Deeplinks
Much of what we do online involves reproducing copyrightable material, changing it, and/or making new works. Technically, pretty much every original tweet is copyrightable. And the vast majority of memes are based on copyrighted works. Your funny edits, mashups, and photoshopped jokes manipulate copyrighted works into new ones. Effective communication has always included a shared reference pool to make points clearly understood. And now we do that online.
In other words, as the digital world has grown, so has the reach of copyright protections. At the same time, copyright and related laws have changed: terms have expanded, limits (like registration) have shrunk, and new rules shape what you can do with your stuff if that stuff happens to come loaded with software. Some of those rules have had unintended consequences: a law meant to prevent piracy also prevents you from fixing your own car, using generic printer ink, or adapting your e-reader for your visual impairment. And a law meant to encourage innovation is routinely abused to remove critical commentary and new creativity.
In the age of copyright creep, fair use, which allows the use of copyrighted material without permission or payment in certain circumstances, is more vital than ever. A robust and flexible fair use doctrine allows us to make use of a copyrighted work to make new points, critiques, or commentary. It allows libraries to preserve and share our cultural heritage. It gives us more freedom to repair and remake. It gives users the tools they need to fight back, in keeping with its core purpose—to ensure that copyright fosters, rather than inhibits, creative expression
The Supreme Court has an opportunity to ensure that the doctrine continues to do that essential work, in a case called Andy Warhol Foundation v. Goldsmith. At issue in the case is a series of prints by Andy Warhol, which adapt and recontextualize a photograph of the musician Prince. While the case itself doesn’t involve a digital work, its central issue is a fair use analysis by the Second Circuit that gets fair use and transformative works fundamentally wrong. First, it assumes that two works in a similar medium will share the same overarching purpos
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