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Confused Copyright

The Personal Use Debate and the Need for Library Involvement

Rose Epp

Emporia State University

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Abstract

Many of those who use copyrighted works for personal things, such as for school assignments or

for making a movie of their summer vacation or for backing up copies of music on their

computers assume that copyright law permits all noncommercial copying. Contrariwise, many

industries that produce copyrighted works, such as movie studios or publishers, assume that all

copying is illegal whether it is commercial or not. Libraries try to take a middle road but often

are unsure as to what the law really says or what the real controversies are concerning the

personal use of copyrighted works. The definition, the history, the controversies, the current

practices, and the imagined future of personal use all involve libraries, if not just because

libraries are full of copyrighted works that the public makes personal use of. Libraries are

relevant and needed parties in the personal use debate, and especially need to be the

spokespeople of a public who might not even be aware that they have as big a stake in copyright

as creators.

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Confused Copyright: The Personal Use Debate and the Need for Library Involvement

Introduction

Some have said that the world, or at least the United States, is beginning its decline into a

failed utopia not unlike George Orwell’s 1984 or Aldous Huxley’s Brave New World. They fear

a decline of society due to restrictions on what one can and cannot watch, read, and listen to

resulting from the conspiring of governments to censor ideas. They believe that if this continues

people will be forbidden from sharing new ideas and we will lose our First Amendment rights.

However likely or unlikely the reality of this is, this is truly how strongly some people feel about

copyright law, specifically, on how it deals with personal use. What is personal use? Someone,

anyone, listening to the radio, singing that song on the radio, printing off a copy of the lyrics of

that song to memorize, reading a book about the artist of that song, or copying a page of that

book to stick up on the wall for motivation. Basically, “personal” means any individual and

“use” means using a copyrighted work for that individual’s own enjoyment. So? People who

sing songs, make music, and write books about those artists want you to enjoy (and buy) their

creative works. What is the big deal? The big deal comes when that individual copies or shares

something of theirs. Then they protest, “You can’t do that! You need to buy another copy

because I own the right to copy and share my work!” And, maybe the original artist does not

particularly care about one’s personal use but the producer or publisher does and that one

individual could end up in a heap of trouble. The lines of personal use seem upfront when one is

using something for its intended purpose but become increasingly fuzzy as one attempts to truly

enjoy a work by sharing it with others. Enter the library! Libraries are full of copyrighted

material that one uses personally. Additionally, they represent the rights of their patrons in a

world of fee-fi-foeing corporate giants. After all, copyright was originally conceptualized as a

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balancer between the rights of the general public to know and an incentive for creators to create.

Libraries are a relevant and a needed party in the personal use debate and this can be

demonstrated through discussing the definition, the history, the controversies, the current

practices, and the imagined future of personal use.

Definition of Personal Use

Now, despite the fact that a very simple and literal definition of “personal use” has been

provided in the opening paragraph, there is actually a small amount of controversy as to what the

proper definition should entail. First, what does copyright law itself have to say? In Section 101

(17 U.S.C.), the beginning of the lengthy document of United States copyright law, there is

provided a list of definitions. Unfortunately, “personal use,” or any related term, is not defined.

There is also no mention in the law itself of what the user of a copyrighted work is permitted to

do with said work, besides what is granted in Section 107 (17 U.S.C.) via fair use and various

recently added bits mostly pertaining to specific uses of digital content. As such, Jessica Litman

(2007), in her article, “Lawful Personal Use,” points out that personal use is not defined by

statute in the United States, as it is in other countries. For instance, although this legislation is

highly controversial, Canadians are permitted to make copies of music for personal use by way

of a levy placed on recording media (Geist, 2005). For the purposes of this paper, the focus will

be on the United States, which has established accepted personal uses based on custom, court

cases, and personal opinion. Patterson and Lindberg (1991) state that “a personal use can be

defined as the private use of a work for one's own learning, enjoyment, or sharing with a

colleague or friend – without any motive for profit” (p. 193) and then later propose the following

“rule of personal use” based on what copyright law suggests:

An individual’s use of a copyrighted work for his or her own private use is a personal

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use, not subject to fair-use restraints. Such use includes use by copying, provided that

the copy is neither for public distribution or sale to others nor a functional substitute

for a copyrighted work currently available on the market at a reasonable price. (p. 194)

Litman (2007) defines personal use as “a use that an individual makes for herself, her family,

or her close friends” (p. 1894) while also assuming that some personal uses will be unlawful

and some will be controversial. The owner of a website containing music states, “Personal

private use is that which occurs within you [sic] immediate biological family” (Jordan, 2000).

