Despite the cries of some commentators that copyright law is dead (or at least that they wish it was),[1] copyright law is fully capable of responding to the challenges posed by the new technologies of the digital revolution. Copyright law initially developed in response to the invention of the printing press,[2] and has a long history of addressing changes in technology.[3] Where Congress has not explicitly made provisions for the new technology, the courts have stretched statutory interpretation and common law doctrines to do so. The courts' express goal in fitting existing copyright law to new technologies has been to strike a balance between stimulating artistic creativity through the limited monopoly provided by copyright and providing "broad public availability of literature, music and the other arts."[4]

To this end, the common law,[5] and eventually Congress, provided a safe harbor to those who use another's work for the purposes of "criticism, comment, news reporting, teaching . . . scholarship, or research".[6] When someone reproduces a copyrighted work for one of the enumerated purposes, the courts may find that there was no infringement under the fair use doctrine. Congress specified that the courts were to apply a four-factor test in determining whether any specific use is a fair use.[7] The four parts of the test are:

(1) the purpose and character of the use, including whether such use is of a commercial nature of is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.[8]

The new technologies of the digital revolution, in particular multimedia development, seem to cry out for the application of the fair use doctrine. As of this time, however, none of the federal appellate courts have considered the application of fair use doctrine to the new technologies of the digital revolution. The Supreme Court considered the application of the fair use doctrine to a predecessor of digital technology, the Betamax Video Cassette Recorder ("VCR"). However, the focus of the Supreme Court's opinion in Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, 430 (1984) was the issue of contributory copyright infringement of television programs' copyrights.[10] Although the Court clarified the fair use doctrine, emphasizing that it is an "equitable rule of reason" and that all four statutory factors must be balanced against one another,[11] fair use was a small part of the Court's analysis. It was the central issue of a subsequent case, Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164 (1994), but this case involved musical parody rather than technology.[12] Notably, however, Acuff-Rose reversed the trend among the lower courts to over-emphasize the commercial nature of the use such that commercial uses were presumptively barred from employing the fair use doctrine as a defense.[13] This reversal clearly has important ramifications for multimedia technology, much of which is purely commercial in nature.[14]

Although neither Sony nor Acuff-Rose directly addressed the application of the fair use doctrine to digital technology, these cases laid important groundwork. The Circuit Courts have built upon this groundwork, and although they have not yet applied fair use to digital technology, either, at least one court has applied the doctrine to the analogous technology of photocopying.[15] In American Geophysical Union v. Texaco, Inc., 37 F.3d 881 (1994), the Second Circuit held that copying of eight articles from the Journal of Catalysis by one of Texaco's researchers was not fair use.[16] The Texaco opinion is particularly instructive as it builds on the Acuff-Rose opinion and carefully balances the four factors of the fair use doctrine.[17]

In his article on multimedia and fair use, Goldberg argues persuasively that Texaco leads the way for multimedia developers to find a safe harbor in the fair use doctrine.[18] However, Goldberg defines multimedia too tightly to give comfort to many developers or lay users of the new digital technology. Following Michael D. Scott,[19] Goldberg defines multimedia as having five essential characteristics: it 1) involves more than one media, 2) is adaptable for a variety of uses, 3) is delivered through CD-ROM, computer networks, or HDTV, 4) is stored in digital form, and 5) is interactive.[20] This definition excludes multimedia presentations which abound in the corporate world and in daily personal use. For example, presentations made by competing law firms in "beauty-pageant" competitions for a corporation's business might use graphic images and text (multiple media), might be delivered through digitally projecting a computer screen on which the presentation "played," and might be stored in digital form (saved on the firm's computer network). However, under Mr. Goldberg's definition, this would not be a multimedia production because the presentation had a single use (education of the audience)[21] and was not interactive (the presentation advanced from screen to screen automatically). Similarly, a "Seinfeld" screen saver made by a lay consumer out of sound clips from the popular television program and images of the shows downloaded from the Seinfeld web-page would not be a multimedia presentation because it has a single use (entertainment) and is not interactive. Although a broader definition does risk the "slippery slope of over-inclusion" against which Mr. Goldberg warns,[22] defining multimedia too narrowly risks excluding broad applications of the new digital technologies from this general discussion.
¶5
However, such broad considerations might be best left to the legislature. The courts will address the problem of the new technologies, if at all, through discrete facts. Furthermore, the courts are careful to consider applications of the fair use doctrine on a "case-by-case" basis.[23] Therefore, it may be instructive to describe a hypothetical use (which would not qualify as multimedia under Mr. Goldberg's definition) and then apply the fair use doctrine to this use.

