Timeline

Annotated Bibliography

“A Catholic Framework for Economic Life.” United States Conference of Catholic Bishops. United States Conference of Catholic Bishops Inc., Nov. 1996. Web. 1 May 2015. <http://www.usccb.org/issues-and-action/human-life-and-dignity/economic-justice-economy/upload/catholic-framework-economic-life.pdf>

The United States Conference of Catholic Bishops is a group of Catholic Bishops in the United States who, together, help to promote the common good and exercise pastoral functions for Christians in the United States. To promote the common good, the organization supports education, human rights, and the betterment of society, charity, and economic opportunity. “A Catholic Framework for Economic Life” was written by the United States’ bishops and is founded upon the Catechism of the Catholic Church, papal encyclicals, a teaching letter known as Economic Justice for All, and statements by U.S. Catholic Bishops. In this “Catholic Framework for Economic Life,” the bishops created a list of obligations the economy has to its people and the rights and duties of people in regards to economic and societal concerns.

Ainsworth, Charles L. Personal interview. 29 Apr. 2015.

Charles Ainsworth is an attorney and partner with the Parker, Bunt & Ainsworth law firm and has over 17 years worth of practicing law. He has worked in four law firms, total, both in Houston and in Tyler, Texas, and has earned a J.D. as well as a B.A. in Political Science. His practice focuses on patent and business litigation in addition to personal injury matters.

“Can Someone Sin and Not Know It?” Verse by Verse Ministry. 14 Dec. 2011. Verse by Verse International, 2015. Web. 3 May 2015. <http://www.versebyverseministry.org/bible-answers/can_someone_sin_and_not_know_it>

The staff of Verse by Verse Ministry answers the question: “Can someone sin and not know it?” in this article. It is possible for a person to sin without knowing that he or she is sinning, as the sin even without knowledge to it commits an “offense against God.” This information is useful in that it answers this question which is brought up in the theological argument for a definition of transformativeness to be added to the Fair Use Doctrine. The organization, Verse by Verse Ministry is a Christian, non-profit ministry dedicated to preaching and teaching the Christian Gospel.

“Copyright Timeline: A History of Copyright in the United States.” Association of Research Libraries. Association of Research Libraries, n.d. Web. 30 Apr. 2015. < http://www.arl.org/focus-areas/copyright-ip/2486-copyright-timeline#.VULgrOlFDIW>

This article deals with the history of copyright in the United States and gives a detailed account of the timeline in which events involving copyright occurred between 1787 and 2014. It is updated regularly as each important event occurs within copyright. This article was written by the Association of Research Libraries, a nonprofit organization dedicated to providing accurate information to the scholarly and educational communities and promoting the exchange of ideas and expertise.

“Court of Appeals Miscellaneous Fee Schedule.” United States Courts. Administrative Office of the U.S. Courts, 1 Dec. 2014. Web. 2 May 2015. <http://www.uscourts.gov/FormsAndFees/Fees/CourtOfAppealsMiscellaneousFeeSchedule.aspx>

In this source, the Administrative Office of the U.S. Courts provides information in regards to the court fees of the Courts of Appeals in lawsuits. The site on which this information is provided is maintained by the Administrative Office of the U.S. Courts and its purpose is to provide the public information from and about the Judicial Branch of the United States Government.

“District Court Miscellaneous Fee Schedule.” United States Courts. Administrative Office of the U.S. Courts, 1 Dec. 2014. Web. 2 May 2015. <http://www.uscourts.gov/FormsAndFees/Fees/DistrictCourtMiscellaneousFeeSchedule.aspx>

This source contains information in regards to the fees of District Court lawsuits. The site on which this information is provided is maintained by the Administrative Office of the U.S. Courts and its purpose is to provide the public information from and about the Judicial Branch of the United States Government.

“Fair Use and Fair Dealing in Foreign Countries.” Canadian Conference of the Arts. Canadian Conference of the Arts, n.d. Web. 1 May 2015. <http://ccarts.ca/wp-content/uploads/2011/07/FairUseandFairDealinginForeignCountries.pdf>

This article compares the specifics about the Copyright laws of various countries in regards to fair use, or fair dealing as it is called in other countries. These countries include: Australia, the Czech Republic, France, Germany, The Netherlands, Spain, Sweden, Switzerland, the United Kingdom, and the United States. This is useful in creating an analogy or comparison between the law elements of one country with those of another.

“Folsom v. Marsh.” Copyright & Fair Use Stanford University Libraries. The Board of Trustees of the Leland Stanford Junior University, 25 Apr. 2013. Web. 30 Apr. 2015. < http://fairuse.stanford.edu/case/folsom-v-marsh/>

This source contains a summary of the Massachusetts Circuit Court’s decision in the 1841 Folsom v. Marsh case. In this summary, it gives the court statement in regards to “justifiable use of original materials,” which later inspired and in part became the Fair Use Doctrine. The summary was provided by the Stanford University Libraries’ website. Stanford University is a prestigious educational establishment, and the original purpose of the “Copyright & Fair Use” section of the Stanford University Libraries’ website was to discuss a case involving Copyright and Fair Use. The website now has information in regards to copyright law, statutes, cases, regulations, and current news on the matter.

Graham, Stuart J.H. and Nicolas Van Zeebroeck. “Comparing Patent Litigation Across Europe: A First Look.” Stanford Law School. Stanford University, 2015. Web. 1 May 2015. <http://journals.law.stanford.edu/sites/default/files/stanford-technology-law-review/online/patentlitacrosseurope.pdf>

This source includes a detailed report over intellectual property litigation, specifically patent litigation, in European countries as well as in the United States. The report has statistical data comparing litigation between European countries and the United States between 2000 and 2010. This data encompasses the legal costs of intellectual property litigation, legal damages, amount of time till judgment of the cases, and information over the types of courts in these countries.

