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Fair Use and File Sharing in Research and Education University of Southampton Research Repository ePrints Soton Copyright © and Moral Rights for this thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", University of Southampton, name of the University School or Department, PhD Thesis, pagination http://eprints.soton.ac.uk UNIVERSITY OF SOUTHAMPTON FACULTY OF LAW, ARTS & SOCIAL SCIENCES School of Law Fair Use and File Sharing in Research and Education by Yueyue Wang Thesis for the degree of Doctor of Philosophy March 2009 UNIVERSITY OF SOUTHAMPTON ABSTRACT FACULTY OF LAW, ARTS AND SOCIAL SCIENCES SCHOOL OF LAW Doctor of Philosophy FAIR USE AND FILE SHARING IN RESEARCH AND EDUCATION by Yueyue Wang This work was inspired by the well-ventilated current problems around the use of digital file sharing technologies and their promotion of infringement of copyright leading to the alleged destruction of entertainment industries. Different legal systems have applied different analyses to such problems, and there is no clear and coherent answer to the question of whether file sharing, especially in the form of peer-to-peer (P2P), is legal. The particular focus of this thesis flows from the realisation that litigation around file sharing has uniformly explored it from the perspective of users downloading entertainment materials such as music and videos. Comparatively little attention has been paid to whether research and educational users have, or should have, rights to use the same digital file sharing technologies to access copyright materials important to their work. If digital file sharing is declared illegal by the courts at the behest of the entertainment industries, then what will happen to research and educational users of these networks? To explore this key problem, this thesis focuses on how fair use doctrine, the most important exception and limitation to copyright, has transferred from the traditional copyright environment into the context of digital file sharing. By undertaking a study of relevant legislation and cases, such as the well known Napster, Grokster and MP3.com, the “who” issue, namely, who is the party entitled to benefit from a fair use defence will be highlighted. Having established that fair use as a defence operates ineffectively in the digital file sharing environment, the thesis then looks at existing alternative or “fared” use models, and particularly the disadvantages of “fared” use system in serving research and educational file sharing. Finally the thesis turns to what is termed the “voluntary model”: a model in which copyright owners make their works available to academic users for free, via an institutional repository, the authors gaining non-pecuniary benefits while the commercial publisher being cut out as a “middleman”. Although future work to develop the details of this approach would be required, the thesis asserts this is a promising way towards ensuring access to copyright works in research and education thus benefiting society, whilst at the same time establishing fair compensation to authors for their efforts. Table of Contents Introduction……………………………………..………………………………..…..1 Part I. Background Issues…………………………………………………………… …......6 Chapter 1. Background to the Problem of File Sharing in Research and Education………………………………………………………………………….....6 1.1 File Sharing: Someone Knows What I Want to Know ……………………….....8 1.1.1 What is File Sharing?………………………………………………… .……..…...8 1.1.2 Technologies of File Sharing………………………………………………… ….12 1.1.3 Pros and Cons of File Sharing……………………………………………… .….28 1.2 File Sharing in Research and Education ……………………………………….35 1.2.1 Research and Education Defined...………………………………………… …..35 1.2.2 Technologies of File Sharing in Research and Education……………… …...39 1.3 Fair Use and File Sharing in Research and Education: The Problem…………..43 1.3.1 Academic File Sharing v. General File Sharing………………………… ……44 1.3.2 Fair Use and Academic File Sharing………………………………………50 1.4 Conclusion……………………………………………………………………...52 Part II. Fair Use and File Sharing……………………………………………………… .54 Chapter 2. The Baseline: Fair Use Doctrine and Legal Practice………………..….54 2.1 Granting Exceptions to Exclusive Rights: History of Fair Use Doctrine………58 2.2 Justifications for Fair Use in File Sharing………………………………….…..61 2.2.1 For Rightsholders' Interests: Market Failure Justification for Fair Use… ..63 2.2.2 For Social Benefits: The Public Interest Justification for Fair Use……… ...71 2.2.3 The Essential of Fair Use: Striking a Balance between Social Benefits and Rightsholders' Interests…………………………………………………………… ……73 i 2.3 General Policy Issues Embodied in Fair Use Doctrine…………………………76 2.3.1 The "Ought" Question or The "May" Question…………………… ...