Merry Hill Hotels is an international hotel chain with several thousand employees. Recently, Merry Hill has received complaints from guests about general unhelpfulness and poor attitudes among service staff at the hotels. Merry Hill executives have determined that the company should address this problem as part of its biannual conference for hotel managers. The Merry Hill management committee has delegated the task of designing a seminar on "Team-building in the Service Environment" to the new Vice President of Human Resources. This seminar is designed to teach Merry Hill managers to improve hotel staff morale by treating all staff as integral members of a team.

The Merry Hill Vice President of Human Resources approaches her old friend, Professor Erstwhile, a communications professor at Prestigious University. Professor Erstwhile agrees to create a 30-minute presentation for Merry Hill that the company can show at the seminar. The Merry Hill VP emphasizes that the presentation has to be accessible to hotel managers at all levels of experiences and ability. Professor Erstwhile knows from his research that people learn better if more than one sense is stimulated,[24] so he decides to put together a "multimedia" presentation, using a video display that incorporates still images, video clips, text, and a narrative soundtrack.

Professor Erstwhile is a busy man, so after creating an outline of the presentation, he enlists the help of an undergraduate student, Max. Max is facile with the computer program Persuasive 10.2 for Windows, which Professor Erstwhile plans to use to compile the video and audio portions of the presentation. The Merry Hill VP can then load the Persuasive file into a computer at the seminar and the computer will run the presentation by projecting the video onto a large screen while the audio plays through the computer's speakers.

Max types up some fancy "slides" on Persuasive, illustrating the Professor's key points. Then Max begins looking for ways to spice up the text. He finds some nice "clip art" of people's faces and bodies on the Computer Science department's "Clipables Gold" CD-ROM. He cuts and pastes the clip art together to create scenes of people interacting, and then runs the clip art through his "Paint Pro 4.1" program to add color and texture to the black and white clip art. Professor Erstwhile is pleased with the resulting montage, but thinks these scenes are too generic and asks Max to tailor them to the hotel industry. Having exhausted his clip art library, Max looks around for inspiration. He finds some nice images in the "Food" column of the Boston Globe (conveniently available in the University library). Using his scanner, Max digitizes three of the Globe's photographs. Then he cuts and pastes pieces of these photographs into six of the clip art montages to make them relate to the service industry. Max also runs the Globe pieces through Paint Pro 4.1 to give the black and white images color and texture.
¶10
Inspired, Max decides what the presentation really needs is a video clip of the scene in "When Harry Met Sally..." where Meg Ryan simulates an orgasm over a large sandwich. To Max's delight, he finds a Meg Ryan "web-page" on the Internet which has a 20-frame video clip of the scene and the accompanying sound track. Max downloads the audio and video clips[25] and loads them into Persuasive. Professor Erstwhile reviews Max's video and agrees that the "When Harry Met Sally..." clip adds a great deal to his point. The Professor then tapes his narration into a sound file in Persuasive and the presentation is ready to go.[26]

The presentation is a huge success. Merry Hill's managers are inspired. Guests stop complaining. Merry Hill is so pleased with the presentation that the company shows it at training seminars for new staff, executive conferences and board meetings as well.

However, Merry Hill's attorneys, who see the presentation at a board meeting, are not so enthusiastic about the presentation. They worry about copyright issues relating to the presentation, the most glaring of which is the use of the film clip from "When Harry Met Sally...". The Merry Hill attorneys convince the management that if the company is to continue using the presentation, as it very much wants to do, then it should seek permission for the use.

The Merry Hill attorneys talk with Professor Erstwhile and Max to explore the copyright issues associated with the presentation. Max describes the process he went through to create the presentation's video component, including the borrowed images from the "Clipables Gold" CD-ROM and the Boston Globe, as well as the film clip.