Deborah Tussey (2001) gives her definition as: “‘Personal use,’ in the broad sense, means

consumption or adaptation of intellectual properties by individual users for their own

purposes, including uncompensated sharing of those works with others.” Since the law has

not defined “personal use,” it is important for a library to know all sides of this issue so that

they will either be ready to suggest reliable sources to any patrons who have questions about

copyright or to engage in a copyright education campaign, something that is sorely needed

with the many conflicting views of copyright at large in the world.

Early Views of Personal Use

As asserted by Litman (2007), there have always been conflicts between authors,

publishers, and libraries due to their fundamentally different goals. Early views of personal

use, copying, and libraries reach back to before there was the thought of copyright law.

Gasaway (2010) tells of the copying of works by the Great Library of Alexandra. Ptolemy I

asked for documents from other rulers and even searched for and confiscated documents from

incoming ships so that the library could copy them and add to its collection, sometimes only

returning the copy of the original to its owner. It was common for early users of libraries,

such as monks in the Middle Ages, to copy materials by hand. Even the Library of Congress

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encouraged photocopying at the turn of the twentieth century (Gasaway, 2010). Just half a

century ago, it was widely believed that the use of copyrighted works was permitted if that use

was noncommercial, and, generally, the law did not care to address such uses by the general

public (Litman, 1994, 2007). This seemingly indifferent attitude may be, in part, because of a

distinct difference in the way copyright was viewed when it first became law. At the time of

the Copyright Act of 1790, copyright was “reserved for mechanically reproduced, useful, and

important works of enduring value” (Anderson, 2007, p. 13). In other words, a copyrighted

work was something special. It is also interesting to note that before the Copyright Act of

1870, authors had no control over their work after they published it, save for publication

rights. People could make derivative works as they pleased (Anderson, 2007). So, what

changed? Julie Cohen (2005), Deborah Tussey (2001), Jessica Litman (1994, 2007), Michael

Grynberg (2010), and the Committee on Intellectual Property Rights in the Emerging

Information Infrastructure (2000) all agree that it was rapid growth of technology and, with it,

the ability to easily, and without loss of quality, digitize information.

Present Views of Personal Use

Currently, because of this massive influx of information, views on personal use from the

interested parties of the public, publishers, and libraries, are varied and hotly debated. Copyright

law is even more confusing than it was a century ago but it now “touches everyone and

everything” (Litman, 1994, I section, para. 2). The public’s view of what constitutes lawful

personal use still seems to be the same as it was before. They generally believe that copyright

law pertains to creators who want to profit commercially from their work but does not

particularly pertain to them because their uses of copyrighted works are private and

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noncommercial (Litman, 1994). Just a little over 25 years ago, the court, in the landmark case of

Sony Corp. of America v. Universal City Studios, Inc. ([Sony v. Universal], 1984), asserted

that noncommercial home use recording of material broadcast over the public airwaves

was a fair use of copyrighted works and did not constitute copyright infringement. It

emphasized the fact that the material was broadcast free to the public at large, the

noncommercial character of the use, and the private character of the activity conducted

entirely within the home.” (para. 12).

This could be seen as something of an acknowledgement of what the public already thought.

Although, some contend that this view of the courts has largely changed to instead favor

copyright holders, particularly since most copies now being made are digital, instead of analog as

they were when the case was decided (Litman, 2007). Although the views differ on the extent of

allowable personal copying, it is largely agreed upon by everyone, save a conflicting district

court opinion (UMG Recordings v. MP3, 2000), that personal uses that involve “time shifting”

(Sony v. Universal, 1984) and “space shifting” (Recording Industry Association of America v.

Diamond Multimedia Systems, Inc. [RIAA v. Diamond Multimedia], 1999) are permissible,

albeit grudgingly on the part of affected industries, as they appear to desire control over all

copies of their works. Concerning the copying of materials for personal use in libraries, some

libraries and library patrons continue to copy print materials without abandon, as they have done

for centuries. Fortunately, with The Copyright Act of 1976 and the addition of Section 108

(Limitations on Exclusive Rights: Reproductions by Libraries and Archives) to copyright law,

this practice has been addressed. Section 108 gives permission to libraries to make copies of

writings (such as journal articles and books) for users and for other libraries through inter-library

loan, as long as the library meets certain criteria. However, rights-holders are now expressing a

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fear that, in the future, Section 108 will broaden to include digital files or licensed databases and

libraries will become competition (Saylor, 2010). The polar views expressed here stem from a

view of copyright itself that Cory Doctorow (2010) points out is an all or nothing approach. He

asserts that “…we treat copyright as absolute. And when we do, we turn a system with a real

purpose (providing a framework for participants in creative businesses) into a caricature of itself,

one that no one can respect” (last para.).