Gottlieb, Emily. “What You Need to Know About…Punitive Damages.” Center for Justice Democracy. Number 22. Center for Justice Democracy, Sept. 2011. Web. 3 May 2015. <http://www.fairwarning.org/wp-content/uploads/2011/09/PunitiveDamagesWhitePaper2011F.pdf>

Emily Gottlieb is the Deputy Director for Law and Policy of the Center for Justice and Democracy. Prior to her appointment as the Deputy Director for Law and Policy, she was an attorney with the center and was a leading writer and analyst for the organization. The Center for Justice & Democracy is a non-profit organization whose goal is to raise awareness about the importance of the justice system. The purpose of this article by Gottlieb is to inform the public about punitive damages.

Hofer, Roy E. “Supreme Court Reversal Rates: Evaluating the Federal Courts of Appeals.” Landslide. American Bar Association, 2010. Web. 30 Apr. 2015. <http://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/LandslideJa n2010_Hofer.authcheckdam.pdf>

Roy E. Hofer has over 50 years of experience as an intellectual property litigator, specializing in patent, trade, antitrust and contract matters. Hofer’s practice now focuses on creating resolutions to intellectual property matters. His experience in federal and district court intellectual property cases gives Hofer insight into how to resolve disputes quickly and efficiently in intellectual property.

“J.d. Salinger v. Random House, Inc. and Ian Hamilton.” Justia US Law. Justia, 2015. Web. 1 May 2015. <http://law.justia.com/cases/federal/appellate-courts/F2/811/90/206150/>

This site is recommended by Stanford University, a leading educational center, as a credible and useful source. The article on this website contains information in regards to the context and rulings on the Salinger v. Random House and Hamilton court case. Additionally, there is a discussion in regards to the judgment on the case by Judge Pierre N. Leval. In this discussion, it provides detailed antithesis to Leval’s decision on the case and explains the rights that are due to the copyright holder, Salinger.

Kretschmer, Bently, M. Kretschmer, and Oren Bracha. “Commentary on: Folsom v. Marsh (1841).” Primary Sources on Copyright (1450-1900). 2008. Copyrighthistory.org, n.d. Web. 30 Apr. 2015. <http://www.copyrighthistory.org/cam/tools/request/showRecord.php?id=commentary_us_1841>

This article provides information in regards to the 1841 Folsom v. Marsh court case as well as its significance to the modern day definition of Fair Use. Oren Bracha, the author of the article, is a legal historian and scholar in intellectual property law. He has written a essay over the history of Anglo-American intellectual property law. Additionally, he was a law clerk of the Supreme Court of Israel, and currently is an employee of the University of Texas at Austin’s School of Law.

Leval, Pierre N. “Toward a Fair Use Standard.” The George Washington University. 1990. The George Washington University, n.d. Web. 30 Apr. 2015. <http://docs.law.gwu.edu/facweb/claw/levalfrustd.htm>

In Pierre N. Leval’s essay, “Toward a Fair Use Standard”, he highlights an issue he has encountered, through his service as a judge, about the Copyright Act of 1976 and its lack of a clear definition of “fair use” in the law. He also indicates how this has affected judges and their varied rulings in cases that question whether or not someone is protected under the fair use doctrine or not, and as a result the effect this has on those involved with the fair use doctrine of the Copyright Law. This article is credible due to the fact that Leval is a U.S. Circuit Judge of the U.S. Court of Appeals for the Second Circuit, appointed in 1993, and has had experience with Copyright lawsuits that had to do with the Fair Use Doctrine. In addition to this, Leval was awarded the Donald R. Brace Memorial Lectureship by the Copyright Society of the U.S.A. in 1989 and the University of Connecticut School of Law’s Intellectual Property Keynote Lectureship for 2001. The intended audience of this article appears to be fellow judges, lawmakers, law students, and others who are interested in Copyright law, as this article appears to be an argumentative article, so Leval is likely attempting to reach out to those who would be able to make change in this section of law. This article is relevant because it involves the fair use doctrine and calls out the fact that there is no clear definition of what is “fair use” in Section 107 of the Copyright Law. In addition to this, it highlights the confusion and discrepancies that have come about as a result of the lack of a clear definition of what is fair use.

Newman, Michael J. and John S. Summers. “Toward a Better Measure and Understanding Of U.S. Supreme Court Review of Courts of Appeals Decisions.” The United States Law Week. The Bureau of National Affairs, Inc., 27 Sept. 2011. Web. 1 May 2015. <http://www.bna.com/>

This source provides statistical data on the United States Courts of Appeals in a review of these courts by the United States Supreme Court. The authors of this explication of the Supreme Court’s findings are John S. Summers and Michael J. Newman. Summers is a shareholder and founding partner of the Hangley, Aronchick, Segal, Pudlin & Schiller law firm, he is an attorney with 25 years of experience in litigation. Newman is an associate of Summers’ law firm and is a magistrate judge with previous experience as a partner and attorney in the Cincinnati office of Dinsmore & Shohl LLP.

Pallante, Maria A. “The Constitutional Provision Respecting Copyright.” Copyright. 2011. U.S. Copyright Office, n.d. Web. 30 Apr. 2015. < http://copyright.gov/title17/92preface.html>

This source contains information on the Copyright Law of the United States, including its preamble in the “Constitutional Provision Respecting Copyright” section of the article provided. This portion of the original Copyright Law states the purpose of the law and its goals. This article was written by Maria Pallante, the current director of the United States Copyright Office, and appointed 12th Register of Copyrights. She has a long history of involvement with intellectual property rights, beginning in 1999, serving as a counselor and director in intellectual property rights and copyright law.

Pate, R. Hewitt. “Promoting Economic Growth Through Competition and Innovation.” Department of Justice. 1 July, 2014. Department of Justice, n.d. Web. 3 May 2015. < http://www.justice.gov/atr/public/speeches/204931.htm>

Hewitt Pate was the Assistant Attorney General for the Antitrust Division of the U.S. Department of Justice from 2003 to 2005. Prior to this, Pate was an Ewald Distinguished Visiting Professor of Law at the University of Virginia. In his early career, he served as a law clerk for Justice Anthony M. Kennedy of the U.S. Supreme Court; the retired Supreme Court Justice, Lewis F. Powell Jr.; and Judge J. Harvie Wilkinson III of the Fourth Circuit Court of Appeals. Currently, he is a member of several law institutions, including the Washington, D.C. and Vriginia bars and the American Law Institute, as well as a member of the Council on Foreign Relations.