The Merry Hill attorneys separate the problem into two distinct issues. First, they have the still-image montage which Max compiled from the "Clipables Gold" CD-ROM and the Boston Globe photographs. Second, they have the film clip. Merry Hill management gives its attorneys the go-ahead to contact the various copyright holders to try to negotiate permission to reproduce their works in the presentation.
¶15
The Merry Hill attorneys first turn their attention to the "Clipables Gold" CD-ROM, which they believe does not involve any copyright issues. After checking the copyright notice on the CD-ROM's shrink wrap and speaking to the publisher's in-house legal representative,[27] the Merry Hill attorneys are confident that Max's use was within the provisions of the license.

The Merry Hill attorneys then address the issue of the images from the Boston Globe. They contact the Globe's in-house counsel to seek permission for the use of the pieces of the photographs (to which the Globe holds the copyright). The Globe agrees to give permission, but it wants a hefty royalty payment. The Merry Hill attorneys do a little research and inform management that the prudent course is to pay the royalty, but if management decides not to (and it is, after all, a lot of money for something that doesn't directly affect Merry Hill's profitability), they might have a good defense under the fair use doctrine. Merry Hill decides against paying the Globe the royalty fee.

Finally, the Merry Hill attorneys approach Castle Rock Entertainment, Inc., the holders of the "When Harry Met Sally..." copyright. Castle Rock is not happy about the use of the film clip in the presentation. Moreover, Castle Rock has heard that this film clip is being widely "pirated"[28] and decides to draw the line with Merry Hill's use. Castle Rock refuses permission to use the film clip and demands that Merry Hill stop using it. Castle Rock faxes a "cease and desist" letter to Merry Hill the next day, threatening legal action. The Merry Hill attorneys do a little investigation and tell management that the most prudent course would be to stop using the film clip, but if management wants to continue using the presentation as it is, then Merry Hill has a good defense under the fair use doctrine. Merry Hill management decides that the presentation is important enough to fight for. Castle Rock files for an injunction. When the Boston Globe hears about the injunction, it follows suit. Merry Hill brings a motion in opposition to the joint injunction, arguing that neither of the uses constitutes infringement under the fair use doctrine.

A District Court considering whether or not to grant an injunction would have to consider the likelihood of the plaintiff's success on the merits at trial.[29] The court would consider the application of the fair use doctrine to the defendant's use of the Castle Rock clip and the Globe photographs, and following Sony, Acuff-Rose and Texaco, might indeed find that neither use constitutes infringement.

As noted above, the fair use doctrine involves a four-part analysis in which the court must consider:

(1) the purpose and character of the use, including whether such use is of a commercial nature of is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.[30]

In the first factor, "purpose and character of use," Congress directed the court to inquire as to whether the work for commercial or non-commercial (educational) purposes.[34] Although the first factor favors uses that are non-commercial, the Supreme Court has made it clear that the inquiry does not end there.[35] In Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985), the Court affirmed the common law doctrine which favors productive or "transformative" uses.[36] In Acuff-Rose, the court emphasized the importance of the "transformative" element, holding that while "transformative use is not absolutely necessary for a finding of fair use . . . the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use."[37] Given these glosses, the "purpose and character" factor, becomes something of a sliding scale, as the following diagram illustrates:

In applying the first factor to Merry Hill's uses, the court might immediately note that Merry Hill is a "for profit" company, which would tend to tip the scales against Merry Hill on this factor. However, the Second Circuit's opinion in Texaco emphasized that the courts need to distinguish between "a direct commercial use" and an "intermediate use."[38] Merry Hill's use of both the Globe photographs and the Castle Rock film clip was not directly related to Merry Hill's "profits, revenues and overall commercial performance."[39] Although the use did have commercial benefits (improving staff morale may have led to improved customer relations and increased profits, a fact which tends to defeat any argument by Merry Hill that its use was purely educational), Merry Hill's use was more of an "intermediate use" than a commercial use. Thus, within the sliding scale of the first factor, Merry Hill's "intermediate use" would not tip the scales against Merry Hill.

