Difference between revisions of "Beebe (2008)"
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| − | {{Source | + | {{MainSource |
| + | |Source={{Source | ||
| + | |Name of Study=Beebe (2008) | ||
|Author=Beebe | |Author=Beebe | ||
|Title=An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005 | |Title=An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005 | ||
| Line 5: | Line 7: | ||
|Full Citation=Beebe, B. (2008). An empirical study of US copyright fair use opinions, 1978-2005. University of Pennsylvania Law Review, 549-624. | |Full Citation=Beebe, B. (2008). An empirical study of US copyright fair use opinions, 1978-2005. University of Pennsylvania Law Review, 549-624. | ||
|Abstract=Section 107 of the Copyright Act of 1976 establishes the affirmative defense to copyright infringement of “fair use,” by far the most enigmatic doctrine in U.S. copyright law and by far the most important. Without it, much of our economic and communicative action would constitute copyright infringement. Yet despite the importance of the fair use defense, and despite the enormous amount of scholarly attention that it has received, we continue to lack any systematic, comprehensive account of our fair use case law and the actual state of our fair use doctrine. Instead, our conventional wisdom derives from a small set of conventionally agreed-upon leading cases. This Article presents the results of the first empirical study of our fair use case law to show that much of our conventional wisdom about that case law is mistaken. Working from a data set consisting of all reported federal opinions that made substantial use of the section 107 four-factor test for fair use through 2005, the Article shows which factors and subfactors actually drive the outcome of the fair use test in practice, how the fair use factors interact, how courts inflect certain individual factors, and the extent to which judges stampede the factor outcomes to conform to the overall test outcome. It also presents empirical evidence of the extent to which lower courts either deliberately ignored or were ignorant of fair use doctrine set forth in the leading cases, particularly those from the Supreme Court. Based on these descriptive findings, the Article prescribes a set of doctrinal practices that will improve courts’ adjudication of the fair use defense. | |Abstract=Section 107 of the Copyright Act of 1976 establishes the affirmative defense to copyright infringement of “fair use,” by far the most enigmatic doctrine in U.S. copyright law and by far the most important. Without it, much of our economic and communicative action would constitute copyright infringement. Yet despite the importance of the fair use defense, and despite the enormous amount of scholarly attention that it has received, we continue to lack any systematic, comprehensive account of our fair use case law and the actual state of our fair use doctrine. Instead, our conventional wisdom derives from a small set of conventionally agreed-upon leading cases. This Article presents the results of the first empirical study of our fair use case law to show that much of our conventional wisdom about that case law is mistaken. Working from a data set consisting of all reported federal opinions that made substantial use of the section 107 four-factor test for fair use through 2005, the Article shows which factors and subfactors actually drive the outcome of the fair use test in practice, how the fair use factors interact, how courts inflect certain individual factors, and the extent to which judges stampede the factor outcomes to conform to the overall test outcome. It also presents empirical evidence of the extent to which lower courts either deliberately ignored or were ignorant of fair use doctrine set forth in the leading cases, particularly those from the Supreme Court. Based on these descriptive findings, the Article prescribes a set of doctrinal practices that will improve courts’ adjudication of the fair use defense. | ||
| + | |Authentic Link=http://www.pennlawreview.com/print/?id=164 | ||
|Link=http://www.pennlawreview.com/print/?id=164 | |Link=http://www.pennlawreview.com/print/?id=164 | ||
|Reference=Cotropia and Gibson (2014) | |Reference=Cotropia and Gibson (2014) | ||
| Line 18: | Line 21: | ||
|FundamentalIssue=1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare | |FundamentalIssue=1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare | ||
|EvidenceBasedPolicy=A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right), F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness) | |EvidenceBasedPolicy=A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right), F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness) | ||
| − | | | + | |Intervention-Response=More consistent and correct application of fair use law; transparency; certainty. |
| + | |Description of Data=A data set consisting of all reported federal opinions that made substantial use of the section 107 four-factor test from the January 1, 1978, effective date of the Copyright Act through 2005. | ||
| + | |Data Year=1978 to 2005 | ||
