Fair Use In The Digital Age: The Ongoing Influence of Campbell v. Acuff-Rose’s “Transformative Use Test” Campbell v. Acuff-Rose and the Future of Digital Technologies Matthew Sag, Transformative Use and Non-Expressive Use 1

2 300 years of copyright in 4½ minutes

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5 Reproduction + first sale Historically, the exclusive right to copy has been at the heart of copyright law. One way to think about copyright and technology is to study how successive inventions and innovations have changed the significance of reproduction. Printing press: Reproduction is primary exchange of value; first sale made this is very clean demarcation.

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7 Urbanization and public performance – performance also a source of value, performance rights gradually added and expanded Reproduction (includes mechanical rights) + Public Performance

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9 Urbanization and public performance – performance also a source of value, performance rights gradually added and expanded Reproduction + Public Performance + Broadcasting and re-broadcasting

10 Various technologies of disintermediation Photocopier, VCR … everything digital Personal copying that does not harm the market Increased opportunities for transformative use Significance of copying less clear Copy-reliant technology Copying that occurs as an intermediate technical step in the production of a non- infringing end product is a non-expressive use construction of search engine indices, the operation of plagiarism detection software library digitization to make paper books text-searchable. Technical copying without any expressive substitution

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Why Campbell matters Focus on expressive substitution vs. a loss of total control. When a use is transformative it is less likely to substitute for the for the author’s original expression. In the context of copy-reliant technology, the use is non- expressive and thus poses zero likelihood of expressive substitution. Should we call this transformative use, or recognize non- expressive use as a separate genre of fair use. 12

Related Publications: Matthew Sag, Copyright and Copy-Reliant Technology 103 N ORTHWESTERN U NIVERSITY L AW R EVIEW 1607–1682 (2009) Matthew Sag, Orphan Works as Grist for the Data Mill, 27 B ERKELEY T ECHNOLOGY L AW J OURNAL 1503–1550 (2012) Matthew Jockers, Matthew Sag & Jason Schultz, Digital Archives: Don’t Let Copyright Block Data Mining, 490 N ATURE (October 4, 2012) Somewhat Related Publications: Peter DiCola & Matthew Sag, An Information-Gathering Approach to Copyright Policy, 34 C ARDOZO L AW R EVIEW 173–247 (2012) Matthew Sag, Predicting Fair Use 73 O HIO S TATE L AW J OURNAL 47–91 (2012) Matthew Sag, The Pre-History of Fair Use 76 B ROOKLYN L AW R EVIEW 1371–1412 (2011) 13

About the author Matthew Sag Professor of Law at Loyola University Chicago School of Law. Web: Useful links: Publications Presentations Datasets 14