The court would then consider whether Merry Hill's use was "transformative." It is in this area of the analysis that multimedia has a great advantage over the photocopying technology considered in Texaco. The Texaco court found that, while there might be some independent value in transforming the articles in a bound journal into freestanding copies, photocopying did not rise to the level of transformation.[40] The Texaco court noted that the purpose of the photocopies was the same as the original, "thereby providing limited justification for a finding of fair use."[41] The courts look for transformation both in character and purpose.

Multimedia, by its very nature, is transformative.[42] Merry Hill's use of the Globe photographs transformed the Globe's black and white newspaper images into part of a color montage of images. Similarly, the presentation took a short clip of Castle Rock's property out of the larger context of the motion picture and set it within a multimedia presentation on entirely different subject, giving the video clip new context and meaning. In both structure and purpose, this use is highly transformative. In structure, both the photographs and the film clip are part of a new work. The photographs have been transformed in appearance as well, from black and white newsprint to colorized digital images. In purpose, the modified photographs and film clip are being used for completely different purposes (education of hotel managers on how to increase staff morale) than their original design. In sum, Merry Hill's uses slide far along the spectrum towards transformative use. Taken together with the "intermediate nature" of the use, this finding of transformative use seems to tip the scales for the defendant on the first factor.
¶25
The second factor, "nature of the copyrighted work," focuses on the content itself and whether the content is of the kind that should receive copyright protection. The essential distinction for the purpose of the second factor is whether the work is factual or non-factual. The Supreme Court has held that "the law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy."[43] The practical application of this rule is somewhat counterintuitive, because it means that copyright law denies protection in order to encourage dissemination.[44] Thus, copyright offers the least protection for factual works, to encourage their dissemination, and the most protection for works of fiction.[45] In terms of the second factor, factual works are generally not the kind of work which should receive copyright protection, so where a factual work has been used, the second factor favors the defendant.[46] The Supreme Court emphasized in Harper & Row that the creativity of an original work weighs against finding fair use.[47]

Applying the second factor to the Merry Hill hypothetical, the outcome is uncertain.[48] The defendants will argue that the photographs and film clip are factual in nature; the plaintiffs will argue that they are fictional, and deserving of heightened protection. Which argument the court accepts will be a judgment call. The Supreme Court established in Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), that photographs involve creative selection and arrangement which make them the "original mental conception[s]" of the photographer.[49] However, this does not answer the question of whether a photograph is generally factual in nature (in that the objects pictured exist in the world) or a work of fiction (in that the selection and arrangement of the photograph is as much an invention of the photographers mind as a work of literary fantasy). Consideration of the film clip does not clarify the situation, for it might be thought of as a series of photographs strung together with accompanying sound which also involves creative selection and arrangement of existing objects,[50] and thus is arguably both factual and fictional in nature.

Comparing these works to the Journal of Catalysis articles in Texaco, which the court found to be of "manifestly factual character," helps clarify the court's analysis but does not completely resolve the issue.[51] The Catalysis articles consisted of scientific research, charts and graphs.[52] The plaintiff in Texaco argued that although the articles reported factual information, they were "expressions of highly original, creative and imaginative thinking."[53] The Second Circuit agreed that "a significant measure of creativity was undoubtedly used in the creation" of the articles, but held that they were "manifestly factual" in nature.[54] The Globe photographs and Castle Rock film clip also relate factual information, but do so in a highly original way. Since it is the express policy of copyright law to promote creative endeavor by protecting it under the aegis of copyright,[55] a court might find in favor of the plaintiffs on the second factor even where there is some question about the nature of the work.

The third factor, "amount and substantiality of the portion used" in relation to the whole, involves two different considerations. The court first looks at the amount of the original work used in the new work. If the whole original has been used, this generally "militat[es] against a finding of fair use."[56] Where less than the whole work has been used, the court looks at how much has been taken. A large borrowing may be presumptively infringing, but even a small amount of borrowing can trigger a finding against the defendant on this factor when the second consideration comes into play. The second consideration is the "substantiality" of the portion used, by which the court examines whether the borrowed material represents the "heart" of the original.[57] In Harper & Row, for example, the Court found that the defendant had only borrowed material which constituted 13% of the original.[58] However, the Court still found against the defendant on this factor because the borrowed material was "the most interesting and moving parts" of the original.[59] In this analysis, the third factor slides into the fourth, because the courts clearly consider whether the new work, incorporating the borrowed material, could supersede the original.[60] This consideration, strictly speaking, belongs in the analysis of the fourth factor (effect of the use on the market for the original).

