"Digital Rights" and Fair Use in Copyright Law

Publication Date: March 2003

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Law and ethics

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Abstract:

Consumers have never been as deeply involved in the nuances of copyright law and as directly impacted by copyright infringement litigation as they are today. As a consequence of litigation, popular means of access to digital entertainment media may be foreclosed or dramatically altered. While the public audience for digital "consumption" of entertainment grows, the law and technology increasingly focus on digital means to protect copyright interests because of the great risk of piracy inherent in digital media exchanged over the Internet. Consumers have reacted vociferously to new limitations imposed or proposed by new technological constraints.

Many content users argue that new limitations on access to copyrighted materials impair their right to "fair use." But the contours of fair use as personal, noncommercial use by end users, i.e., consumers, in a digital environment and over the Internet have not been fully established or articulated by the courts. Arguably, this process is in its early stages.

This report examines judicial case law which has considered the doctrine of fair use in relation to the First Amendment, the Digital Millennium Copyright Act, and as a means of protecting private, noncommercial use of digital music and film by consumers. It concludes that when the potential to infringe is great, as it almost always will be in a digital environment, the courts have not been willing to expand fair use to encompass subsidiary uses such as time shifting, space shifting, or personal noncommercial use.

While many consumer advocates may wish to broaden the contours of fair use to permit free exchange of digital entertainment media via the Internet in a consumer context, the courts have not done so. In cases to date, courts appear to be unwilling to employ the doctrine to trump the copyright holder's interest in exclusive control of protected work.