Lawful Personal Use

Citation: Jessica Litman (2007) Lawful Personal Use. Texas Law Review (RSS)
Internet Archive Scholar (search for fulltext): Lawful Personal Use
Download: http://www-personal.umich.edu/~jdlitman/papers/LawfulPersonalUse.pdf
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Summary

US law does not draw boundaries of personal use, not subject to copyright. What is personal use a matter lawyers disagree on. But it has been shrinking. 50 years ago, copyright rarely concerned uses not both public and noncommercial. Author provides cases demonstrating historically constrained interpretation of copyright, says should be understood as defenses of readers' interests.

Fair use factors inapt for evaluating personal use.

Author argues for distinction instead between exploitation and enjoyment of copyrighted works; liberty to enjoy should be preserved, and often has been.

Difficult to draw boundary between when owners' opportunity to exploit, and consumers' right to enjoy are diminished. Proposes principles:

• Technological neutrality
• Balance

Uses incidental to exercise of traditional enjoyment should be allowed, eg copying a file into a computer's memory.

Enhancement or diminishment of enjoyment needs to be considered as well as enhancement or diminishment of exploitation.

Concluding quote:

Nothing in the legislative history of the 1976 Act suggests that members of Congress intended to transform copyright from a grant of limited exclusive rights into an expansive monopoly over all uses of copyrighted works. As recently as ten years ago, a suggestion that a literal reading of the statute in light of recent cases might give copyright owners control over reading, listening, and other personal uses seemed outlandish. Today, it increasingly seems to be inevitable, even though the underlying statutory language hasn’t changed. Part of the blame belongs at our own doors. When scholars insisted that uses are unlawful unless expressly exempted, lawyers and courts may have believed us; we may have believed ourselves.