In applying the third factor to the Merry Hill hypothetical, a court would likely find for the defendant. Hapless Max borrowed only bits and pieces of the Globe's photographs and only 20 frames of Castle Rock's film. These uses clearly fall far outside the presumption against fair use where the whole work has been used. Although the Second Circuit has upheld a ruling that using 55 seconds of a 89 minute film is a substantial use,[61] it is unlikely that a court would find that such small pieces, particularly 20 frames of a feature-length motion picture, are substantial.[62] Although the fake-orgasm scene is memorable, it is not the "heart" of the long motion picture. Nor is it logical that such a short clip could supersede the original in the motion picture market.[63] The issue of the Globe's photographs is slightly more troubling in this regard, since the pieces taken out of the old may, in fact, be the "heart" of the old photographs. Similarly, the new montage might have the same function as the original photograph and therefore supersede it. In this particular case, a montage of colored and texturized clip art and the pieces from the Globe photographs are unlikely to be useful in the Globe's "Food" column. However, the courts will clearly have to consider this question on a case-by-case basis.
¶30
The fourth factor allows the court to consider the potential effect of the new work on the potential market for the old.[64] This analysis does not necessitate a showing of lost profits by the plaintiff,[65] but only that if the challenged use "should become widespread, it would adversely affect the potential market for the copyrighted work."[66] However, the "potential market" for the original work is not wide open. In Twin Peaks Productions, Inc. v. Publications International, Ltd., 996 F.2d 1366 (2d Cir. 1993), the court held that the fourth factor should favor the defendant where "the defendant's work filled a market niche that the plaintiff simply had no interest in occupying."[67] Thus the plaintiff cannot foreclose all potential markets of the original work and its derivations by claiming adverse effect of the new work on a "potential market" of the original.

Examining the Second Circuit's analysis in Texaco may help clarify this somewhat ambiguous factor. There, the court saw a clear relationship between the defendant corporation's unauthorized photocopying of the Catalysis articles and lost revenues for the journal.[68] Had the Texaco researcher not made the photocopies, the corporation would have paid the journal's publishers for more copies, or paid for a photocopy license.[69] Since the researcher did make the copies, the corporation did not pay for more issues or a photocopy license. The court specifically noted that such a licensing arrangement was readily available.[70] In total, although the researcher's use did not significantly harm the plaintiffs,[71] the Second Circuit held that on balance, the fourth factor favored the plaintiffs.[72]

There are, then, three considerations for the court in applying the fourth factor to the Merry Hill hypothetical. The first is whether the use has a negative impact on the market for the original. Second, under Twin Peaks, whether the use has negative impact on a limited scope of potential markets for the original. And the third, under Texaco, is whether there is a readily available mechanism for obtaining permission for and paying royalties on the use.

The court would in all likelihood find in favor of Merry Hill regarding the use of the film clip. First, as noted above, it is clear that Merry Hill's use of the film clip would not negatively impact the market for the original film. In fact, it might serve as positive advertisement of "When Harry Met Sally..." by titillating the interest of people who have not seen the film and reminding those who have how funny the film was. Second, there is no evidence that Castle Rock has used or plans to use the film clip in its own entrance to the multimedia market, if any such entrance is made. The court is unlikely to find, then, that Merry Hill's use effects the potential multimedia market for the original work. Third, Castle Rock denied Merry Hill permission to use the film clip. There was, therefore, no readily accessible way for Merry Hill to license the use of the clip. All three considerations favor the defendant in this situation, and multimedia developers in general whose works do not compete with the original work and who have had extreme difficulty licensing content.

