From the framers of the Constitution, who were worried about books and pamphlets, to present-day stakeholders, who are concerned about DVDs, MP3s, and the Internet, the story of copyright law is an ongoing struggle to balance copyright holders' rights with the public interest. New technologies constantly challenge that balance.

In this lesson, students will examine the historical relationship between copyright law and technological innovation in the U.S. Working in teams, they will research a technology and assess how it may have affected users and copyright holders, as well as whether or not a public controversy resulted from its use. With this historical context in mind, students will then examine current copyright policy debates about music downloading and file-sharing.

Notes for the Educator

Modern copyright dates back to the English Statute of Anne, enacted in the 18th century, which gave authors an exclusive right, for 14 years, to copy and distribute their works. The right could be renewed just once, if the author was still alive when the right expired. The Framers of the U.S. Constitution considered this right important enough to include in the Constitution: Article 1, Section 8 of the Constitution authorizes Congress "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In 1790, Congress passed the first U.S. Copyright Act, which, like the Statute of Anne, gave authors an exclusive copyright for a 14-year term, with the possibility of renewal for another 14-year term. U.S. Copyright has undergone two major revisions since – in 1909 and 1976 – but has also been incrementally amended, particularly in recent years. One steady trend has been the lengthening of the copyright term from "14 + 14" to, as of 1998, "life + 70" (the life of the author plus 70 years).

Additional Context

Copyright law has always been a balancing act between the rights of creators and the rights of the public. As each new technology emerges, and as each new revision is made to copyright law, the balance shifts. It is along this edge of copyright that innovation flourishes, often leading to additional changes in the law.

For example, in 1976, Universal City Studios and the Walt Disney Company sued Sony, seeking to have the Betamax VCR impounded as a tool of piracy. In their view, there were virtually no noninfringing uses of the VCR, since home taping of television was thought to violate the copyright owner's reproduction right. The Supreme Court in 1984 disagreed, ruling that home taping of television programs for later viewing ("time-shifting") constituted a fair use.

Two aspects of the Betamax case are important for our purposes. First, most copyright scholars at the time felt that home taping would not qualify as fair use. In particular, a court had never before found a use to be fair where (1) the copyist reproduced the entirety of a work and (2) did so for a purely consumptive, nontransformative purpose. So, had you considered the shape of the fair use doctrine in 1976, you would probably have concluded that time-shifting was not a fair use. The Supreme Court in 1984 expanded the fair use doctrine in response to the new possibilities created by the VCR.

Speckled throughout the history of copyright law, the same pattern arises – wherever an activity has been deemed a fair use (and often even before, so long as a company is willing to gamble that it will be deemed a fair use), innovation flourishes as technology companies help the public to make the most of copyrighted works. Examples include the photocopier, the audio cassette deck, the CD-RW drive, and the web browser, among others. With the introduction of each new technology, copyright law is tested and evolves. This lesson should help students think about the current state of copyright's evolution in relation to the new technologies they use in their daily lives, such as P2P, YouTube, Facebook and MySpace.

Objectives for Students

• Compare and contrast two key moments in the history of U.S. copyright legislation.
• Identify and analyze the historical roles that industry, government, authors/artists, and the common citizen have played in copyright history.
• Clearly and effectively state opinions and facts either in an open debate or in a written format.

Activity Highlights

Starting the lesson with a question-and-answer review of Lesson 1's homework readings and the History Worksheet will help the class develop a solid footing in copyright basics before examining the effect that copyright law has on innovation and technology.

The in-class research activity has students work in groups, using the Law and Technology Timeline to guide research into technologies like the VCR, record albums, peer-to-peer file sharing software, etc. The Technology History Worksheet asks students to identify the key attributes of their assigned technologies and to consider how each technology empowered users in ways that copyright holders found to be counter to their interests. The student groups are encouraged to report their research findings in class, and pairs of groups are encouraged to talk about how their technologies are similar and different. The following notes may be helpful in leading the students to discuss the controversial aspects of the technologies.