“Questionnaire on Copyright – Answers from Belgium.” International Association of Music Libraries. International Association of Music Libraries, n.d. Web. 1 May 2015. <http://www.iaml.info/en/activities/copyright/survey/belgium/>

This source offers information in regards to Belgium intellectual property laws, providing links to sections of the country’s Copyright law. This data was made available by the International Association of Music Libraries, Archives and Documentation Centres. The mission of this association is to encourage the “activities of music libraries” to support musical information and documentation worldwide.

“Salinger v. Random House, Inc.” Cornell University Law School. Cornell University Law School, n.d. Web. 1 May 2015. <https://www.law.cornell.edu/copyright/cases/811_F2d_90.htm>

This source provides material on the Salinger v. Random House and Hamilton case. The information in this article includes details in regards to the judges, background, and rulings on the case. Included in the source is a discussion on the court case by Cornell Law School’s Legal Information Institute, founded in 1992. The purpose of the Legal Information Institute (LII) is to promote the understanding of governmental laws without charging the public for its services. It does this by publishing law articles online for free, detangling the law to make it more understandable, and making it “easier for people to find the law.”

Saunders, Jason A. Personal interview. 28 Apr. 2015.

Jason Saunders is an attorney and partner at the Arnold, Knobloch & Saunders law firm and has focused on intellectual property rights over his entire career. He has also litigated intellectual property cases in a wide variety of technical fields. In addition, he counsels in a range of different of matters in intellectual property, including copyright registration and litigation.

Schoenhard, Paul M. “Judging Trial Judges.” Ropes & Gray. IP Law & Business, Mar. 2006. ALM Properties, Inc., 2006. Web. 1 May 2015. <https://www.ropesgray.com/~/media/Files/articles/2006/03/schoenhard-no-need-for-patent-judges.pdf>

Paul Schoenhard is an attorney whose focus lies with patent litigation both before the U.S. International Trade Commission and before the federal courts in the United States. Schoenhard has been a visiting professor at several universities, including the University of Utah and S.J. Quinney College of Law. Presently, he teaches a college course called “Patent and Trademark Appeals Before the Federal Circuit” at Washington College of Law. He is also an adjunct faculty member at American University and the University of New Hampshire School of Law.

“Section 107 Limitations on exclusive rights: Fair use.” Copyright. U.S. Copyright Office, n.d. Web. 30 Apr. 2015. < http://www.copyright.gov/title17/92chap1.html#107>

This source contains Section 107 of the Copyright Law of the United States; this section of the Copyright Law comes from the Copyright Act of 1976 and highlights limitations on the exclusive rights of a person to his or her copyright through the guidelines with which it gives that become the Fair Use Doctrine. It is credible because it is a government website created by the U.S. Copyright Office which is dedicated to the copyright law and thus must be accurate in its presentation of the laws with which copyright is involved. The writer of this document is the U.S. Congress, another government source, and therefore must also be credible, as if they presented faulty information, they would be called out and the reputations of the senators and representatives involved with the faulty information would be tarnished, thus making it more difficult for these senators and representatives to be reelected, so making them inclined to be accurate in such documents. The intended audience for this source would be the citizenry of the United States, as it affects each and every person in the country in one way or another; in particular it addresses inventors, publishers, authors, artists, and creators of various fields of study. This source is highly useful, as it is the document with which I am calling to be revised in my argument, and thus without it, my argument would be without footing.

Story, Joseph. “Folsom v. Marsh.” Yale Law & Technology. Oct. 1841. Thomas Reuters, 2011. Web. 1 May 2015. <http://www.yalelawtech.org/wp-content/uploads/FolsomvMarsh1841.pdf>

This document offers the report by Joseph Story over the Folsom v. Marsh court case in 1841, mentioned by Pierre N. Leval in his essay “Towards a Fair Use Standard.” This information was provided by Yale University’s course website, Yale Law & Technology, for law and technology courses at Yale University. In the courses listed, it includes the “CPSC 184” college course which is dedicated to teaching about “Intellectual Property in the Digital Age.”

“Supreme Court Analysis of Activity for the Year Ending August 31, 1984.” Texas Judicial Branch. 31 Aug. 1984. Texas Judicial Branch, n.d. Web. 30 Apr. 2015. <http://www.txcourts.gov/search-result-page.aspx?q=reversal+statistics>

This document provides information on the Supreme Court of Texas from 1984, including reversal statistics. This data is provided by the Texas Judicial Branch of the United States Government. The purpose of this website is to provide to the public information regarding the Judicial System of Texas and educate the people on how the court system works.

“The Statute of Anne; April 10, 1710.” The Avalon Project. Lillian Goldman Law Library, 2008. Web. 30 Apr. 2015. < http://avalon.law.yale.edu/18th_century/anne_1710.asp>

The Yale Law School, where the Lillian Goldman Law Library is located, is one of the world’s leading law schools. This article on Yale Law School’s Lillian Goldman Law Library’s website contains the entire original statutory content of The Statute of Anne from April 10th, 1710. The Statute of Anne was the first copyright law and inspired the copyright laws of many other countries.

“What is Intellectual Property?” WIPO. World Intellectual Property Organization, n.d. Web. 30 Apr. 2015. < http://www.wipo.int/about-ip/en/>

This article offers the legal definition of Intellectual Property and the range of creations it encompasses. WIPO, the World Intellectual Property Organization, is the global forum for the services, policy, information and cooperation involving intellectual property. WIPO deals with the International Patent, Trademark, and Design Systems and provides services which help to mitigate Intellectual Property Disputes.

