Page 138 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 5 Formulating a Non-commercial UGC Creation Levy Scheme
An Intermediary-oriented Approach

removal of 55 seconds from an 89-minute film would be unfair if the excerpts were
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qualitatively substantial to the film. In the first litigated music sampling case in the US,
Grand Upright Music v Warner Brothers, the court wrote ‘Thou shalt not steal’ as the first
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sentence of its decision, adding that this applies regardless of how much is taken. In another
influential decision on sampling, Bridgeport Music v. Dimension Films, which has not been
overturned yet, the Sixth Circuit Court of Appeals bluntly instructed: ‘[g]et a licence or do
not sample’. Nevertheless, some controversies have arisen over the criteria of ‘qualitative
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value’. For instance, in Jarvis v. A&M Records, the court suggested that the taking of the
cliché words ‘oohs’, ‘moves’ and ‘free your body’ from the original work constituted an
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infringement despite the lack of expressive qualities of these words.
The cases discussed above show that the fair use/fair dealing rule can hardly serve as
a safety valve for UGC creation. As Mark Lemley and Eugene Volokh observed and the
courts have cited, a fair use decision is ‘sophisticated and fact-intensive, and must be crafted
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with a good deal of thought and effort’. Peter Menell pointed out more trenchantly that the
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standards under the fair-use test are notoriously vague. Although some patterns have been
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observed in fair use judicial decision-making, Yahong Li noted that such patterns have no
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binding force and cannot provide predictable guidelines for UGC creation.
The requirement that this issue must be determined on a case-by-case basis, paired with
its high unpredictability and the considerable cost of litigation, suggests that the legislators
did not have risk-averse end users in mind when they codified the fair use rule. The decision
on fair use/dealing originated with the ‘fair abridgment’ rule, which excused a publisher for
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abridging a competitor’s book, and then evolved to address professional users such as video
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and recorder producers and Internet service providers. However, as Chapter 4 illustrates,
the fair use/dealing rule becomes an empty word when access to a work is controlled by

45 503 F. Supp.,1137, 1145 (S.D.N.Y.1980).
46 780 F. Supp. 182, 183 (S.D.N.Y. 1991). (citing Exodus 20:15).
47 410 F.3d 792, 804 (6 Cir. 2005).
th
48 827 F. Supp. 282, 292 (D.N.J. 1993).
49 Mark Lemley and Eugene Volokh, ‘Freedom of Speech and Injunctions in Intellectual Property Cases’ (1999) 48 Duke Law
Journal 147, 201; Salinger v. Colting, 607 F.3d 68, 81 (2d Cir. 2010).
50 Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.1975) (‘most cases are decided on an ad hoc basis’); Peter
Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960) (‘[t]he test for infringement of a copyright is of
necessity vague’); see generally Nimmer on Copyright, § 13.03 (citing cases). cited from Menell (n 8) 446, note 130.
51 Michael J. Madison, ‘A Pattern-Oriented Approach to Fair Use’ (2004) 45 Wm. & Mary L. Rev. 1525, 1525; Pamela
Samuelson, ‘Unbundling Fair Uses’ (2009) 77 Fordham Law Review 2537, 2541; Matthew Sag, ‘Predicting Fair Use’ (2012)
73 Ohio State Law Journal 47, 49.
52 Li (n 12) 20.
53 Dodsley v. Kinnersley, Amb. 403 (1761); Cary v. Kearsley, 4 Esp. 168 (1803).
54 Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 436 (1984).
th
55 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9 Cir., 2001); In re Aimster Copyright Litigation, 334 F.3d 643,
649 (7th Cir. 2003).

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