……… 77 2.3.2 The Three-Step Test: An Essential Principle for Fair Use Doctrine……… ..81 2.4 Legal Regimes of Fair Use Doctrine…………………………………………...83 2.4.1 The Open-ended Approach: The U.S. and Philippines Examples…… ……..83 2.4.2 The Exhaustive Enumerated Approach: Fair Use in Civil Law ……………86 2.4.3 The Fair Dealing Doctrine: UK Example………………………………… …...89 2.5 Conflicts in Current Fair Use Policy and Legal Practice……………………….92 2.5.1 A Case Study of the Internal Conflict: WTO Dispute on Section 110(5) of the U.S. Copyright Act ….............................................................................................93 2.5.2 An External Problem Examination: Fair Use and the U.S. First Amendment………………………………………………………………………………. .95 2.6 Conclusion…………………………………………………………………...…98 Chapter 3. Fair Use and File Sharing……………………………………………...100 3.1 The "Who" Issue — Taking Advantage of Fair Use in the Traditional Copyright Environment …………………………………………………………………..…..101 3.1.1 The Primary Infringer………………………………………………… ………..101 3.1.2 Copying by Third Parties……… …………………………………………..103 3.1.3 Copying for Third Parties…… ……………………………………………104 3.2 The "Who"? Fair Use in File Sharing Circumstances…………………………105 3.2.1 End-users and Technology Intermediaries Whose Users Make the Copies and May Have Defense of Fair Use ……………………………………… …..…….107 3.2.2 Technology Intermediaries Which Make Copies Themselves for Users Who May Have Fair Use Rights……………………………………… …...……………...117 3.3 The Fair Use Problem in the Context of Fair Sharing Unveiled……………....124 3.3.1 Destruction of "Purpose" for Fair Use………………………………..…..125 3.3.2 Destruction of "Private" Use……… …………………………………..…..126 3.3.3 Destruction of "Middlemen"……………… ………………………….…….126 3.3.4 Destruction of "Market" Interests…… …………………………………....127 ii 3.4 Conclusion………………………………………………………………....….129 Part III. Alternative Methods of Guaranteeing Fair Use for Educational Users in File Sharing……………………………………………… ………………………….....131 Chapter 4. Current "Fared" Use Models in the Context of File Sharing………….133 4.1 The Public Model: Levies, Taxes or Tariffs……………………………...…...133 4.1.1 History of the Public Model………………………………………….……133 4.1.2 Academic Proposals for Introducing the Public Model to Compensation for File Sharing…………………………………………………………………......135 4.1.3 The Public Model Practice ……………………………………………..…137 4.1.4 Evaluating the Public Model………………………………………………… ...152 4.2 The Private Model: Selling and Subscription Agreements……………………166 4.2.1 The Selling Contract Model: the U.S. iTunes Service ………………….....166 4.2.2 Evaluating the Private Model ……………………………………………..168 4.2.3 Analysis: Applying the Private Model to Academic File Sharing ………...173 4.3 Conclusion………………………………………………………………..…...174 Chapter 5. The Voluntary Model: An "Un-fared" Model…………………..……..176 5.1 The Voluntary Approaches: "Give it Away"……………………..…………...176 5.1.1 Early Ideas about the Voluntary Model…………………………………...176 5.1.2 Access to Knowledge (A2K): A New Approach to the Voluntary Model …179 5.2 Evaluating the Voluntary Model: Free as in "Free Beer"?……………………186 5.2.1 Advantages of the Voluntary Model ………………………………………187 5.2.2 Scepticism about the Voluntary Model……………………………………190 5.3 Comparison between the Public, Private and Voluntary Models………….….191 5.3.1 The Four Stakeholders ……………………………………………………191 5.3.2 Analysis……………………………………………………………………194 5.3.3 Illustration………………………………………………………………....198 5.4 Life Design of the Voluntary Model………………………………………..…200 iii 5.4.1 Rough Ideas around the Voluntary Model…… …………………………...200 5.4.2 Scepticism about the Design…… ……………………………………….....202 5.4.3 Completing the Design: The Quality Control Issue………..… …………....208 5.4.4 Completing the Design: The Awareness/Recognition Issue…………..…... .218 5.5 Conclusion……………………….. ………………………………………..…225 Conclusion………………………………………………………………………...227 Appendix ………………………………………………………………................231 Table of Legislation……………………………………………………………….266 Table of Cases ………………………………………………………………….....269 Bibliography………………………………………………………………………274 iv Acknowledgement The PhD writing process is a journey which involves excitement, stimulation, difficulties and confusions. Fortunately, I was accompanied by an awesome group of people who supported me in many ways. Foremost, I owe a deep gratitude to my supervisors. I would
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