Yahr, Emily. “Robin Thicke, Pharrell Williams owe Mavin Gaye’s family $7.4 million for ‘Blurred Line,’ jury decides.” The Washington Post. 10 Mar. 2015. The Washington Post, n.d. Web. 3 May 2015. < http://www.washingtonpost.com/blogs/style-blog/wp/2015/03/10/robin-thicke-pharrell-williams-owe-marvin-gayes-family-7-4-million-for-blurred-lines-jury-decides/>

This report from The Washington Post offers information in regards to the Pharrell Williams and Robin Thicke vs. Marvin Gaye family case, including the rarity of such cases and the amount Williams and Thicke were ordered to pay to Marvin Gaye’s family in compensation. The article also offers information in regards to the dispute between Sam Smith and Tom Petty, which was settled quietly, without all of the publicity. Emily Yahr is a reporter with The Washington Post from Washington D.C.

 

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Amending the Fair Use Doctrine to Include a Definition of Transformativeness

The desire to protect the rights of creative people to their works has been an ongoing struggle for several centuries beginning with the first copyright law in 1710, the Statute of Anne. This British statute inspired the enactment of the United States’ copyright law, as well as all the copyright laws of countries which enacted these laws, and was meant to be “An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during” a certain period of time. The justification for its enactment was written in its preamble that “authors…and their families” were “too often” financially ruined by those who pirated the written work of authors (“The Statute of Anne”).

Later, in 1787, the newly established United States adopted parts of the British statute into the Constitution with a similar purpose “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 discoveries” (“Copyright Timeline”). These laws established the right of a creative person to protect his or her intellectual property. Intellectual property “refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce,” according to the World Intellectual Property Organization. Intellectual property rights is the broad term for the various forms of protection that guard the rights to this property, these forms are known as copyrights, patents, and trademarks. Violations of these intellectual property rights in copyright are known as copyright infringements. Copyright infringement is often mistakenly thought to be plagiarism. Plagiarism is when a person takes the work of another person and claims it as his or her own. Copyright infringement, on the other hand, refers to the act of making a copy of someone else’s work without their permission. This would include making copies of textbook pages, artworks, quotes, sound bites, etc. (Saunders).

As they originally stood, the Copyright Clause of the United States’ Constitution and the Statute of Anne only protected those whose works had already been published and thus it neglected the rights of students, educators, critics, and reporters as well as future authors and inventors. This is due to the nature of learning as well as human creativity, which is that “all intellectual creative activity,” and intellectual exploration, “is in part derivative.” Humans cannot create from nothing, and so there is “no such thing as a wholly original thought or invention” because in order to create and learn, people must build upon the works of others. This derivative nature of creativity and intellectual exploration presented a major problem for the law, which was then handed off to the courts to solve. It was decided by the British courts that “certain instances of unauthorized reproduction of copyrighted material…would not infringe” on the rights of the copyright holder (Leval). This would become known as “fair use,” which was later expounded upon in America by Justice Joseph Story who “examined the justifiable use of original materials” along with the rest of the Massachusetts Circuit Court in the 1841 Folsom v. Marsh case (“Folsom v. Marsh”).

This approach to the fair use question was later put into legislation and became part of the Copyright Act of 1976, as its 107th Section, better known as the Fair Use Doctrine. In this section it expresses the limitations of copyright holders’ rights in regards to their work and lists four factors that are meant to be used “in determining whether the use made of a work in any particular case is a fair use.” These four factors are, in chronological order, “the purpose and character of the use,” “the nature of the copyrighted work,” how much of the copyrighted material is “used in relation to the copyrighted work as a whole,” and the “effect of the use” has on the “potential market for or value of the copyrighted work.” In addition to these four factors, it specifies in this section of the law that use of copyrighted material “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research” is not infringement (“Section 107”).

However, outside of the “preference for the critical, educational, and nonprofit over the commercial,” the fair use doctrine gives few hints as to the meaning of the first factor, and “no guidance for distinguishing between acceptable and excessive levels” according to Judge Pierre N. Leval, a United States Circuit Judge of the U.S. Court of Appeals for the Second Circuit with a history of dealing with intellectual property rights lawsuits. Judge Leval, in his essay, “Toward a Fair Use Standard,” attempts to clear up this issue by expounding upon the purpose of the Copyright law and the parameters of Fair Use. In this, he proposes a new type of fair use within the first factor, transformative use. In order for a work to exhibit transformativeness, its use of the copyrighted material “must be productive” and “employ the quoted matter in a different manner or for a different purpose from the original” (Leval). A possible definition of transformative use could be that the derivative work should show significant alteration from the original copyrighted work and be distinctly different so as to alter the purpose from that of the original piece. Such “transformative use,” as described by the Judge, recognizes that creative works are derivative of previous, inspiring works, and thus may help to further encourage the promotion of the arts and sciences. The United States Congress should amend the Copyright Act of 1976 Section 107 to include a clear definition of “transformativeness” in the Fair Use Doctrine. Adding a definition of transformativeness to the law, may benefit the United States governmentally, economically, and theologically.

The Copyright system relies on a delicate balance between protecting intellectual property rights and promoting the advancement of art and science in our society. If there is too much protection covering the works of artists, it will allow no growth to stem from those seeds of intellectual creativity. The opposite, having too little protection, can have the same effect, however, because without the reward provided through the protection of an artist’s work, creative thinkers would have little drive to bring their creative inventions to life. This teeter-totter affect of the copyright law makes it especially difficult to clearly define fair use, particularly in cases in which one intellectual creator transforms the work of another, causing a lack of “consensus on the meaning of fair use” (Leval).

