February 22: Personal use

Most of the litigation over the lawfulness of personal uses of copyrighted works follows the model we saw in Sony v. Universal Studios.  Copyright owners file contributory copyright infringement lawsuits against commercial businesses that facilitate consumers' personal uses.  Because there can be no contributory infringement unless there is direct infringement, defendants in those suits have argued that their customers are making fair use of plaintiffs' copyrighted works.  Most courts deciding whether consumers' personal uses come within the shelter of § 107 have been making fair use determinations without hearing from the consumers themselves.

• Read an excerpt Download excerpt from Jessica Litman, Lawful Personal Use, 85 U.Tex. L. Rev. 1871 (2007)
• Read the following edited cases:
  • A&M Records v. Napster Download A&M Records v. Napster (9th Cir. 2001)
  • Disney Enterprises v. VidAngel Download Disney Enterprises v. VidAngel (9th Cir. 2017)
  • Capitol Records v. ReDigi Download Capitol Records v. ReDigi (2d Cir. 2018)

Bain v. Film Independent  is one of a small number of cases brought against individuals  who make unlicensed uses of  copyrighted works for personal purposes. The judge suggests that litigating this dispute was a waste of time and resources.  

• • Bain v. Film Independent Download Bain v. Film Independent (C.D. Cal. 2020)

Should Congress amend the copyright statute to delineate which personal uses of copyrighted works are not infringement?  Should such an amendment treat personal uses as a subset of fair use or as a freestanding exemption or limitation? If Congress were to enact such an amendment, where should it draw the line between permitted and infringing personal uses?