Non-Fair use Situated Use

I read with great interest Professor Solum's queries about the term "situated use." I wish I could be a student of his because I have learned a tremendous amount from his careful attention to language and methods of textual analysis. His interpretation of the meanings of the Constitutional Clause is, to me, the best out there. I too share doubt about the construct of a situated user. I don't see that it is a useful analytical tool, and the idea of a user being situated seems slightly creepy: I envisage a reified being floating around doing all sorts of things. I also wonder, in a dichotomous way, whether the situated user is situated against someone else, like a situated copyright owner. But perhaps all of this stems from a bad experience taking an undergraduate class on Kierkegard.

My biggest problem, though, is my own present obsession with trying to break down constructs that have, in my opinion, impeded the ability to analyze issues systemically. Analyzing things systemically may avoid dividing things into situated beings or camps. By the numbers fair use is one example, and I understand Julie does not to want to focus on fair use, so another construct is that of "copy." I think the statutory definition of "copy" and its adjunct "fixed" were intended to deal with problems of subject matter protection, and not infringement as in MAI v. Peak. To me, there is no reason despite those definitions, that a court could not say that ephemeral storing of works, as in buffering or caching is not the making of a "copy" for infringement purposes, consistent with centuries old infringement analysis.

Comments

[Julie Cohen]

Ah, but users are "reified" - though I think "embodied" is the better word.

Users exist within the culture that surrounds them, and can't do anything -- read, communicate, experiment intellectually -- except by working through the culture.

Try a network metaphor: you're "at" node A; you pursue something that interests you and you end up at node B; you could have gotten there by clicking through nodes C, D, and E; or by clicking through nodes P, J, and T; or by any number of other routes; but you had to use the options the network made available to you. If you knew in advance that you wanted to go to node B *and* you knew where it was, you could have just entered its address, but one of the points I'm trying to make is that more often than not users don't know this - they're just pursuing semantic links suggested to them in a variety of ways.

This isn't "against" copyright owners; it's "through" culture. Users do float around and do all sorts of things, and that's exactly the dynamic that copyright law refuses to take into consideration in any systematic way.

[Bill Patry]

Julie:

A very helpful comment, thanks.

[Michael Martin]

I think Julie's use of the network metaphor suggests the possibility that I've been wondering since I read Larry's comment: does the plurality of uses available to the "situated user" in the end mean network externalities?

[Fred von Lohmann]

I agree completely with Julie's comment above -- where interaction with culture is concerned, how you get to a "use" is at least as important as the use itself. For example, the manner in which I (and others) discover new music -- from a web of recommendations by friends (including from "mix CDs" that constitute unauthorized copies!), noncommercial blogs, and commercial reviews -- is powerfully constituitive of the part of culture we call "music." This "how are works discovered" dimension should be recognized in copyright doctrine. Currently, it is only obliquely acknowledge, in rather meager statutory exceptions, like the "in store play" exception in 110(7), or in conspicuous voids, like the lack of an analog performance right for sound recordings.

The economic user doesn't fully appreciate the importance of this (well, perhaps they do, but it requires a pretty sophisticated picture of the user), at least insofar as the creation of preferences is less important than the economic transaction at the end of the process (i.e., I buy CDs). The romantic user doesn't care very much, as I'm principally talking about an ultimate use that is consumptive (i.e., I buy CDs). The post-modern user might be closest, but probably is oriented more critically (i.e., disrupting how I buy CDs) to the project than the situated user would be.

So, at a minimum, the situated user is a category that directs us to take more seriously the dynamics that traditional user models have missed. I'm not suggesting that it's merely a grab bag of left-overs -- I think there's a real core here. I'm looking forward to our discerning the shape of it this week!

[Bill Patry]

I think the "working through culture" motif can help one get to the type of uses that should be permitted. This is, in a broader sense what I think Judge Leval was getting at by transformative use, although I recognize that his articulation of it seems narrower.