The purpose of the Copyright law is to both protect intellectual property rights and promote the arts and sciences. However, it leans more on the side of protecting the intellectual property rights of intellectual property holders. In that purpose, according to Intellectual Property Rights Attorneys Charles Ainsworth and Jason Saunders, the Copyright law fulfills its purpose. In some ways, it goes “a little too far in achieving” that purpose (Saunders). Thus, by including a definition of transformativeness, which favors fair use of copyrighted material, the balance of the Copyright law may tip in order to be more equally fair to both parties in intellectual property court cases. Additionally, a definition of transformative use, being an extension of the “purpose and character” factor of the Fair Use Doctrine, may clear up the confusion surrounding the first factor, as well as “reduce the number of differing opinions of courts” (Ainsworth). By adding a definition of transformativeness to the Fair Use Doctrine, the balance of the Copyright law would be more stabilized and thus would become a fairer system in the court of law.

            Courts dealing with intellectual property rights cases often vary in opinion from one to another, especially in situations where there is no standard protocol. Within the judicial system, dissimilar interpretations of law can be shown in appeals cases when the decision of a lower court is either partially agreed upon or completely reversed by a higher court. For example, the court case Salinger v. Random House, Inc. and Ian Hamilton involves an author, J.D. Salinger, and a biographer, Ian Hamilton, who in his biography of Salinger used a large number of the author’s unpublished letters. History states that before 1978, common law copyright protected unpublished letters and works, however the Copyright Act of 1976 overruled copyright common law and tucked such works and letters under the wing of federal copyright law. Through this, copyright owners were given the “right of first publication among the rights accorded to the copyright owner” (“Salinger v. Random House and Ian Hamilton”). Despite the fact that such unpublished works are protected under the 1976 Copyright Act, they do not escape the Fair Use Doctrine of the Act, which states that simply because “a work is unpublished shall not itself bar a finding of fair use” (Pallante). The New York District Court, in this case, ruled that Hamilton’s use of Salinger’s letters in his biography of the author was fair use. The case was then appealed to the Second Circuit Appeals Court of the United States, and it was found by the Second Circuit justices that Hamilton’s use was not fair use, reversing the ruling of the district court and directed the lower court to “issue” a ban of the “publication of the biography in its present form” (“Salinger v. Random House, Inc.”). Reversed decisions appear to have become quite commonplace in the Appeals Courts and the Supreme Court.

Statistically, in 2006, “40.9 percent of all 65,138 district court filings that were tried to judgment between 1987 and 1996 were appealed” and nearly a third of the original decisions in those cases were reversed (Schoenhard). In the Courts of Appeals “the average reversal rates across the circuits…ranged from 46.2 percent to 79.8 percent” between 2005 and 2010 (Newman and Summers). Additionally, between the years of 1999 and 2008, the Supreme Court reversed the decisions on 386 of its 660 cases, an overall reversal rate of 58% with varying reversal rates of 41.9% to 71.4% depending on which circuit court it was appealed from (Hofer). In the year 1984, the Texas Supreme Court reversed 61% of the Appeals Court decisions, and in 78 of its 103 dispositions had partial or complete reversal (“Supreme Court”). More recently, between the years 1999 and 2008, the “Federal Circuit had the highest reversal rate of any of the federal courts of appeals” at “83.3percent.” Additionally, the Federal Circuit had an even higher reversal rate of “about 92.3 percent” in intellectual property cases (Hofer and James).These numbers show that judges are not always in agreement with one another in court rulings.

The variances in the opinions of the courts are due to the Fair Use Doctrine’s lack of a clear standard that could be applied to all cases. Section 107 of the Copyright Act of 1976, the Fair Use Doctrine, was based off of the findings in Folsom v. Marsh and the commentary made by Justice Joseph Story in regards to that case (Bracha). According to the court in this case, “the question” of fair use is grounded on a “balance of the comparative use” of the materials used, “the nature…of the materials” that were used, “the objects of each work,” the extent “to which each writer” may have used the “same common sources of information,” or “exercised” the same thought process in choosing the media and composition (“Folsom v. Marsh”). These are simple enough guidelines for the judgment of fair use in cases of blatant plagiarism or cases in which the copyrighted material is being used for news reports, critiques, or educational purposes. Purposes such as these are nearly always black and white in whether they “promote the Progress of Science and useful Arts” or not (“Section 107”). However, these are not the only purposes that are covered by the Fair Use Doctrine; there are others such as transformative art, parody, invention, among an assortment of various creative avenues. “Each advance” in the progress of the arts and sciences builds upon works “fashioned by prior thinkers,” and so there is “no such thing as a wholly original thought or invention” (Leval). Due to the derivative nature of the arts and sciences, it is difficult “to lay down any general principles applicable to all cases,” it is for this reason why the court’s findings, and as a result the Fair Use Doctrine, were written in without a defined standard (Story). Since no clear standard has yet to be made, courts often vary in opinion in regards to cases involving the Fair Use Doctrine. The results of these varied opinions due to the lack of a clear standard by which to judge fair use are incorrect sentencing, extended time periods during which the court must come to a conclusion, and as a result of these consequences, increased legal costs.

These legal costs can vary in price and as more fees are added, the price can increase dramatically. In the District courts, these fees can individually cost anywhere between $6 and $176 per document filed, search conducted, and reproduction of evidence made in order to present testimonial information of the case to the court (“District Court”). Fees in the Appeals Courts can individually cost between $11 and $500 (“Court of Appeals”). These costs do not include what paid attorneys charge for their services, and while there are pro bono, or court appointed, attorneys, these lawyers usually do not have nearly as much experience as their paid counterparts nor are they normally as effective since these attorneys do not as much incentive to win case since their paychecks do not depend upon these cases. In addition to this, there are “few” true “experts” on intellectual property law, let alone Copyright law, in the United States, as intellectual property rights is a complicated subject (Ainsworth).