Controversies

Although libraries have not been ones to take absolute views, since they wish to be

intermediaries of sorts between the public and industry, they have a conundrum to overcome.

They have the noble call of providing free information to everyone, and as a part of this, want to

demonstrate a good example of citizenship. This includes adherence to copyright law in spite of

bias that views their patrons more favorably than big business. So, it is sometimes difficult to

navigate their patron’s requests and right holders’ claims and with this uncertainty comes an

inability to stand up for patron’s rights. These next few paragraphs will unpack some of the

underlying intricacies of the personal use controversy in order to give libraries a “head’s up” on

various controversies. Personal use with no copying involved, but rather involving one using the

copyrighted piece as intended, is rarely controversial. Therefore, this section will mainly

concern itself with issues involving the copying of copyrighted works.

Personal Use Copies

Copyright law defines “copies” as:

material objects, other than phonorecords, in which a work is fixed by any method now

known or later developed, and from which the work can be perceived, reproduced, or

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otherwise communicated, either directly or with the aid of a machine or device (17

U.S.C. § 101, 2009)

The Committee on Intellectual Property Rights in the Emerging Information Infrastructure ([The

Committee], 2000) has brought up a question of whether the term “copy” is still a good concept

in light of recent technological advances. Unlike copies of print materials, digital copies are

indistinguishable from the original. Hence, there is no natural end to redistribution and the

information contained within is more susceptible to unwanted change. This is a major concern

of rights holders and a reason for them to claim that all copying is unlawful. The Committee

does not attempt to resolve the personal use issue but does take the same stance as Doctorow

(2010) in stating that not all personal uses are fair use and not all copying is unlawful, while also

further maintaining that the notion that all noncommercial copying is fair use is far too

widespread.

Licenses

Copyright owners have sought to combat unfettered personal copying by supplying

licenses for those uses. Litman (2007) makes a note that companies have essentially redefined a

“commercial” use to mean an “unlicensed” use. The Committee (2000) tells how licensing

“constitutes a limited transfer of rights to use an item on stated terms and conditions” (p. 35).

Contract law, not copyright law, governs licenses and the problem comes when the terms of the

license end up being more restrictive than what is granted under the first-sale doctrine. This

leaves the public, and potentially libraries, without the provisions that copyright law provides to

remove undue burden on the user of copyrighted works (The Committee, 2000). This issue

almost literally bombed the library community only two months ago. The publisher

HarperCollins announced that the license on their eBooks sold to libraries would expire after

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twenty-six checkouts. In other words, libraries will need to repurchase an eBook every time the

limit is reached on that book. Two other publishers, Macmillan and Simon & Schuster, do not

even permit their Ebooks to be circulated in libraries (Hadro, 2011). Libraries have already

reluctantly agreed to check out Ebooks to one patron at a time. This is consistent with how

books are traditionally checked out and mirrors normal personal use. When one purchases

something, one does not expect it to have the equivalent of a time bomb inside that will render it

useless. To be fair, the publisher’s concerns do have a ring of legitimacy and will likely be

resolved in a way that resembles what database publishers already do (Hadro, 2011) but the

rights of the reader must also be considered. It is not so much a matter of money as it is a matter

of “the exclusive right to read” (Litman, 1994) and a matter of what constitutes property.

Fair Use

Michael Grynberg (2010) suggests that common law property rights could serve as a

baseline for interpreting the legality of personal use of copyrighted works. He points out that the

property of two parties interferes with one another via copyright. There is the intellectual

property of the copyright holder and the physical (or digital) property of the one who purchased

the work. He also explains that fair use does not adequately cover uses resulting from the need

for autonomy or self-expression and proclaims that “if the Copyright Act neglects to give

copyright owners the power to forbid a particular copyright use, users have that right as part of

their basic common law rights, not as a matter of federal neglect or statutory vacuum”

(Grynberg, 2010, p. 467). Dennis Kennedy (2005) also demonstrates, by way of logical

reasoning, how fair use is too shaky a platform to set personal use on. He articulates that the

common sense ways in which one interacts with copyrighted works for private use should not be

confounded by their digital medium, even though, technically, automatic “copying” occurs as a

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part of the normal computer process. It could even be asserted that fair use was not intended to

be applied to the ordinary individual using a work for ordinary personal uses. To add to this

spaghetti bowl, some believe that a person’s basic motivations and purposes for copying can

affect whether a use is permissible. Patterson and Lindberg (1991) make the claim that copying

is only acceptable when the objective is for personal growth or learning. The obvious response

on the part of the individual is, of course, “No one can tell me what my needs are! Only I can

make that decision!” One can acknowledge that the implied suggestion to limit personal use

based on intent does begin to rumble deeply of a future dystopia.