Technology comparisons:

• VCR vs. Napster/GroksterSimilarities
  • Both technologies can be used to copy and share copyrighted work.
  • Both technologies revolutionized personal use of entertainment media.
  • Both made new forms of sharing possible:
    • An individual could use the VCR to record a TV program and lend it to neighbors, or even show it to a group at a community center or a church hall.
    • An individual could use peer-to-peer file sharing to share music files with friends and acquaintances.
  • Both technologies led to public legal controversies over whether or not copyright law should restrict the technology or limit aspects of the technology's development and use.

  Differences

  • Sharing a recording made on a VCR requires the exchange of physical media, which ultimately limits the number of copies that can be made. On the other hand, sharing via peer-to-peer software facilitates copying between many networked computers.
  • With respect to the VCR, the Supreme Court of the United States found that "time-shifting" (copying copyrighted TV shows for the purpose of watching them later) was a fair use.1 With respect to file-sharing software, the Supreme Court found that it was illegal for developers to "induce" users of its software to commit copyright infringement.
• LP (long play) album vs. MP3 filesSimilarities
  • Both technologies are used as a means of recording and playing music.
  • Both media could be transferred onto different formats and shared with others.

  Differences

  • LPs are physical media, whereas MP3 files are digital media. Digital media can be flexibly manipulated by a computer, whereas physical media can be much harder to copy, rearrange, and alter.
  • The resale of a used LP is a straightforward transaction protected by the first sale doctrine (it is legal to resell a copyrighted work that is lawfully acquired), whereas the ease of copying MP3 files means that resale of a purchased MP3 isn't as straightforward of a transaction.
  • Once purchased, LPs could be used by the consumer in many ways with few restrictions. MP3s, however, have until recently been sold with attempts to create legal, contractual, and technological restrictions on future uses.

For homework, students will be introduced to the modern copyright debate by representing a particular group (assigned by the educator), researching the group's opinions and arguments, and answering questions from the Stakeholders Worksheet. This will help prepare students for later assignments leading up to the mock trial in Lesson 5.

Resources

For the Educator

• Glossary of Terms

For the Student (in-class)

• Copyright History Worksheet
• Law and Technology Timeline
• Technology History Worksheet

• Computers and Internet access for research

For the Student (homework)

• Stakeholders Worksheet
• Computers and Internet access for research

Additional Reading

• Siva Vaidhyanathan, "Why Would Thomas Jefferson Love Napster?"
• Daniel J. Cohen & Roy Rosenzweig, "Digital History – Owning the Past: A Brief History of Copyright"

Lesson Activities

1. (10 minutes) After the students hand in the Copyright History Worksheet homework, start a general discussion using the readings as reference points.
   • Why did the framers include copyright in the Constitution?
   • What are the authors' points of view? Do you agree with them?
   • Are current copyright laws holding up the framers' original balance between creators and the public commons?
   • What do you think the framers would say about the current state of copyright laws and technology?
   • What would the framers think about the Internet and file sharing?
   • Why is copyright law important? What, if anything, would you change about the law?
2. (25 minutes) Place students in groups and assign each group a technology or invention from the Law and Technology Timeline. Consider assigning contrasting technologies – like the VCR for one group and peer-to-peer file sharing software to another group – allowing for comparative discussions later in the lesson. Have each group spend some class time researching the history of their technologies and writing down answers to the questions in the Technology History Worksheet
3. (20 minutes) Allow some time for each group to share its research with the class. Ask groups to compare and contrast their findings with the information gathered by other groups.
4. (5 minutes) Hand out the Stakeholders Worksheet and explain the homework assignment.

Homework

Assign each student a present-day interest group from the second page of the Stakeholders Worksheet and have that student assume that group's perspective on the question of music downloading and filesharing. Students' research should focus on the following issues for sharing with the class at the beginning of the next session:

• What is your group's opinion on the current state of copyright law?
• Do you advocate strengthening, maintaining, updating or abolishing the law? Why? What are the benefits?

Assessment

Students will hand in their Copyright History Worksheet at the beginning of class and the Technology History Worksheet at the end of class.

Extension Ideas

Ask each student to research and write a 1-2 page position paper about an important moment in copyright law.

