern whether US copyright law is adopting a constricted conception of the scope of the economic rights under copyright, and if so, whether the decisions betoken an evolving (if often unarticulated) determination that copyright prerogatives should yield to technological preferences. In either event, the analyses and results contrast with solutions adopted in the European Union, and, in some instances, may be in tension with the US' international obligations.

Daniel Gervais concluded his analysis of the protection of databases with three options for the future. I would like to examine a fourth. Let us assume no future flurry of national or supranational legislative activity because the content of databases is in fact already being protected. Not through copyright or sui generis rights, but through other means. Databases are an object of economic value, and they will conveniently wed whatever legal theory or theories will achieve the practical objective of preventing unauthorized exploitation of the works' contents. To beat the marriage metaphor into the ground, I'd like to suggest that, at least in the U.S., databases today can avail themselves of the traditional range of wedding gifts: "something old, something new, something borrowed, something blue." The something old is contract law; the something new is the Computer Fraud and Abuse Act; the something borrowed is the newly reminted tort of "trespass to chattels"; and the something blue – using "blue" in the sense of something risque and perhaps objectionable – is digital rights management, reinforced by the anti-circumvention protections of § 1201 of the Digital Millennium Copyright Act.