Accepted and Legal Personal Uses

There are many more controversial issues that could be touched on, however, it would

not be wise to ignore the practical aspect of personal use. What exactly is permissible? As

demonstrated, the lines are not cut clearly but libraries can make logical decisions, moving from

sure-fire uses into unsure ones. To begin with, one can be very certain that sitting down to read a

print copy of a legally acquired book will not be contested. Nor will listening to a legally bought

CD on a CD player. These are both uses of works being used as they were intended to be used.

If someone happened to find a cartoon of Unshelved in a newspaper that he liked, cut it out, and

taped it on his wall, that would also be permitted. But what if that someone with the cartoon

worked at a library and happened to tape it to the front desk for patrons to see? It would be a

public display, an exclusive right of the author, as stated in the law (17 U.S.C. § 106). Well, for

one, it is next to impossible that Gene Ambaum, Bill Barnes, or any of their associates will send

a cease-and-desist letter. Secondly, presuming that someone owned the newspaper the cartoon

was clipped from, there is an exemption that allows for the owner of a copy of a work to display

it publicly (17 U.S.C. § 109c). Like this example, there are a few statutory exemptions for

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personal use. Generally speaking, Litman (2007) states that all private performances, displays,

and distributions are definitely permitted since the rights holder is limited to “public”

distributions (17 U.S.C. § 106). People are also allowed to make back-up copies of computer

programs (17 U.S.C. § 117), and make noncommercial copies of recorded music (17 U.S.C. §

1008), among other things. However, the law does not address many other personal issues, such

as music played loud enough for the neighborhood to hear, back-up copies of files that are not

computer programs, or a child who practices drawing by copying cartoon characters (Litman,

2007). Now, not many of these have anything to do with the library. However, in the bizarre

event that a patron would ask for permission to check out and copy a library CD, or something of

a similar nature, one should be prepared with the correct answer. The answer, of course, is “no”

since the patron does not personally own the CD. If the patron was inclined to be difficult they

may claim that they do, in fact, “own” the CD since it was their tax dollars that bought it. This is

a thoughtful argument but of a dubious nature. One could venture to explain that the library can

only assist in copying when the object in question is part of a journal or a book.

Personal Use in the Library

As stated before, the copying of print materials for personal use within a library is a very

old practice. And, as referred to before, Section 108 (Copyright Act of 1976) gives libraries and

archives permission to copy works for their patrons or other libraries. Certain conditions must be

met for this to be permitted. The collections of the library must be open to the public or to all

“persons doing research in a specialized field” (p. 19), the copy must be made without any

purpose of commercial advantage, and the copy must include a notice of copyright.

Additionally, the exemptions do not apply “to a musical work, a pictorial, graphic or sculptural

work, or a motion picture or other audiovisual work other than an audiovisual work dealing with

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news” (Copyright Act of 1976, p. 22). Libraries must include a warning notice that states that

the work may be under copyright on order forms and where people come to request copies. The

request must be for only a portion of a work, for only one article out of a magazine issue, must

be used for private study or research, and the copy must become the property of the owner. If the

requested portion is for all or for a significant part of a work, then a copy of the work must not be

available for a reasonable price. Hirtle, Hudson, and Kenyon (2009) point out that just because

something is restricted under Section 108, does not mean that it is not permitted under a different

statute, such as the one for fair use. Interlibrary loan activities, providing copies for patrons of

other libraries, is specifically permitted in Section 108(g). What if the CD-wielding patron

decides to use one of the library’s own computers to make a copy? Is the library liable? Not

under Section 108(f). As long as the library equipment, such as its computers and photocopiers,

displays a warning of copyright, the library takes no responsibility for the use of unsupervised

equipment by unscrupulous individuals.

Conclusion

Now, having settled the issue of copying in libraries, all that is left is to contemplate the

future. The future of personal use is, of course, as uncertain as all futures but one can speculate a

little. William Patry (2006) makes note that other countries, such as the UK and Australia, have

moved toward specific provisions for personal use, in lieu of fair use. While some think it too

narrow, he makes the claim that “civil law countries tend to have more generous personal use

exemptions, and a more consumer-oriented attitude” (para. 2), giving the impression that it might

give us a better deal, where “fair use” hasn’t seemed to work on the user’s behalf as it was

supposed to do. Dame Brindley (2009) presented a paper and the 2009 ALAI Congress

concerning the changing role of libraries. He makes a point the one aspect that will need to be

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addressed in the future, as more and more content becomes digital, it the relationship between

contracts (licenses) and copyright. The British Library did a study on one hundred contracts

offered to them for electronic databases and journals and found that over ninety percent of them

“undermined the exemptions in the law that relate to core library activities” (Brindley, 2009, p.