• The students can take the voice and perspective of one of the parties involved in a precedent-setting legal case.
• The students can focus on a particular early technology, discussing how copyright law helped or hindered its development.
• The students can create their vision of the future of copyright law and technology: what should change about copyright law, if anything?

In this lesson, students will focus on defining the concept, purpose, and impact of fair use in U.S. copyright law. Students will refine their understanding of fair use through the lens of the increasingly popular remix culture of music, visual art, and video.

Notes for the Educator

Recent advances in technology have led to the increased malleability of media like text, music, and video. Concurrent advances in the speed and flexibility of communication have resulted in the growth of "citizen media," where amateurs and regular citizens are making use of copyrighted content in the process of civic engagement. Meanwhile, others are using copyrighted content to build a culture of remixes and mashups — essentially multimedia collages — exercising a great deal of wit and creativity in the process.

As an exception to copyright, fair use has been a key to the freedoms individuals have in interacting online. Fair use permits individuals to do things that could otherwise be deemed illegal under copyright law — like using clips from a television show in a video produced to comment on a controversy related to the television show. The copyright statute codifies the following four factors in weighing whether or not the use of a copyrighted work is a fair use:

• the purpose and character of the use
• the nature of the copyrighted work
• the amount and substantiality of the portion used
• the effect of the use on the market for the original

These four factors have been the basis for numerous court decisions about what is acceptable in art, commerce, and other areas where copyright law has an impact. You can find more explanation about these four factors in the Fair Use FAQ. Understanding the basics of fair use is critical to students' ability to make good decisions about what kinds of creation and sharing are legally protected — or not.

But learning about fair use is also an opportunity for students to encounter important civic concepts. For example, Congress codified several fair use principles in 1976, but those principles were based on, and have been further developed by, a series of important court decisions. This relationship between the statutes and the courts may provide a useful starting point for students to understand more about how law is made and developed.

Finally, because the question of whether a given work is protected by fair use usually depends on assessing the facts of the creation in light of the fair use "factors," a fair use inquiry is a great way for students to practice assessing facts, applying logic, and arguing for a particular conclusion — skills that they will exercise in the fair use mock trial in Lesson 5.

Objectives for Students

• Review the actors/stakeholders in the copyright debate.
• Examine the "four factors" and develop skills and tools to assess the difference between the fair use of copyrighted material and copyright infringement.
• Discuss the interrelation of fair use, free speech, and censorship, online and offline.
• Review digital video remixes and debate their legal merits using the concept of fair use.

Activity Highlights

The article "Illegal Art" introduces students to the ambiguity facing artists that use the work of others in the process of creating a new work, often in an attempt to comment on the original.

The two online videos presented to the class are examples of "remix" videos that make changes to existing media for the purpose of creating a new creative work. You will lead the class in evaluating the videos with respect to the four fair use factors. The Fair Use FAQ gives a comprehensive overview of the fair use factors, but here are some additional notes to consider in applying the factors to the videos in the lesson:

MoveOn's "Stop the Falsiness":
This parody video, created by the political advocacy group MoveOn and film company Brave New Films, uses footage from Comedy Central's "The Colbert Report" to make fun of the show and even MoveOn itself.
Purpose: The purpose of the original Colbert Report footage was to engage in one type of parody (varying according to the clip: environmental issues, for example). The purpose of MoveOn's remix video is to parody the Colbert Report and, to a lesser extent, parody MoveOn and raise awareness about its work. The clips are interspersed with commentary, creating a very different work from the original. Therefore, the second work is transformative, i.e., it changed the original into a whole new work, toward a different purpose. In addition, there is no evidence of commercial intent in the MoveOn remix video.
Nature of the Original Work: The original Colbert Report clips are creative. However, courts have held that this factor is less important when the second work is transformative.
Amount and Substantiality of the Copying: The MoveOn video uses a number of short clips. However, it takes no more than necessary to accomplish the transformative purpose.
Market Harm: The MoveOn video does not substitute for the original in any market — no one would watch this instead of the Colbert Report. Another argument in favor of its being decided to be fair use is that it is unlikely that the Colbert Report would have licensed use of the clips to parody the show itself. (Courts have held that market harm is particularly unlikely when a parody is involved, precisely because the creators of an original are unlikely to license for parodic purposes.)

