Author ORCID Identifier

0000-0003-2381-1028

Document Type

Article

Publication Date

2009

Keywords

Expressive works, Nonexpressive use, Infringement, Transaction costs, Copyright, Technology

Abstract

Part I of this Article introduces the phenomenon of copy-reliant tech­nology by focusing on four significant case studies. The first case study, Field v. Google Inc., centers on the permissibility of automated archiving in the context of text-based search engines. The second case study, Perfect 10, Inc. v. Amazon.com, Inc., centers on the creation and display of thumb­nail representations of copyrighted photographs by image-based search en­gines. The conduct challenged in the third case study, the Google Book Project, relates both to the generation of metadata and to the display of fragments of books as part of a menu of search results. The final case study looks at plagiarism detection software, which also addresses the use of copyrighted works to generate metadata. These case studies illustrate copy-reliant technology in a number of contexts that are further developed in Parts II and III.

Part II explores the doctrinal implications of the nonexpressive use of copyrighted works. Traditionally, copyright owners have been able to con­trol significant communicative or expressive uses of their works - such as reproduction, display and performance. In contrast, copy-reliant technolo­gies typically use copyrighted works in a way that is noncommunicative and nonexpressive. A careful review of existing copyright doctrine sug­gests that the rights of copyright owners do not typically encompass nonex­pressive uses of their works. I argue that recognizing a principle of nonexpressive use resolves many questions relating to copy-reliant technol­ogies. It also reconciles many puzzling features of the fair use doctrine more broadly. Part II concludes by addressing the doctrinal incorporation of this principle of nonexpressive use through the application of the fair use doctrine.

Part III studies the doctrinal implications of high transaction costs in relation to copy-reliant technologies and the use of opt-out mechanisms to mitigate those transaction costs. It then analyzes the relationship between transaction costs and the form and content of property rights generally, and the relevance of opt-outs to a fair use analysis.

First Page

1607

Publication Title

Northwestern University Law Review

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