6). He proposes that the relatively simple permissions given in copyright law have the ability to

“trump” such contracts since they interfere with libraries being able to copy items for patrons,

among other things. Litman (1994) makes a proclamation that the U.S. Copyright Office needs

to become the general public's copyright lawyer “…to persuade all of us…that the public's

interests are compatible rather than adverse to the interests of copyright owners, but also to make

it so…The Copyright Office…has failed to attend to the danger that the bargain [of copyright

law] might unbalance to the detriment of the public. All it would take would be for the Office to

view the public as its copyright client.” (section VI, last para.). It may well be up to libraries to

be the ones to encourage this and to fight for the rights of public, certainly no one else

understands the need for accessible information as well as them. The personal use debate needs

the opinions of librarians, the ones who interact practically with copyright every day, concerning

the definition, the interpretations of history, the controversies, the current practices, and the

future of personal use. Then, the world may forestall the doom of a utopia without creativity,

however over-dramatized.

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References

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1831-1891 (Doctoral dissertation, Bowling Green State University). Retrieved from

http://etd.ohiolink.edu/send-pdf.cgi/Anderson%20Eric.pdf?acc_num=bgsu1193529137

Brindley, D. (2009). Phoenixes in the internet era: the changing role of libraries. Paper

presented at the 2009 Association Littéraire et Artistique Internationale (ALAI) Congress

in London, England. Retrieved from http://www.alai2009.org/programme.aspx

Cohen, J. E. (2005). The place of the user in copyright law. Fordham Law Review, 74, pp. 347-

374. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=814664

Committee on Intellectual Property Rights in the Emerging Information Infrastructure (2000).

The digital dilemma: Intellectual property in the information age. Retrieved from The

National Academies Press website: http://www.nap.edu/ openbook.php?

record_id=9601&page=R1

Copyright Act of 1976, 17 U.S.C. § 108 (2009). Retrieved from http://www.copyright.gov/

title17/92chap1.pdf

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road. The Guardian. Retrieved from http://www.guardian.co.uk/technology/2010/jan/26/

copyright-cory-doctorow

Gasaway, L. N. (2010). Libraries and copyright at the dawn of the twentieth century: The 1909

Copyright Act. North Carolina Journal of Law & Technology, 11(3). Retrieved from

http://www.ncjolt.org/sites/default/files/Gasaway_Laura_v11i3_419_460.pdf

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Geist, M. (2005, August 8). The failure of Canada’s private copying system [blog post]. Michael

Geist. Retrieved from http://www.michaelgeist.ca/index.php?option=content&task=

view&id=924

Grynberg, M. (2010). Property is a two-way street: Personal copyright use and implied

authorization. Fordham Law Review, 79(2). Retrieved from http://papers.ssrn.com/sol3/

papers.cfm?abstract_id=1729411

Hadro, J. (2011, February 25). HarperCollins puts 26 loan cap on Ebook circulations.

LibraryJournal.com. Retrieved from http://www.libraryjournal.com/lj/home/889452-

264/harpercollins_puts_26_loan_cap.html.csp

Hirtle, P. B., Hudson, E. & Kenyon, A. T. (2009). Copyright & cultural institutions: Guidelines

for digitization for U.S. libraries, archives, & museums. Ithaca, NY: Cornell University

Library. Electronic copy available at: http://ssrn.com/abstract=1495365

Jordan, R. (2000). Permissions and copyright. Lutheran-Hymnal.com. Retrieved from

http://www.lutheran-hymnal.com/index.html

Kennedy, D. M. (2005, June 6). iPods and time-shifting: Fair use, personal use and the digital

copyright morass. Between Lawyers. Retrieved from http://betweenlawyers.corante.com/

archives/2005/06/06/ipods_and_timeshifting_fair_use_personal_use_and_the_digital_cop

yright_morass.php

Litman, J. (1994). The exclusive right to read. Cardozo Arts & Entertainment Law Journal,

13(29). Retrieved from http://www-personal.umich.edu/~jdlitman/papers/read.htm

Litman, J. (2007, June). Lawful personal use. Texas Kaw Review, 85. Retrieved from

http://www-personal.umich.edu/~jdlitman/papers/LawfulPersonalUse.pdf

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Patry, W. (2006, November 30). Fair use and personal copying exemptions [Blog post]. The

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Patterson, L. R. & Lindberg, S. W. (1991). The nature of copyright: A law of users’ rights.

Athens, GA: University of Georgia Press.