"A Fair(y) Use Tale":
Purpose: The purposes of the original Disney footage vary by clip, but most were intended purely for entertainment. The purpose of the remix, "A Fair(y) Use Tale," is to educate viewers about fair use principles. Individual Disney works are combined in a new and creative (transformative) way to accomplish that purpose. The remix is noncommercial.
Nature of Original Work: The original Disney works are creative. However, courts have held that this factor is less important when the second work is transformative.
Amount and Substantiality of the Copying: The remix video takes a number of short clips from various sources. However, it takes no more than necessary to accomplish the transformative purpose.
Market Harm: The remix video does not substitute for the original Disney works in any conceivable market.

Remember to leave some class time to discuss the final project and to explain the Trial Guide that students are responsible for reading as homework.

Resources

For the Educator

• Fair Use FAQ
• Trial Guide for the Educator
• Glossary of Terms
• a computer, Internet access, and a projector OR a computer lab with Internet access (for accessing the online video clips relevant to this lesson)

For the Student (in-class)

• Stakeholders Worksheet
• Fair Use FAQ
• Trial Guide

For the Student (homework)

• Stakeholders Worksheet
• Trial Guide

Additional Reading

• Derek Slater, "Illegal Art," Creative Commons, 1 October, 2005.

Lesson Activities

1. Students will present their copyright stakeholder research to the class. Allow some time for questions.
2. (10 minutes) Read Derek Slater's article, "Illegal Art," with the class, and pose the following questions:
   • Do they agree or disagree with Slater's point of view?
   • Should music sampling, "remixed" video, and mashups be considered illegal?
   • Does current copyright law censor artistic expression and free speech?
3. (10 minutes) Using the Fair Use FAQ, outline the fair use factors for the class.
4. (30 minutes) Show your class the two online videos listed below. (If you have additional time, have your class view "Remix Culture," a great video compilation of fair use and the digital remix genre put together by the Center for Social Media at American University's School of Communication.) Poll the class and ask students to raise their hands if they think the videos qualify as fair use or infringe copyright. Now have the class evaluate each video's fair use status using the "four factors."
   • "Stop the Falsiness" (2:30 minutes)
     By MoveOn and Brave New Films. See EFF's MoveOn, Brave New Films v. Viacom case.
   • "A Fair(y) Use Tale" (10:13 minutes)
     By Professor Eric Faden, Bucknell University. See Stanford Law School's Fair Use Project.
   • Optional: "Remix Culture" (3:51 minutes)
5. (10 minutes) Pass out the Trial Guide to the students and use the Trial Guide for the Educator to explain the final class project. First, divide the students into two groups: plaintiff and defendant. For each group, ask for four volunteers to play the role of attorneys and one volunteer to play the role of plaintiff or defendant. (A total of 10 students should have speaking roles for the trial.) The remaining students will be jurors during the trial but will contribute to the plaintiff and defendant's arguments during preparation. Each group has to work closely as a team, as they must strategize a cohesive argument to present to the court.

Using the Trial Guide , students will begin to research, prepare, and write arguments for the mock trial of Walt Disney Studios v. Faden. Let them know that they should have fun and "dress the part" — encourage them to fully assume their legal roles.

Homework

Have students read the Trial Guide and begin research for the mock fair use trial of Walt Disney Studios v. Faden ("A Fair(y) Use Tale").

Assessment

Students will hand in their Stakeholders Worksheets at the end of class.

Extension Ideas

Using the Fair Use FAQ handout as a guide, ask your students to create an original art collage that parodies or comments on a pop culture figure, celebrity or band. Their projects can be done either as a physical poster or digitally on a computer. Their collages must include at least three original images (e.g., original drawings or photos), three copyrighted (fair use justified) images and three public domain images. See the Public Domain FAQ for resources. Remind the students that the collage itself is not protected under fair use unless it meets the four factors outlined in the FAQ. Students can share their works with the class at the beginning of the next session.

Peer-to-Peer File Sharing