Jack Donaghy as the Chairman of GE Enterprises - Assignment Example

Fair use: Copyright Introduction: There is a need to protect the rights and the originality of literary property especially in an age where the evolution of the electronic medium in the form of the internet has taken the concept of copy and stretched the boundaries of literary infringement. A copyright act attempts to provide an author or the owner with a set of intellectual property claims with exclusive claims within a particular period in time with respect to the work that he has produced. These rights include the rights of distribution, adaptation and reproduction1. After the particular time-period has elapsed, the work enters public domain. The term copyright would therefore apply to any given form or an ideal substantive disconnected and fixed within the norms of a given medium. There are issues to be placed under consideration while attempting a discourse on copyright issues like "moral rights" (also understood to be the right of the owner to be given credit for the work that he has produced)2. In essence the term Copyright could be understood to be the exclusive rights to intellectual property. This is inclusive of patents and trademarks. One of the best codifications of the term copyright can be found within the United States Constitution that states to this effect that3, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries4." In order to fully comprehend and develop on the various facets of Section 107 or the principle of fair use it would be mandatory primarily to figure out the basics of the copyright act as entrenched in Section 106 of the Act. The following analysis will seek to advice GE Enterprises on the issues of copyright infringement, by an analysis of first, the fair use clause in the copyright act and then an analysis of some of the landmark decisions with respect to the issue. First, 106 states that a person shall have the right to retain the exclusive rights of taking credit for an original piece of work5. It also states that a person shall have the right to “prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation”6. Section 106 then also outlines the exceptions to this basic law and the duration and other considerations that are attached to the exercise of this particular part of the legislation. Having outlined the very basic tenet of Section 106, one can now examine the intricacies of the principle of fair use as outlined in Section 107 and the related judgments that have been given over the years in relation this basic principle. Section 107 states that despite the principles that have been outlined in 106, there are certain activities related to use of copyright material that would fall in the category of permissible usage7. This could include activities to do with reproduction in copies or phone-records, or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. These are acceptable and not an infringement of copyright. The factors that are kept under consideration in the determination of whether or not the usage made in a given scenario fulfills the tenets of the case being fair or not. These factors according to Section 107 are (1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) The nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. With the onslaught from an age of electronic engineering and digitalization of the literary world there have been challenges to the infringement of copyrights and rights related to intellectual property that were heretofore unseen and inexperienced by the world8. One of the most relevant and important judgments in this case was the judgment in the Harper Collins Case9. The primary point of contention in the case was with respect to the right of private media and whether or not an instance of fair use could be made with respect to the infringement with respect to a publication and information about a public figure. The problem was that The Nations magazine had published about four hundred words of the book verbatim without permission from the publisher-Harper Collins or Time Magazine- the agency allotted the rights of reprint. The stand taken by the magazine was that issue was of public importance given the fact that it discussed the life and doings of a man whose work was important to public knowledge. The court ruling held that despite the fact that the issue might be of public importance, it did not give The Nations the right to infringe of material that had a copyright. The basic cause behind the judgment was that although the publication had used just about 400 words from President Ford's memoir the case of infringement was upheld given the fact that these were supposed to be representative of "the heart of the book" and were, as such, substantial. The issue for GE would therefore be to prove that the matter being digitalized would not be representative of the heart of the book but a preview at best. Sony Corp. of America v. Universal City Studios, Inc also known as the "Betamax case", was also one of the many landmark cases in the decisions on fair use. The Supreme Court ruling held that making singular copies of complete television shows for purposes of time-shifting does not constitute copyright infringement, but is fair use. It was also held that home video recording devices and their makers, like Betamax and many others such as VCRs (referred to as VTRs in the case), could not be held liable for infringement under the copyright right but would fall in the category of fair users. The broader legal consequence of the Court's decision was its establishment of a general test for determining whether a device with copying or recording capabilities conflicted with copyright law. In Kelly v. Arriba Soft Corporation10 the Ninth Circuit came to a conclusion that the making copies of an photo for usage as a thumbnail for the overall purposes of online search results would not weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use11." The usage in this particular case was found to be mostly for commercial purposes that was transformative. It did not seek a replication and the nature of the cause of use was not the same as the original, not of the same type as the original. This could be assumed given the fact that the images were not being sold as pictures but rather were to facilitate the identification of the images in the search engine: "This first factor weighs in favor of Arriba's due to the public benefit of the search engine and the minimal loss of integrity to Kelly’s images". In Campbell v Acuff Rose Music12, the Court held that a commercial parody would hold its standing as a fair use instance. That money is made does not make it impossible for a use to be fair; it is merely one of the components of a fair use analysis. The judgment stated that, "The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioner's suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair13." In Perfect 10 v  Google, Inc14, a case between an adult men's magazine and an