Recording Industry Association of America v. Diamond Multimedia Systems, Inc., F.3d (9th Cir.

1999). Retrieved from http://caselaw.findlaw.com/us-9th-circuit/1054784.html

Saylor, K. B. (2010, May 20). Limitations on copyright owners for libraries and archives: Points

of contention and agreement in an examination of Section 108. Copyright Alliance.

Retrieved from http://www.copyrightalliance.org/files/examination_of_section_108_--

_saylor.pdf

Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). Retrieved from

http://www.law.cornell.edu/copyright/cases/464_US_417.htm

Tussey, D. S. (2001, January). From fan sites to filesharing: Personal use in cyberspace. Georgia

Law Review 35, pp. 1129-1193. Retrieved from http://works.bepress.com/

deborah_tussey/7/

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Confused Copyright

The Personal Use Debate and the Need for Library Involvement

An Annotated Bibliography

Rose Epp

Emporia State University

Anderson, E. (2007, December). Pimps and ferrets: Copyright and culture in the United States,

1831-1891 (Doctoral dissertation, Bowling Green State University). Retrieved from

http://etd.ohiolink.edu/send-pdf.cgi/Anderson%20Eric.pdf?acc_num=bgsu1193529137

This is a doctoral dissertation written by Eric Anderson and submitted to the

Graduate College of Bowling Green University in partial fulfillment for the degree of

Doctor of Philosophy. It concerns the culture of copyright in the United States from

1831-1891. He mostly discusses what people thought about copyright during that time

period and what it meant to them. He uses magazine and newspaper articles, letters, and

editorials as his sources to demonstrate that the general public often thought about

copyright in ways contrary to lawmakers. This paper mostly pertains to the area of

personal use in that it can shed light on how copyright might have been initially

constructed and what purpose it might have been meant to have. It is a very good

overview of this.

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Brindley, D. (2009). Phoenixes in the internet era: the changing role of libraries. Paper

presented at the 2009 Association Littéraire et Artistique Internationale (ALAI) Congress

in London, England. Retrieved from http://www.alai2009.org/programme.aspx

Dame Brindley is the Chief Executive at the British Library and this paper was

one of the keynote speeches at the 2009 ALAI Congress. He addresses key issues for

libraries in the Internet Age and how their basic functions are changing as a result of the

digitization of information. Of importance to the personal use and libraries subject, is the

section entitled “Access to digital content.” He discusses the relationship between

contract and copyright law and proposes that copyright law be allowed to override

individual contracts. This is not a very in-depth look but it is valuable for the statistics

provided concerning a study of the British Library on its electronic media contracts.

Cohen, J. E. (2005). The place of the user in copyright law. Fordham Law Review, 74, pp. 347-

374. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=814664

Julie Cohen is a Professor of Law at Georgetown University Law Center. She

asserts that the place of the user in copyright law is nonexistent. She demonstrates the

effects of this absence and proposes that a picture of the user be made, how he uses a

work and what his purposes are, in order to restore balance. She gives the three main

“theories of the user” and proposes a new one through which the purpose of copyright is

advanced. Section II of the paper is devoted to private copying and other sections

address other personal uses. It is an interesting read and a refreshingly different take on

copyright reform.

Committee on Intellectual Property Rights in the Emerging Information Infrastructure (2000).

The digital dilemma: Intellectual property in the information age. Retrieved from The

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National Academies Press website: http://www.nap.edu/openbook.php?

record_id=9601&page=R1

This is a government publication from the National Research Council by the

Committee on Intellectual Property Rights in the Emerging Information Infrastructure. It

covers a variety of topics, including music, public access, private use, and protecting

digital intellectual property. Of particular interest to those interested in personal use is

chapter four, “Individual Behavior, Private Use and Fair Use, and the System for

Copyright” (pp. 123-151). It gives equal credence to both the public and rights holders

and puts many things into perspective, especially concerning the advantages and

disadvantages of digital media. One big advantage of the book is that it can be read for

free online and can be searched with results displayed by chapter and then by occurrence.

Copyright Act of 1976, 17 U.S.C. § 108 (2009). Retrieved from http://www.copyright.gov/

title17/92chap1.pdf

This is specifically referencing Section 108 of U.S. copyright law. This section

deals explicitly with the exemptions for libraries and archives. It contains within it

exemptions for personal use copying of library materials. These documents direct from

the Copyright Office were easy to read and surprisingly easy to understand.

Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2887 (title IV amending

§108, §112, §114, chapter 7 and chapter 8, title 17, U.S.C.), enacted October 28, 1998.