In some other countries, the line between fair and unfair use is more defined than in the United States, and as a result, these countries have reduced costs and damages from intellectual property rights litigation. The Spanish Intellectual Property Act states that the “author’s rights are to be limited only ‘in cases this law provides,’” these limitations were specified in the statute “narrowly” so they would only apply to certain “circumstances” (“Fair Use and Fair Dealing in Foreign Countries”). Similar to Spain, Begium has no guidelines for fair use, but rather states specific exceptions to copyright infringement (“Questionnaire on Copyright”). In contrast, the United States does have a law which provides four factors from which a work can be considered fair use and exempt from copyright infringement. Of these four factors, three of them can be found in the exemptions listed in the Belgian and Spanish Copyright laws. There are also other “additional exemptions” which are “narrowly crafted and apply only under specified circumstances, to narrow classes of works, and for specifically defined activities,” just like the Belgian and Spanish Copyright laws  (“Fair Use and Fair Dealing in Foreign Countries”). The Spanish and Belgian Copyright laws have specific exemptions for fair use; the United States should adopt more specifically defined exemptions for the use of copyrighted material.

The purpose of The Statute of Anne, which put forth the first law regarding copyright, was to prevent the financial “ruin of authors and their families” which “too often” came about due to the “practice of pirated publication” (Leval). Statistically, in a study performed between 2000 and 2010, the United States showed that litigation involving patents, a type of copyright, had extremely high damages that were being debated within the case, as well as average costs of a lawsuit falling between 1 million and 10 million Euros, this would be between $1.2 million and $12 million during this indicated time period. During this same period of time, both Belgium and Spain experienced low damages while amounting to average costs that fell between 50 thousand and 100 thousand Euros, this would be between $60.6 thousand and $121.2 thousand (Graham and Zeebroeck).

This success in the reduction of the average cost and damage from intellectual property litigation in Belgium and Spain can be applied to the United States due to the similarity in the copyright laws between these countries. It is quite possible for the United States to modify its Copyright law to be more specific, and thus promote better understanding of the parameters of the Fair Use Doctrine. The specifically defined exemptions of Belgium and Spain have helped these countries greatly reduce the damages and costs of intellectual property litigation and similar, clear definitions of the limits of fair use should be implemented in the U.S. Copyright Law.

The confusion surrounding the Fair Use Doctrine also presents a moral issue. The Catholic Church is considered by many to be a leader in the promotion of human rights with numerous charities throughout the world dedicated to providing for those in need and advocating for nations to serve the needs of their people. “All people,” according to the United States Conference of Catholic Bishops, “have a right to life and to secure the basic necessities of life.” For this reason, the Church “locates intellectual property rights within the broader framework of common good,” as these rights are meant to ensure a necessary component of life, “economic security” (“A Catholic Framework for Economic Life”). However, the confusion of average citizens and judges in regards to the meaning of fair use in the Fair Use Doctrine can cause moral dilemmas and destabilize financial security.

Theft is forbidden by the seventh commandment in Catholicism, which states “You shall not steal” (“Life in Christ”). According to the Catechism of the Catholic Church “unjustly taking or keeping the goods” of another and “wronging him in any way with respect to his goods” is a sin. Copyright infringement constitutes the idea that the intellectual property of one person has been stolen by someone else. This, along with the confusion surrounding Fair Use in that it “provides no guidance for distinguishing between acceptable and excessive levels,” creates an environment in which a person cannot properly differentiate whether or not his or her actions are moral (Leval). Thus, since a person may not be able to properly differentiate what theft is in regards to the copyright law, he or she may inadvertently wrong another individual without knowledge to the wrongdoing.

Beyond the consequence of inadvertently stealing the work of another, there is also the dilemma of high court costs in intellectual property cases. The issue of fair use and copyright, when considering the purpose of the Copyright law, boils down to the financial gains or losses in the intellectual property market. The original copyright law, the Statute of Anne, was created in order to prevent the financial “ruin of” authors “and their families” by securing the rights to “copies of printed books in the authors or purchasers of such copies” (“The Statute of Anne”). The United States’ Copyright law is similar in its system, ensuring “Authors and Inventors” certain rights to their “Writings and Discoveries” (Pallante). Even the Fair Use Doctrine deals with money in its fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work” (“Section 107”).

When allegations of copyright infringement are made and brought to court, these accusations can bring about massive court costs. These court costs are far too high for people to afford with average costs of intellectual property litigation between 1.2 and 12 million dollars (Graham and Zeebroeck). Such costs would cause extreme hardship for individuals and their families. Government institutions and the “economy exist for” the people, not the other way around. Such large costs would unfairly penalize the accused and their families, and would prevent these people from fulfilling the call to “provide the needs of their families.” In addition, these costs would discourage people from participating in intellectual creativity that would promote innovation through arts and sciences, and, as a result, hinder creative individuals from meeting their “obligation to contribute to the broader society” (“A Catholic Framework for Economic Life”). Thus, the Fair Use Doctrine should be amended to be clearer in its meaning of what constitutes as fair use through the addition of a definition of transformative use which would define a line between fair and unfair use of copyrighted material.

On the other hand, in some court cases, the justification for transformative use can undermine the other factors meant to safeguard the rights of Copyright holders, which must be overcome in order to claim fair use. This can have a negative effect on the incentive to create by tipping the balance of the Copyright system in a direction in which the rewards for creativity and innovation. One such lawsuit, as mentioned earlier, is the Salinger v. Random House, Inc. and Ian Hamilton court case. This dispute over copyright infringement, involved an author, a biographer, and, as the judge of the case, Judge Pierre N. Leval.