internet search and online advertising company, the district court of the Central District of California granted a request in part and denied it in part. The ruling is a standard for what fair use interpretation by courts is today. The ruling held that thumbnails were likely to be found infringing but the links were not. The plaintiff requested a preliminary injunction for Google to stop creating and distributing thumbnails of its images in its Google Image. The advice to GE would backed by these explanations therefore would be that there is case for limited viewership as being fair use if it could be proved that the substance of the matter, i.e. the books being placed for viewership would not adversely affect the manner in which the books would do commercially in the market. The basic precedence could be drawn from Harper Collins v Nations. There would be issues with singular copies and mass distribution, the best way to deal with the problem is to ensure that copy pasting facilities would not be given to the user and a replication of the books by the consumer facilitated by GE would be discouraged as far as possible. Further links to advertising and marketing the product for the mainstreams could be allowed, given the fact that GE would at best offer a preview of the final product. It is in this context that one would need to place the ongoing conflict between GE and Tracey Jordan Publishing House (TJPH). The case is controversial given the fact that there was not just the issue of copyright but also the clear case an alteration in the manner of information access through the digitalization of the information space15. The fact of the matter remains that the attempt of GE is the creation of a digitalized information space that would help in the manner of creativity and its related growth. Arguably, there would be some profit that GE would make if it were to digitalize publications from the TJPH house, but this revenue would form a small part of the actual effectivity of the operation. On can however quote Kelly v Arriba here and argue in favour of GE by stating simply that the process of digitalization would make for an easier information access and usage system that would be of public benefit and minimal loss of integrity to TJPH. In Sony Corp v Universal City Studios, it was stated that there needed to be a “balance between a copyright holder's legitimate demand for effective - not merely symbolic - protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes”. One could infact argue that if the case of digitalization of books from TJPH by GE be named copyright infringement then all libraries that house books and lend them out would also be cases of copyright violation because in essence all the GE is attempting to do, is create an online library, not copy the work or take credit from writers. The idea therefore for GE should be to keep to the argument and statement of purpose as the creation of a future where students, researchers, and book lovers would be able to discover and access the world's books online. Lessig’s Remix Book-Issues Raised Lawrence Lessig, is one of the reigning authorities on copyright laws that exit in the US and the reform of these laws. In his book, Remix: Making Art and Commerce Thrive in the Hybrid Economy Lessig discusses a few of the most relevant issues that concern the world of copyright and the protection of intellectual property along with the relatable issues on the matter and comes up with the dual concepts of the read only (RO) and the Read-Write (RW) cultures. In order to understand the depth of Lessig’s argument, it would be necessary to first understand the implications of the twin concepts of RO and RW. The implications of RO vis-à-vis RW culture RO is a cultural format wherein the product at hand, (primarily intellectual property in Lessig’s discussion) is consumed by the consumers in manner that is comparatively passive16. The idea is that the information being consumed is produced and given to the consumer by a source that is 'professional'- more often than not an industry which has the rights over the information at hand. The more traditional points of information production, distribution, and consumption such as the older methods of information disbursals and the related channels are part of this RO culture. There have been changes over the past decade and half that have however challenged the validity and the existentialism of the RO culture. This period has been characterized by the development and a heretofore-unseen evolution in the prowess of the digital media such as the cyber world. This medium does not have to face the ‘natural’ constraints of the analog that preceded it. "What before was both impossible and illegal is now just illegal". The idea therefore would be to establish the merit of what Lessig has argued against what the law has officially stated and to come up with a reference for a defendable position bases on Lessig’s arguments. The RW Culture The Read/Write culture or the RO culture precipitates an interactive bond between the producer and the consumer17. The idea in essence in this culture is to allow a freer flow of thought and a more interactive sense of interchange related to products between the ones that are the producers and the ones that end up consuming the production. Lessig has used examples such as the developments of the iTunes by Apple and Steve Jobs in order to explain the fact that there is a world of opportunities to be had and exploited riding on the wave of the transformation of the RO to the RW culture. In order to demonstrate the strength of his argument Lessig relies extensively on the use of examples like Amazon which he says has been able to achieve the success that it has and is now able to twirl publishers around its puny fingers just because of the fact that it has been able to given consumers what they need in a manner that is a lot more interactive. The idea therefore is the formation of a business model backed by a deeper understanding of the RW culture and its application to the manner of business functioning through an intricate balancing act between the access and control attractive equally to both the consumers and the creators. In addition to the above mentioned thesis Lessig also argues that the manner of our thought processes and the kind of access that we have to information has been altered by digital technology. RO culture had to be recoded in order to compete with the "free" distribution made possible by the Internet. Lessig’s basic argument: The idea they Lessig therefore puts forward is simple. Copyright laws have now outlived their utilities and are functioning in an age of technological advancement where they are dysfunctional. For the most part Lessig focuses on a description of a nascent and booming digital R/W culture. A culture that he believes will change and alter the society for the better and will give the children and the next generation a right to access information in a freer manner. The culture falls in the category of being RW given its interactive nature and hence promotes by Lessig’s assumption democratization of the process of information creation and exchange. Lessig posits that digital technologies provide the tools for reviving RW culture and democratizing production. He uses blogs to explain the three layers of this democratization. Blogs have redefined our relationship to the content industry as they allowed access to non-professional content. The 'comments' feature that soon followed provided a space for readers to have a dialogue with the amateur contributors. 