| + | |Data Type=Secondary data | ||
| + | |Data Source=US Federal Court Decisions; | ||
| + | |Method of Collection=Quantitative Collection Methods, Quantitative data/text mining, Document Research, Qualitative content/text mining | ||
| + | |Method of Analysis=Quantitative content analysis (e.g. text or data mining), Visual / Other Content Analysis, Qualitative Coding / Sorting (e.g. of interview data), Legal Analysis | ||
| + | |Industry=Creative, arts and entertainment; Publishing of books, periodicals and other publishing; Sound recording and music publishing; | ||
| + | |Country=United States; | ||
| + | |Cross-country=No | ||
| + | |Comparative=No | ||
| + | |Government or policy=No | ||
| + | |Literature review=No | ||
|Method=Data set analysis for federal court opinions | |Method=Data set analysis for federal court opinions | ||
| − | |||
|Data=U.S. federal court opinions and statutes | |Data=U.S. federal court opinions and statutes | ||
| + | }} | ||
| + | |Dataset={{Dataset | ||
| + | |Sample Size=107 | ||
| + | |Level of Aggregation=Federal Judgement Opinions, | ||
| + | |Data Material Year=1978 to 2005 | ||
| + | }} | ||
}} | }} | ||
Revision as of 11:56, 14 November 2016
Contents
Source Details
| Beebe (2008) | |
| Title: | An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005 |
| Author(s): | Beebe |
| Year: | 2008 |
| Citation: | Beebe, B. (2008). An empirical study of US copyright fair use opinions, 1978-2005. University of Pennsylvania Law Review, 549-624. |
| Link(s): | Definitive , Open Access |
| Key Related Studies: | |
| Discipline: | |
| Linked by: | Cotropia and Gibson (2014), Gerhardt (2014), Lippman (2013), Liu (2019), Netanel (2011), Sag (2012), Sag (2017), Schuster, Mitchell and Brown (2018) |
| About the Data | |
| Data Description: | A data set consisting of all reported federal opinions that made substantial use of the section 107 four-factor test from the January 1, 1978, effective date of the Copyright Act through 2005. |
| Data Type: | Secondary data |
| Secondary Data Sources: | |
| Data Collection Methods: | |
| Data Analysis Methods: | |
| Industry(ies): | |
| Country(ies): | |
| Cross Country Study?: | No |
| Comparative Study?: | No |
| Literature review?: | No |
| Government or policy study?: | No |
| Time Period(s) of Collection: |
|
| Funder(s): | |
Abstract
Section 107 of the Copyright Act of 1976 establishes the affirmative defense to copyright infringement of “fair use,” by far the most enigmatic doctrine in U.S. copyright law and by far the most important. Without it, much of our economic and communicative action would constitute copyright infringement. Yet despite the importance of the fair use defense, and despite the enormous amount of scholarly attention that it has received, we continue to lack any systematic, comprehensive account of our fair use case law and the actual state of our fair use doctrine. Instead, our conventional wisdom derives from a small set of conventionally agreed-upon leading cases. This Article presents the results of the first empirical study of our fair use case law to show that much of our conventional wisdom about that case law is mistaken. Working from a data set consisting of all reported federal opinions that made substantial use of the section 107 four-factor test for fair use through 2005, the Article shows which factors and subfactors actually drive the outcome of the fair use test in practice, how the fair use factors interact, how courts inflect certain individual factors, and the extent to which judges stampede the factor outcomes to conform to the overall test outcome. It also presents empirical evidence of the extent to which lower courts either deliberately ignored or were ignorant of fair use doctrine set forth in the leading cases, particularly those from the Supreme Court. Based on these descriptive findings, the Article prescribes a set of doctrinal practices that will improve courts’ adjudication of the fair use defense.
Main Results of the Study
- Between 1976 and 2005, federal courts reported 306 opinions, 215 of which made substantial use the four factors of s. 107, which the author notes is a surprisingly small number.
- The Second and Ninth Circuit reported the highest number of cases and heavily influence other circuits even though the decisions are not directly precedential.
- The outcome of the case is heavily driven by the fourth factor (commercial use/effect on potential market) and less strongly driven by the first factor (purpose and character). Factor two (nature of copyrighted work) has no significant impact on outcome. Factor three (amount and substantiality taken) has minimal impact.
- The influence of other factors outside of s. 107, such as publication or bad faith, are also discussed as affecting outcome.
- Judicial decisions have consistently expanded the scope of the fair use defence.
Policy Implications as Stated By Author
More consistent and correct application of fair use law; transparency; certainty.
Coverage of Study
Datasets
| Sample size: | 107 |
| Level of aggregation: | Federal Judgement Opinions |
| Period of material under study: | 1978 to 2005 |