The biography of J.D. Salinger by Ian Hamilton contained the contents of a number of unpublished letters by Salinger. These letters are protected under the Copyright law, so in order to avoid obvious infringement, Hamilton paraphrased Salinger’s letters. However, his paraphrases of the letters were extremely close in similarity, replacing only a few words within those passages with words of close relation to one another, and taking the most interesting information from the letters for the biography (“Salinger v. Random House and Ian Hamilton”). Leval, in his analysis of the case, viewed that the amount of which Hamilton copied the unpublished letters was “minimal” and added up to fewer than “30 instances,” claiming that the use was fair and transformative (“Salinger v. Random House, Inc.”). However, these “30 instances” likely only dealt with the direct quotes Hamilton used from Salinger’s letters, not the paraphrases (“Salinger v. Random House and Ian Hamilton”). In his decision, Leval ignored the second factor of the Fair Use Doctrine, “the nature of the copyright work,” by denying Salinger his right to first publication of his unpublished letters. Also, in not observing the similarities between the biography’s passages about the letters and the letters themselves, the judge did not properly assess the quantity of the amount of copyrighted material “used in relation to the copyrighted work as a whole.” Lastly, Leval does not take into account the “effect” the biography’s use of copyrighted material from the letters would have on the “potential market for or value of the copyrighted work,” had Salinger decided to publish these letters (“Salinger v. Random House, Inc.”). By ignoring these essential factors, Leval disrupted the balance of the Copyright law, whose main purpose is to protect the intellectual property of copyright holders from being unfairly used by others.

Following Leval’s decision on the case, as the New York District judge at the time, the case was appealed to the U.S. Court of Appeals for the Second Circuit where it was “reversed and remanded.” Orders were also given to prohibit “publication of the biography in its present form” (“Salinger v. Random House, Inc.”). 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?”).

So, while the issue surrounding fair use presents a theological issue, this can be solved by individuals through their faith and works. Also, the elusive definition of fair use given in Section 107 of the Copyright Act of 1976 by the four factors creates incohesive opinions amongst judges as to what is and is not fair use, however, in Leval’s essay “transformativeness” was simply an explication of his interpretation of the meaning of the first factor of the fair use doctrine (Leval). Thus, by adding a definition of it, the revision to the law may add more weight to the first factor. As a result the addition may mistakenly express the idea that the first factor is more important than the other three factors, and would thus tip the balance between copyright and fair use. The definition of “transformativeness” presented is only an extension of the first factor, and through its widely applicable definition, may cause further dissention between judges. However, it is even more likely to do nothing at all, according to Saunders, so there would be no point to amending the law when no positive change would come about.

While specific exemptions appeared to lessen the cost of intellectual property litigation, the statistics did not present a full picture of comparison between the United States and the European countries of Belgium and Spain. The United States is also different from these two countries in its priorities. While Spain and Belgium as well as other European countries spend several years thinking through the making of a product before actually creating it, the United States prioritizes fast production and fast solutions, getting products on the market while the same types of products are still in the developmental stage in the European countries (Ainsworth). If the United States were to use more specific limitations in regards to fair use, the limitations might strangle creativity. Also, there is no way to standardize the interpretation. If it were to attempt such an endeavor, the country’s legislatures would be forced to create hundreds of specific exemptions in order to maintain the same amount of output.

In the courts, while judges may have differing opinions as to the true meaning of fair use, there will always be dissenting opinions between judges. Even on the most seemingly straightforward cases in court have differing opinions as to what is right, what is wrong, and the amount of punishment that is due to violators of the law. The proper course of action in the issue of fair use is to leave the Fair Use Doctrine as it is and allow the courts to decide in each case whether or not the use is fair.

Antithesis

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?”).

 

Argument by Example

On the other hand, in some court cases, the justification for transformative use can undermine the other factors meant to safeguard the rights of Copyright holders, which must be overcome in order to claim fair use. This can have a negative effect on the incentive to create by tipping the balance of the Copyright system in a direction in which the rewards for creativity and innovation. One such lawsuit, as mentioned earlier, is the Salinger v. Random House, Inc. and Ian Hamilton court case. This dispute over copyright infringement, involved an author, a biographer, and, as the judge of the case, Judge Pierre N. Leval.

The biography of J.D. Salinger by Ian Hamilton contained the contents of a number of unpublished letters by Salinger. These letters are protected under the Copyright law, so in order to avoid obvious infringement, Hamilton paraphrased Salinger’s letters. However, his paraphrases of the letters were extremely close in similarity, replacing only a few words within those passages with words of close relation to one another, and taking the most interesting information from the letters for the biography (“Salinger v. Random House and Ian Hamilton”). Leval, in his analysis of the case, viewed that the amount of which Hamilton copied the unpublished letters was “minimal” and added up to fewer than “30 instances,” claiming that the use was fair and transformative (“Salinger v. Random House, Inc.”). However, these “30 instances” likely only dealt with the direct quotes Hamilton used from Salinger’s letters, not the paraphrases (“Salinger v. Random House and Ian Hamilton”). In his decision, Leval ignored the second factor of the Fair Use Doctrine, “the nature of the copyright work,” by denying Salinger his right to first publication of his unpublished letters. Also, in not observing the similarities between the biography’s passages about the letters and the letters themselves, the judge did not properly assess the quantity of the amount of copyrighted material “used in relation to the copyrighted work as a whole.” Lastly, Leval does not take into account the “effect” the biography’s use of copyrighted material from the letters would have on the “potential market for or value of the copyrighted work,” had Salinger decided to publish these letters (“Salinger v. Random House, Inc.”). By ignoring these essential factors, Leval disrupted the balance of the Copyright law, whose main purpose is to protect the intellectual property of copyright holders from being unfairly used by others.

Following Leval’s decision on the case, as the New York District judge at the time, the case was appealed to the U.S. Court of Appeals for the Second Circuit where it was “reversed and remanded.” Orders were also given to prohibit “publication of the biography in its present form” (“Salinger v. Random House, Inc.”).

Argument by Theological Authority

Theft is forbidden by the seventh commandment in Catholicism, which states “You shall not steal” (“Life in Christ”). According to the Catechism of the Catholic Church “unjustly taking or keeping the goods” of another and “wronging him in any way with respect to his goods” is a sin. Copyright infringement constitutes the idea that the intellectual property of one person has been stolen by someone else. This, along with the confusion surrounding Fair Use in that it “provides no guidance for distinguishing between acceptable and excessive levels,” creates an environment in which a person cannot properly differentiate whether or not his or her actions are moral (Leval). Thus, since a person may not be able to properly differentiate what theft is in regards to the copyright law, he or she may inadvertently wrong another individual without knowledge to the wrongdoing.

