Copyright Law Exceptions

Copyright law, contained in Title 17 of the United States Code, is fundamentally instituted to provide protections for owners of original works. Copyright owners' rights, which are outlined under 17 U.S.C. § 106, include the unique power to control use of the protected works. However, in the interest of promoting access to these works, Congress enumerated certain exceptions to copyright law under 17 U.S.C. §§ 107-122 such as reproduction by libraries, secondary transmission of motion pictures by cable, and reproduction of works for people with disabilities.

An additional exception to copyright law is the "fair use" according to 17 U.S.C. § 107. Under this section, use of copyrighted work "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" does not constitute copyright infringement. To determine whether a work falls under the fair use exception, the courts must conduct a statutory analysis and consider the following: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the infringing use 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. In Campbell v. Acuff Rose Music, Inc., the United States Supreme Court recognized fair use as an affirmative defense to claims of copyright infringement. Accordingly, defendants can essentially succeed in litigation by establishing the alleged infringing use fell within the fair use exception to copyright law.

Under the Digital Millennium Copyright Act ("DMCA"), the courts recognize additional safe harbor provisions to protect Online Service Providers ("OSPs") from liability for copyright infringement. To qualify for protection under the safe harbor provisions, an OSP must demonstrate that: (1) it did not have knowledge of the infringing activity or did not stand to financially benefit from the activity; (2) it had a copyright policy in place and subscribers had proper notice of the policy; and (3) it listed a representative who dealt with copyright complaints. These provisions seek to compel OSPs to initiate structures for reporting and preventing copyright infringement. OSPs that implement and maintain such programs are rewarded for helping prevent infringement.

For example, Grooveshark, an online music sharing service, utilized the DMCA's safe harbor provision as a means of providing unlicensed music while avoiding litigation for potential infringement. Grooveshark provides "more than 15 million songs" without the appropriate licensing. However, it has successfully avoided litigation by effectively complying with the DMCA provisions. Grooveshark's Takedown Policy provides a system through which consumers can report infringing activity and Grooveshark will review the content in question and take down material that constitutes copyright infringement.

Nonetheless, major recording labels, such as Universal Music Group, Sony Music Entertainment, and Warner Music Group have initiated litigation to prohibit future unlicensed use of copyrighted works. This comes at a time of growing societal disapproval for copyright infringement especially in the realm of recorded music and movies.