'Tagging' of the blogs by users based on the content provided the necessary layer for users to filter the sea of content according to their interest. Lessig uses the blog model to demonstrate a wider conclusion - while there is no doubt many amateur online publications cannot compete with the validity of professional sources, the democratization of digital RW culture and the 'ecosystem of reputation' provides a space for many talented voices to be heard that was not available in the pre-digital RO model. On the protection of intellectual property in an age characterized by the availability of information on the internet, Lessig puts forward an argument that a protection of these rights stands in direct confrontation with a culture war that is in its novice stage now. The war is being waged against our children in particular and the creators and consumers of art in general18. He argues that most copyright laws have ceased to perform their novel, advantageous role of ensuring that rights of creators are protected and now serve in essence to hamper the growth o creativity and while allowing them to build on previous creative works. He states that our system is now guilty of reprimanding the acts that were encouraged at one point in time- creativity in thought and action. The main point of concern that Lessig puts forward is that by ensuring a monitoring process of law over digital play many creative activities. A blogger states that19, “Lessig's optimism regarding the future of serious amateurs and part-time professionals comes from his conviction that the worlds of the amateur and the professional can be reconciled on the Internet in the form of "hybrid economies", where sharing and selling coexist side by side. Such mixtures are vulnerable, as he recognizes. Those who would contribute happily to non-profit Wikipedia do not contribute so happily if the fruits of their efforts are being pocketed by others” Lessig v the law: What Lessig is attempting to do here is to provide a differentiation between proiductivce and reproductive work while making a cse of productivity even if this this would mean access to methods of reproduction. The purpose and character of use have always featured prominently in the case of a given decision. It is in this context that Lessig must be reviewed and studied. In accordance with the law, “In examining the purpose and character factor in fair use, the concept of 'transformity of use' - the distinction between `productive' and `reproductive' uses - is a matter the US courts have held to be central to a proper analysis of fair use”20. The concept that Lessig is trying to put forward would therefore come across as being not a radical or an opposition to the overall existing system of copyright laws, but in fact a continuity in the supposed spirit of the law that attempts to curb copying but not creativity. Lessig’s concepts are therefore simple, copyrights need to be addressed and protected but not at the cost of a growing productivity. This can infact be the crux of arguments that GE would put forward in the long run given the nature of the operations. The idea is aimed more at the facilitation of information access than at the creation of profits. Merits of suggestions: How fair is fair use? For the purpose of GE enterprises, the advice that Lessig has given in his book is the perfect blend of the arguments that need to be presented at court given the fact that he has argues in favor of the development of the RO culture which is what GE is attempting to do with the expansion of an online library of books and book related resources. If one were to examine these concerns with a finer toothcomb there would be a few simple home truths that would become apparent. First, this is in essence an argument that is based on egalitarianism and pledging for the right to equal choice and opportunity for development and creativity. The fact to be argued is therefore simple. The case has to appeal to sense that a development of this library would help a generation that that would grow up on technological advancements and would thus need to have the creative and intellectual freedom to express and interact backed by products in their primary nature. This would mean that quoting from anew book should be allowed and discussions encouraged even if this would mean a compromise on the copyrights of the author and the publishers. The idea to encourage free thought and a spirit of inquisitiveness without it being stifled behind walls of copyright jargons. In terms of legality, at present this has no justifiable grounding but could be found the manner in which the law defines fair use and the preceding judgments on fair use that have been displayed till date. In the most basic sense given that intellectual property would still need protection, assets cannot be made available to the society at large for dissemination or desecration depending on who the user/consumer is. A complete reform of copyright laws therefore might not be a solution and an implementation of what Lessig suggests might take years to come. Reference: US CODE: Title 17,107. Limitations on exclusive rights: Fair use Article I, Section 8, Clause 8, The Copyright Clause of United States Constitution Whimsley, Lawrence Lessig's Remix: a rambling review , accessed September 29, 2009, < http://whimsley.typepad.com/whimsley/2009/01/lawrence-lessigs-remix-a-rambling-review.html> Lessig L, 2008, < http://www.youtube.com/watch?v=_yC81QhR_xk> Lessig L, 2008, Copyright and Politics Don’t Mix, pub, New York Times, Op-Ed, Oct, 21, 2008, accessed September 29, 2009, < http://www.nytimes.com/2008/10/21/opinion/21lessig.html?_r=1&pagewanted=print Lessig L, 2007, Remix: Making Art and Commerce Thrive in the Hybrid Economy, pub, Penguin Publishing Stim R, 2007, Getting Permission: How to License & Clear Copyrighted Materials Online and Off, pub, Nolo Books, pp215-220 Section 106, Copyright Law of United States of America, Title 17, Section 106, accessed September 24, 2009, < http://www.copyright.gov/title17/92chap1.html#107> Lessig L, 2008, Copyright and Politics Don’t Mix, pub, New York Times, Op-Ed, Oct, 21, 2008, accessed September 29, 2009, < http://www.nytimes.com/2008/10/21/opinion/21lessig.html?_r=1&pagewanted=print> Copyright review Committee, Chapter 5 The US doctrine of 'fair use' and the UK 'fair dealing' provisions, accessed October 8, 2009, Read More