Righting Copyright: Fair Use and “Digital
Environmentalism” by Robert S. Boynton, Bookforum (February/March 2005)
Boynton is director of New York University’s magazine journalism program.
Recent stirrings in legal theory may give some comfort to the activist wing of digital environmentalism. Taking for granted the fact that the problem is less the letter of intellectual property law than the spirit in which it is interpreted, Richard Posner, a federal appeals judge and prolific legal theorist, and others have suggested some ways to remedy this problem.
Foremost among them is the doctrine of “copyright misuse.” In his California Law Review article “Fair Use and Statutory Reform in the Wake of Eldred,” [92 CALIF. L. REV. --- (2004)] Posner argues that it is more valuable, and feasible, to strengthen fair-use practices than to lobby for new copyright laws.
The problem with the current system, according to Posner, is that copyright owners systematically make improperly broad claims to their rights.
…Posner argues that when a copyright holder affixes a warning on copies of his work that “grossly and intentionally exaggerates the copyright holder’s substantive or remedial rights, to the prejudice of publishers of public-domain works, the case for invoking the doctrine of copyright misuse” has been made.
Are libraries willing to challenge copyright misuse in order to protect fair use? Or are we only willing to avoid risk and be the enforcers for the “intellectual property” industries? Boynton notes that the logic of the Constitution’s granting copyright as an incentive “has been overshadowed by the logic of reward, the thinking being that if my work continues to have value, why shouldn’t I profit from it for as long as I want?”
Will libraries defend that logic or the logic of the Constitution?