This copyright act does concern personal use in a very large way, most notably

because it prohibits the sale of device meant to circumvent copying restrictions placed on

digital media. However, it does not closely concern personal use and libraries, so I

choose not to include it in my paper.

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Doctorow, C. (2010, January 26). Copyright, companies, individuals and news: the rules of the

road. The Guardian. Retrieved from http://www.guardian.co.uk/technology/2010/jan/26/

copyright-cory-doctorow

According to his profile on The Guardian’s website, “Cory Doctorow is an

activist, science fiction author and co-editor of the blog Boing Boing.” His profile also

lists several articles that he has written that concern copyright. This short article

discusses how people do and should view copyright. He claims that most view it as a law

of absolutes when nothing could be farther from the truth. This is a good thought-

provoking article on what should be considered a personal use and what should not be.

Gasaway, L. N. (2010). Libraries and copyright at the dawn of the twentieth century: The 1909

Copyright Act. North Carolina Journal of Law & Technology, 11(3). Retrieved from

http://www.ncjolt.org/sites/default/files/Gasaway_Laura_v11i3_419_460.pdf

Laura Gasaway is the Associate Dean for Academic Affairs & Professor of Law

at the School of Law, University of North Carolina-Chapel Hill. Obviously, her paper

mainly concerns the 1909 Copyright Act. It is very thorough in its discussion of this.

This source was important for this paper because it reported on the copying activities of

libraries and their users in times past (pp. 425-427 and section IV).

Geist, M. (2005, August 8). The failure of Canada’s private copying system [blog post]. Michael

Geist. Retrieved from http://www.michaelgeist.ca/index.php?option=content&task=

view&id=924

According to his website, “Dr. Michael Geist is a law professor at the University

of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law.”

This short article discusses the effect of the levy placed on recording media in Canada in

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order to allow for personal copying of music. Since it concerns Canada, not the United

States, it only afforded a brief mention in my paper. It is valuable in that it effectively

demonstrates that the grass is not greener where there is civil law for personal use, as

some in this country are inclined to believe.

Grynberg, M. (2010). Property is a two-way street: Personal copyright use and implied

authorization. Fordham Law Review, 79(2). Retrieved from http://papers.ssrn.com/sol3/

papers.cfm?abstract_id=1729411

Michael Grynberg is an Associate Professor of Law at the Oklahoma City

University School of Law. He takes the stance that copyright is the intrusion of one

person’s intellectual property into the other’s physical property. He states that common

law property rights should be a baseline for copyright and that this can help the implied

license doctrine. He has a particular section on “the problem of personal use” and also

discusses user property rights and suggests implied authorization as a solution. This is a

very thorough article.

Hadro, J. (2011, February 25). HarperCollins puts 26 loan cap on Ebook circulations.

LibraryJournal.com. Retrieved from http://www.libraryjournal.com/lj/home/889452-

264/harpercollins_puts_26_loan_cap.html.csp

There is no mention as to who Josh Hadro is but, since this is primarily a news

article, that fact is not terribly important, especially since Library Journal is well-known

and quite reputable. This is an article written just after HaperCollins did the unthinkable

and put a check-out limit on its Ebooks. It is not much more than a news article but it

does provide a link to a follow-up article.

Hirtle, P. B., Hudson, E. & Kenyon, A. T. (2009). Copyright & cultural institutions: Guidelines

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for digitization for U.S. libraries, archives, & museums. Ithaca, NY: Cornell University

Library. Electronic copy available at: http://ssrn.com/abstract=1495365

This is a book primarily aimed at institutions that wish to digitize their collections. It

is a derivative work of a similar book written for institutions in Australia changed to reflect

U.S. law. This is a very good resource that explains copyright in easy to understand

language and flowcharts and heavily discusses the role of libraries and archives in

Copyright Law, along with best practices for those institutions. It does not discuss

personal use as it pertains to the individual but Section 108 (17 U.S.C.) is discussed in

great detail in Chapter 6.

Jordan, R. (2000). Permissions and copyright. Lutheran-Hymnal.com. Retrieved from

http://www.lutheran-hymnal.com/index.html

The Richard Jordan is a Reverend who posts midi files and other religious

musical paraphernalia on his website. He has no connection to the personal use debate.

His personal and rather strict views on copyright were just particularly interesting.

Kennedy, D. M. (2005, June 6). iPods and time-shifting: Fair use, personal use and the digital

copyright morass. Between Lawyers. Retrieved from http://betweenlawyers.corante.com/

archives/2005/06/06/ipods_and_timeshifting_fair_use_personal_use_and_the_digital_cop

yright_morass.php

According to his profile on Between Lawyers, Dennis Kennedy “is a computer

lawyer and legal technology expert based in St. Louis, Missouri.” His article takes a

logical and progressive approach on deciding which personal uses are permissible. It is

relatively short, but enlightening, and he raises some good questions, primarily

concerning music and converting from analog to digital.