The court might have more difficulty determining whether Merry Hill's use of the Globe photographs harms the market for the original. As noted above, the resulting image (the montage of clip art and Globe photograph pieces) might be used by a newspaper in place of a photograph. The outcome of this consideration would be highly dependent on the resulting image itself. To prevail on this issue, Merry Hill would have to shift the focus of the argument from the market of the specific photograph to the larger market of the Boston Globe newspaper. There is no evidence that Merry Hill's use would adversely affect sales of the Boston Globe newspaper. If a court accepted this argument, it would likely find for Merry Hill on the first two considerations. The final consideration weighs heavily for Merry Hill. Although the Boston Globe did not deny permission to use the photographs, it imposed a "heavy" royalty for the use. The courts have acknowledged that "as a general matter, a copyright holder is entitled to demand a royalty for licensing others to use its copyrighted works."[73] But this royalty must be reasonable, or the effect is the same as denying permission for the use. Here, the Globe demanded an excessive royalty, particularly in light of the fact that the presentation was not directly profit-making. This is, as noted above, the experience of many multimedia developers in trying to license content. A court weighing these considerations is likely to find for Merry Hill regarding the company's use of the Globe photographs.
¶35
On balance then, three of the four fair use factors favor the defendant. In particular, the fourth factor, which the Supreme Court has indicated weighs more heavily than the other factors,[74] falls on the side of Merry Hill in this hypothetical, and on the side of multimedia developers in general. Clearly, multimedia developers have a stronger case on the fourth factor when the original material is something like a film rather than a photograph, but a court balancing the equities is likely to find for the developer even where a photograph is involved.

Legislative Response: Compulsory Licenses

The preceding analysis shows that multimedia designers might find a safe harbor in the fair use doctrine. However, there are clear limitations on this safe harbor. For example, a developer who wanted to use a longer film clip, say two minutes of a feature length movie, in a multimedia presentation designed solely for commercial use (like a game) probably falls outside the boundaries of the fair use doctrine. Similarly, an artist who montaged together several photographs from the covers of magazines, arranged the pieces creatively to give them new meaning, and sold the resulting image to another magazine might fall outside the fair use doctrine.[75] Treading the fair use "line" may still serve to squash the development of the multimedia industry, particularly commercial applications. The courts cannot be expected to stretch the fair use doctrine to cover these situations. Instead, the legislature should respond.

A model response, which might address the concerns of both content holders and developers, may be found in the music industry. Responding to concerns that monopoly control and pricing would prevent widespread use of the new phonograph technology, Congress enacted Section 115 of the Copyright Act, which provided for compulsory licensing.[76] Section 115 breaks the monopoly producers have on the recorded music and sets a statutory royalty.[77] Although the music industry's response might not be exactly what Congress envisioned,[78] the music industry has boomed under this regulatory scheme.

The problems in the nascent phono-record industry that Congress sought to address through Section 115 of the Copyright Act are the same problems facing the new multimedia industry today. Compulsory licenses in the multimedia industry would break the stranglehold content holders currently have on the development of new multimedia titles. Content holders could not "refuse to deal" with developers under a compulsory licensing scheme.[79] Furthermore, if the media industry responded as the music industry has to compulsory licenses, namely by creating a clearing house to facilitate collecting and distributing royalties, such a clearing house would reduce the often prohibitively high transaction costs developers currently face when seeking licenses from many different parties who may have an interest in a single work.[80]

Despite these advantages, it is hard to find support for expanding compulsory licensing into other forms of art. The current political administration seems committed to stretching traditional copyright law to address the issues raised by the new technologies.[81] Critics of this approach worry that stretching current copyright law, particularly in a way that meets the interests of big business, will smother the advantages the new technologies offer.[82] Although the fair use doctrine can be stretched to address the specific needs of a certain type of multimedia developer, it should be clear from the foregoing discussion that fair use cannot address the larger issues posed by the new technologies.
¶40
Academics who have examined compulsory licensing are not lining up to endorse the idea, either. Some argue that compulsory licensing, even in the music industry, goes far beyond the copyright scheme envisioned by the Framers and that, as applied by the federal judiciary, it is unconstitutional.[83] Others are concerned that compulsory licenses will prove a "bad fit" for visual images which are not as fungible (in the sense of duration and packaging) as recorded music.[84]

Responding to the argument that compulsory licenses exceed the copyright scheme of the Framers could occupy another essay of comparative length. Without engaging in such a lengthy discussion, this author admits that compulsory licenses go far beyond what the Framers intended. However, modern technology has also gone far beyond what even the most insightful Founding Fathers could have envisioned. Copyright has to respond to changing technology, lest it become truly archaic, as some already charge.[85] Similarly, the author admits that visual images are not as neatly quantified as sound recordings, and that a single, statutory royalty payment will not fit visual images. However, to throw out the idea of extending compulsory licenses into the visual image arena simply because of problems with "fit" is to throw the baby out with the bathwater. The current compulsory licensing scheme under Section 115 is tailored to the sound recording industry. There is no reason why Congress could not tailor the idea of compulsory licensing to the specific needs of the visual media industry.

