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March 2, 2005
Media Profs on Grokster: Don't Forget Fair Use
Siva Vaidhyanathan and his fellow media studies' professors have filed their brief in the Grokster case [PDF]. They argue that the Betamax rule has protected more than the freedom to create new copying technologies. It has also protected the activities that these technologies allow -- namely, the fair use of copyrighted materials.
[Both the Supreme Court and Congress] acknowledge that teaching and research often require the unauthorized copying, distribution, re-fashioning, and performance of copyrighted works without permission from the copyright holder, and thus have cleared a space within the strictures of copyright law to allow for such publicly beneficial uses. The foundation of that space is "fair use," which, though an affirmative defense to the accusation of infringement, has granted educators a certain measure of comfort that they would not be sued by copyright holders for infringement. However, the penumbra of perceived "users" rights' that emanate from Sec. 107 of the Copyright Act has proven inadequate to protect many important acts central to teaching and research. ...Peer-to-peer technology is not functionally distinct from other, more familiar, less demonized methods of resolving communicative processes such as sending e-mail, creating hyperlinks, and employing search engines such as Google.com. All of these functions potentially (and commonly) infringe the copyrights of others. ....[We] wish to encourage the Court to consider that Sony did more than legalize home taping and "time shifting." It democratized participation in the project of recording the collective memory of this dynamic nation.
I'm delighted to see this beautiful articulation of why keeping copyright law and policy balanced is so important to our culture. But from Siva I expected no less.
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