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Litman, J. (1994). The exclusive right to read. Cardozo Arts & Entertainment Law Journal,

13(29). Retrieved from http://www-personal.umich.edu/~jdlitman/papers/read.htm

Jessica Litman is a Professor of Law at the University of Michigan. This article

takes the position that the rights of the user have been neglected when preparing the

“bargain” of copyright law between the user and industry. She advocates for the

Copyright Office to be the public’s copyright lawyer and for a copyright law to be drafted

that even school children can understand. She uses many, many sources and it is an

enjoyable read since it is written in a largely casual style.

Litman, J. (2007, June). Lawful personal use. Texas Kaw Review, 85. Retrieved from

http://www-personal.umich.edu/~jdlitman/papers/LawfulPersonalUse.pdf

Also by Jessica Litman, this article uses so many sources and footnotes that they

probably take up more space than the article itself. In it, Litman discusses just what the

title says, “lawful personal use.” Her topics are: copyright as it relates to the enjoyment

of copyrighted works, court cases that are “stingy” with copyright holders’ rights, a

definition of personal use, personal uses that are noncontroversial, an analysis of

copyright owners’ rights, and a look at the idea that all nonlicensed uses are infringing

unless excused in the law. This article is a real wealth of information and one that I

referred to often.

Patry, W. (2006, November 30). Fair use and personal copying exemptions [Blog post]. The

Patry Copyright Blog. Retrieved from http://williampatry.blogspot.com/2006/11/fair-use-

and-personal-copying.html

William Patry is a copyright lawyer and this article is from his personal blog. It is

mainly a something of a rant about the Wal-Mart and Warner Brothers deal that requires

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one to purchase separate copies of a movie for one’s computer and iPod but there are

some good thoughts contained within concerning personal use and civil law.

Patterson, L. R. & Lindberg, S. W. (1991). The nature of copyright: A law of users’ rights.

Athens, GA: University of Georgia Press.

Patterson and Lindberg, according to a review from Library Journal, are

professors at the University of Georgia. I did not look at the book in its entirety but only

at pages 193 to 196, in which they provide a good definition of “personal use.”

Recording Industry Association of America v. Diamond Multimedia Systems, Inc., F.3d (9th Cir.

1999). Retrieved from http://caselaw.findlaw.com/us-9th-circuit/1054784.html

This case concerned whether an MP3 device was permissible under copyright

law. The court found that “space shifting,” like “time shifting” was legal.

Saylor, K. B. (2010, May 20). Limitations on copyright owners for libraries and archives: Points

of contention and agreement in an examination of Section 108. Copyright Alliance.

Retrieved from http://www.copyrightalliance.org/files/examination_of_section_108_--

_saylor.pdf

Kathleen Saylor served as an intern at the Copyright Alliance during the spring of

2010. She takes a different view than others who discuss the exemptions to libraries in

Section 108 and looks at the effects that the exemptions might cause on rights holders. It

is demonstrated that the main problem that rights holders have is the copying of digital

materials by libraries. This article is a good look at the other side of the issue.

Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). Retrieved from

http://www.law.cornell.edu/copyright/cases/464_US_417.htm

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This case concerned a device marketed by Sony that would enable individuals to

tape TV programs and watch them later. It is important to personal use since it was

directly stated that “time shifting” was permissible under copyright law.

Tussey, D. S. (2001, January). From fan sites to filesharing: Personal use in cyberspace. Georgia

Law Review 35, pp. 1129-1193. Retrieved from http://works.bepress.com/

deborah_tussey/7/

Deborah Tussey is a Professor of Law at Oklahoma City University School of

Law. Her topics are: “personal use under traditional regimes,” “the shortcomings of

traditional regimes in cyberspace,” “the rightholders’ solution: converging protections,”

“why personal use should be preserved,” and “defining a personal use privilege.” It does

not discuss libraries, but this is a good overall resource for individual personal use.

UMG Recordings v. MP3, 92 F. Supp. 2d 349 (S.D.N.Y. 2000). Retrieved from

http://euro.ecom.cmu.edu/program/law/08-732/Copyright/UMGvMP3.pdf

In this case, UMG Recordings brought suit against MP3.com for copying music

CDs onto its servers so that its users could listen to CDs they owned from any computer

in the world via the internet. The case itself does not particularly touch on personal use.

However, a statement in the court’s opinion does: “Copyright…is not designed to afford

consumer protection or convenience but, rather, to protect the copyrightholders’ property

interests” (p. 8).

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