In conclusion, the judiciary can only play a part in addressing the issues raised by the new technology. Congress has to play its part as well. Ignoring the challenge by stretching the old law is inadequate. Congress must act to protect and encourage the development of multimedia technology, which could be a great tool for the dissemination of knowledge. Extending compulsory licenses to the visual media industry is but one response. No matter what path the legislature chooses, it must stay true to the aims of copyright law and further the public good by facilitating the spread of knowledge, rather than bowing to the interests of big business.

Footnotes

fnA Pamela R. O'Brien is a 1997 graduate of Boston College Law School. She currently works as an Associate in the Litigation Department of Sherburne, Powers & Needham, P.C.
[1]See John C. Dvorak & Paul Somerson, Hands off that scanner! The media police are on your trail, PC-COMPUTING, Nov. 1992, at 104.
[2]See Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, 430 (1984).
[3]See id. at 430, n. 11.
[4]Id. at 431 (quoting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975)).
[5]See generally Folsom v. Marsh, 9 F. Cas. 342 (1841).
[6]17 U.S.C. § 107.
[7]Id.
[8] Id.
[9]Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 1170 (1994) (quoting Stewart v. Abend, 495 U.S. 207, 236 (1990)).
[10]Sony, 464 U.S. at 456.
[11]Id. at 448-451.
[12]See Acuff-Rose, 114 S. Ct. at 1169.
[13]See id. at 1174 ("The Court of Appeals's elevation of one sentence from Sony to a per se rule thus runs as much counter to Sony itself as to the long common-law tradition of fair use adjudication. Rather, as we explained in Harper & Row, Sony stands for the proposition that the fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use." [internal quotations omitted]).
[14]See Jonathan Evan Goldberg, Comment: Now That the Future Has Arrived, Maybe the Law Should Take a Look: Multimedia Technology and its Interaction with the Fair Use Doctrine, 44 AM. U.L. REV. 919, 932 (1995).
[15]See id. at 945.
[16]Texaco, 37 F.3d at 884.
[17]See Goldberg, supra note 14, at 944.
[18]See id. at 944-45.
[19]MICHAEL D. SCOTT, MULTIMEDIA: LAW AND PRACTICE § 1.01, at 3 (1993).
[20] See Goldberg, supra note 14, at 927-28.
[21]Mr. Scott defines "adaptability" as suitability for several different purposes, including education, training, sales and entertainment. See Scott, supra note 19, § 1.01, at 4.
[22]Goldberg, supra, at 927, n. 47.
[23] Acuff-Rose, 114 S. Ct. at 1170 .
[24]See Goldberg, supra note 14, at 934, n. 99 (citing studies showing that people learn more when several senses are stimulated).
[25]Collectively hereafter the "film clip."
[26]Note that Professor Erstwhile's presentation would fail to qualify as "multimedia" under Mr. Goldberg's definition because it is not interactive.
[27]Telephone Interview with Ms. Lanae Nelson, WizardWorks Group, Inc. (Dec. 9, 1996). Whether WizardWorks Group can actually prevent the resale of its software through such a license given the first sale doctrine is an interesting question, but unfortunately outside the scope of this essay.
[28]See Jim Seymour, The Multimedia Copyright Swamp, PC MAGAZINE, Feb. 23, 1993, at 99.
[29]The first part of the standard for granting injunctive relief. See, e.g., Benten v. Kessler, 505 U.S. 1084, 1085 (1992).
[30]17 U.S.C. § 107.
[31]See Sony, 464 U.S. at 448.