Beyond the consequence of inadvertently stealing the work of another, there is also the dilemma of high court costs in intellectual property cases. The issue of fair use and copyright, when considering the purpose of the Copyright law, boils down to the financial gains or losses in the intellectual property market. The original copyright law, the Statute of Anne, was created in order to prevent the financial “ruin of” authors “and their families” by securing the rights to “copies of printed books in the authors or purchasers of such copies” (“The Statute of Anne”). The United States’ Copyright law is similar in its system, ensuring “Authors and Inventors” certain rights to their “Writings and Discoveries” (Pallante). Even the Fair Use Doctrine deals with money in its fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work” (“Section 107”).

When allegations of copyright infringement are made and brought to court, these accusations can bring about massive court costs. These court costs are far too high for people to afford with average costs of intellectual property litigation between 1.2 and 12 million dollars (Graham and Zeebroeck). Such costs would cause extreme hardship for individuals and their families. Government institutions and the “economy exist for” the people, not the other way around. Such large costs would unfairly penalize the accused and their families, and would prevent these people from fulfilling the call to “provide the needs of their families.” In addition, these costs would discourage people from participating in intellectual creativity that would promote innovation through arts and sciences, and, as a result, hinder creative individuals from meeting their “obligation to contribute to the broader society” (“A Catholic Framework for Economic Life”). Thus, the Fair Use Doctrine should be amended to be clearer in its meaning of what constitutes as fair use through the addition of a definition of transformative use which would define a line between fair and unfair use of copyrighted material.

Argument by Analogy

In some other countries, the line between fair and unfair use is more defined than in the United States, and as a result, these countries have reduced costs and damages from intellectual property rights litigation. The Spanish Intellectual Property Act states that the “author’s rights are to be limited only ‘in cases this law provides,’” these limitations were specified in the statute “narrowly” so they would only apply to certain “circumstances” (“Fair Use and Fair Dealing in Foreign Countries”). Similar to Spain, Begium has no guidelines for fair use, but rather states specific exceptions to copyright infringement (“Questionnaire on Copyright”). In contrast, the United States does have a law which provides four factors from which a work can be considered fair use and exempt from copyright infringement. Of these four factors, three of them can be found in the exemptions listed in the Belgian and Spanish Copyright laws. There are also other “additional exemptions” which are “narrowly crafted and apply only under specified circumstances, to narrow classes of works, and for specifically defined activities,” just like the Belgian and Spanish Copyright laws  (“Fair Use and Fair Dealing in Foreign Countries”). The Spanish and Belgian Copyright laws have specific exemptions for fair use; the United States should adopt more specifically defined exemptions for the use of copyrighted material.

The purpose of The Statute of Anne, which put forth the first law regarding copyright, was to prevent the financial “ruin of authors and their families” which “too often” came about due to the “practice of pirated publication” (Leval). Statistically, in a study performed between 2000 and 2010, the United States showed that litigation involving patents, a type of copyright, had extremely high damages that were being debated within the case, as well as average costs of a lawsuit falling between 1 million and 10 million Euros, this would be between $1.2 million and $12 million during this indicated time period. During this same period of time, both Belgium and Spain experienced low damages while amounting to average costs that fell between 50 thousand and 100 thousand Euros, this would be between $60.6 thousand and $121.2 thousand (Graham and Zeebroeck).

This success in the reduction of the average cost and damage from intellectual property litigation in Belgium and Spain can be applied to the United States due to the similarity in the copyright laws between these countries. It is quite possible for the United States to modify its Copyright law to be more specific, and thus promote better understanding of the parameters of the Fair Use Doctrine. The specifically defined exemptions of Belgium and Spain have helped these countries greatly reduce the damages and costs of intellectual property litigation and similar, clear definitions of the limits of fair use should be implemented in the U.S. Copyright Law.

The confusion surrounding the Fair Use Doctrine also presents a moral issue. The Catholic Church is considered by many to be a leader in the promotion of human rights with numerous charities throughout the world dedicated to providing for those in need and advocating for nations to serve the needs of their people. “All people,” according to the United States Conference of Catholic Bishops, “have a right to life and to secure the basic necessities of life.” For this reason, the Church “locates intellectual property rights within the broader framework of common good,” as these rights are meant to ensure a necessary component of life, “economic security” (“A Catholic Framework for Economic Life”). However, the confusion of average citizens and judges in regards to the meaning of fair use in the Fair Use Doctrine can cause moral dilemmas and destabilize financial security.

Argument by Authority

The Copyright system relies on a delicate balance between protecting intellectual property rights and promoting the advancement of art and science in our society. If there is too much protection covering the works of artists, it will allow no growth to stem from those seeds of intellectual creativity. The opposite, having too little protection, can have the same effect, however, because without the reward provided through the protection of an artist’s work, creative thinkers would have little drive to bring their creative inventions to life. This teeter-totter affect of the copyright law makes it especially difficult to clearly define fair use, particularly in cases in which one intellectual creator transforms the work of another, causing a lack of “consensus on the meaning of fair use” (Leval).

The purpose of the Copyright law is to both protect intellectual property rights and promote the arts and sciences. However, it leans more on the side of protecting the intellectual property rights of intellectual property holders. In that purpose, according to Intellectual Property Rights Attorneys Charles Ainsworth and Jason Saunders, the Copyright law fulfills its purpose. In some ways, it goes “a little too far in achieving” that purpose (Saunders). Thus, by including a definition of transformativeness, which favors fair use of copyrighted material, the balance of the Copyright law may tip in order to be more equally fair to both parties in intellectual property court cases. Additionally, a definition of transformative use, being an extension of the “purpose and character” factor of the Fair Use Doctrine, may clear up the confusion surrounding the first factor, as well as “reduce the number of differing opinions of courts” (Ainsworth). By adding a definition of transformativeness to the Fair Use Doctrine, the balance of the Copyright law would be more stabilized and thus would become a fairer system in the court of law.