While ordinary, everyday “paraphrasing is not copyright infringement” according to Attorney Jason Saunders, the close paraphrasing displayed in Hamilton’s biography of Salinger can constitute infringement upon intellectual property rights. Leval even admits to making “some error in Salinger’s case” in his essay. However, in the essay, he “never answers the question,” he simply “poses the issue” surrounding the Fair Use Doctrine, offering “no resolution” as to how to fix the issue, and actually further confuses the meaning of the Fair Use Doctrine (Ainsworth).

The disagreement between rulings in intellectual property rights cases mentioned in Leval’s essay is a natural occurrence in the judicial system. The Fair Use Doctrine is open to interpretation, and thus judges will have differing opinions in regards to the cases involving it, after all, “judges are human” and humans disagree all the time (Ainsworth). According to Attorneys Jason Saunders and Charles Ainsworth, the majority of intellectual property cases are settled outside of court. About 80% or more in intellectual property cases, according to Ainsworth, and more specifically about “95% of patent” disputes are “settled before trial” according to Saunders.

Most Appeals Courts are presented with only the “closest calls” in intellectual property rights litigation, and so could really go either way in their decision as to what is fair use in these trials (Saunders). Since these lawsuits are usually extremely debatable, the Appeals Courts, where appealed court cases go to be debated after the initial debate, will naturally have higher reversal rates. In addition, the Federal Circuit Court only saw 13 intellectual property cases between 1999 and 2008, which is nearly a 10 year period of time. Only 1 of those 13 was not reversed in any way from the previous decisions of other courts (Hofer). However, since lawsuits usually go through more than one court before arriving at the Federal Circuit, the decisions on these court cases are more likely to reverse at least once between those courts than fully agree with each other.

The reason why there is no clear standard in Fair Use is because we do not have a perfect standard, and if we do not have a perfect standard that can be set up, we shouldn’t have one (). It is “better” to not have a “standard to tell how much is too much.” There may not be “much guidance as to how much is too much, but there should probably not be.” There are so many different factors to consider in each case, and the “facts are different in different cases,” so no “meaningful standard” could even fathom to “say what to consider” (Saunders.) A definition of transformativeness may “not” even “make a difference” when it comes to the interpretation of the law by the courts, according to Saunders, and there is no real point to amending a law when the amendment will do nothing to better the interpretation or implication of the law.

Additionally, while the Copyright systems may appear to be better than the United States in Spain and Belgium, the statistics that Graham and Zeebroeck present are unfairly skewed against the United States in a number of areas. First of all, Spain and Belgium are far smaller countries than the United States and have smaller populations, and thus have fewer people to file intellectual property rights lawsuits. Additionally, the United States uses “private intellectual property rughts and market-based competition” to “promote economic growth through innovation”, so people in the United States are more likely to file for intellectual property rights protection and lawsuits when those rights are violated (Pate). The average costs of intellectual property lawsuits in Belgium and Spain also do not account for punitive damages, while the costs in the United States do account for these damages (Graham and Zeebroeck). These punitive damage costs in the United States for those determined to be violators of intellectual property rights by the court, are put in place to discourage copyright infringement and protect copyright holders against monetary loss that could lead to bankruptcy. Such punitive costs are placed in a number of other types of cases involving other law violations, these costs help to reduce the incentive to break the law (Gottlieb). Such punitive costs in court are often avoided, however, because most intellectual property cases are settled outside of court (Ainsworth). Spain and Belgium courts settle, on average, intellectual property rights cases more quickly than the United States (Graham and Zeebroeck). This is likely due to their specific exemptions which do not leave much room for debate. However, they also do not offer much room for creativity to flourish, and so leave little chance for economic improvement through invention or artistry as the United States does. Due to this, these other countries do not have a better set up for their Copyright law than the United States (Ainsworth). Thus, this shows that specific exemptions alone may not aid in promoting creativity.

The punitive costs of intellectual property rights cases, combined with court costs appear to be extremely expensive, and they are for most people. However, most intellectual property cases are settled outside of court for the very purpose of reducing cost, so if there is a concern about the cost, the issue can be settled out of court for a lower expense (Saunders). Though the compensation for damages from infringement aids in the prevention of the financial ruin of holders, it usually does not ruin those who have to pay compensation either. Punitive damage costs for infringement are only taken from profits in regards to the infringement, usually only a portion of those profits. This is shown in the Pharrell Williams and Robin Thicke v. Mavin Gaye family case, in which Williams and Thicke together paid “Gaye’s family $7.4 million in compensation,” however, the song “Blurred Lines” which was disputed over in court, earned the singers and song writers about “$5 million” each, and “raked in $16 million in profits” (Yahr). Thus the performers were not bankrupted by the lawsuit, but did pay for the copyright infringement upon Marvin Gaye’s song.

On a more theological standpoint, a person can sin without knowledge to the fact that he or she is sinning. So the confusion surrounding the Fair Use Doctrine does present an issue. However, according to the Church, “we are supposed to remain forever” in the education of “His word and under counsel of the Spirit” in order to, hopefully, “better understand God’s expectations and thereby cease sinning.” It is “by our faith in Christ” that “all our sins are forgiven,” these sins include “those we know” and the sins that “we” do not “know” (“Can Someone Sin and Not Know It?”).



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