[32]See Goldberg, supra note 14, at 942-43 (citing problems with the fair use doctrine, including that courts have overemphasized the fair uses listed by Congress, such that "defendants have been unable to escape a finding of copyright infringement when a proper analysis would have revealed fair use.").
[33]Harper & Row, 471 U.S. at 561.
[34]See 17 U.S.C. § 107.
[35]See Acuff-Rose, 114 S. Ct. at 1174.
[36]See Harper & Row, 471 U.S. at 561 ("a productive use is simply one factor in a fair use analysis").
[37]Acuff-Rose, 114 S. Ct. at 1171.
[38]Texaco, 37 F.3d at 889.
[39]Id.
[40]See Goldberg, supra note 14, at 948.
[41]Texaco, 37 F.3d at 891.
[42]See Goldberg, supra note 14, at 954.
[43]Harper & Row, 471 U.S. at 563.
[44]See Texaco, 37 F.3d at 893.
[45]See Goldberg, supra note 14, at 948.
[46]See Texaco, 37 F.3d at 893.
[47]See Harper & Row, 471 U.S. at 563.
[48]Many multimedia developers will borrow information that is clearly factual, and this will give those defendants a stronger case than the hypothetical.
[49]Sarony, 111 U.S. at 60.
[50]Borrowing a film clip that involved special effects, or images of things that do not exist in the real world, would complicate this analysis even further.
[51]Texaco, 37 F.3d at 893.
[52] See Texaco, 802 F. Supp. 1, 16 (S.D.N.Y. 1992), aff'd, 37 F.3d 881 (2d Cir. 1994).
[53]Texaco, 37 F.3d at 893.
[54]Id.
[55]See Sony, 464 U.S. at 431-32.
[56]Id. at 450.
[57]Harper & Row, 471 U.S. at 565.
[58]See id.
[59]Id.
[60]See Texaco, 37 F.3d at 894 ("we are sensitive to Texaco's claim that the third factor serves merely as a proxy for determining whether a secondary use significantly interferes with demand for the original").
[61]See Roy Export Co. v. Columbia Broadcasting Systems, 503 F. Supp. 1137, 1145 (S.D.N.Y. 1980), aff'd, 672 F.2d 1095 (2d Cir.), cert. denied, 459 U.S. 826 (1982).
[62]Note that the Society for Cinema Studies considers using up to 100 frames fair use. See Rick G. Morris, Use of Copyrighted Images in Academic Scholarship and Creative Work: The Problems of New Technologies and a Proposed "Scholarly License", 33 IDEA J.L. & TECH. 123, 128 (1993).
[63]See Goldberg, supra note 14, at 955.
[64] See 17 U.S.C. § 107.
[65]See Sony, 464 U.S. at 451.
[66]Id.
[67]Twin Peaks, 996 F.2d at 1377.
[68]See Texaco, 37 F.3d at 896-99.
[69]See id. at 896-97.
[70]See id. at 898-99.
[71]See id. at 896.
[72]See id. at 899.
[73]Id. at 897.
[74]See Harper & Row, 471 U.S. at 565 ("This last factor is undoubtedly the single most important element of fair use.").
[75]A case with a similar fact pattern may soon go to trial in the Southern District of New York. See Lance Rose, NETLAW: YOUR RIGHTS IN THE ONLINE WORLD, 105 (1995).
[76]17 U.S.C. § 115.
[77] See id.
[78]In that two clearing-houses (ASCAP and BMI) have taken over the business of collecting and distributing royalties, which might, on the surface, be seen as a return to the monopoly Congress was trying to avoid.
[79]See Heather J. Meeker, Multimedia and Copyright, 20 RUTGERS COMPUTER & TECH. L.J. 375, 410 (1994).
[80]See id. at 409.
[81]See generally, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS (Bruce A. Lehman, Commissioner of Patents and Trademarks, Chair, Sep. 1995).
[82]See Paulina Borsook, The Infamous White Paper, UPSIDE, Mar. 1996, at 87.
[83]See Jason S. Rooks, Note, Constitutionality of Judicially-Imposed Compulsory Licenses in Copyright Infringement Cases, 3 J. INTELL. PROP. L. 255 (1995).
[84]Meeker, supra note 79, at 410-11.
[85]Dvorak, supra note 1, at 104.

© 1998 Pamela R. O'Brien. Published with permission of the copyright holder.