Media Contacts: Nancy Guida, 212.431.2325, nancy.guida@nyls.edu

LaToya Jordan, 212.431.2191, latoya.jordan@nyls.edu

New York Law School Presents Symposium on Wrongful Convictions

New York, NY (October 27, 2010)—The New York Law School Law Review and the West Point Center for the Rule of Law will convene legal experts to discuss ways to reduce the incidence of wrongful convictions at a symposium, “Exonerating the Innocent: Pre-Trial Innocent Procedures,” on Friday, November 5, from 8:15 a.m. to 5:30 p.m., at the Law School, located at 185 West Broadway.

“One of our generation’s greatest social challenges is finding a way to protect innocent people from criminal convictions and often years, decades, or a life of wrongful imprisonment,” said West Point Professor Tim Bakken, co-organizer of the symposium. “The symposium will offer perspectives on how the American adversarial system could be changed so that the innocent may establish innocence prior to their potential conviction and imprisonment. Conclusive exonerations through DNA testing of forensic evidence—testing that exists in relatively few cases—number in the hundreds, and it has been estimated that the number of innocent persons convicted during a 15-year period might be in the tens of thousands.”

The symposium will address a new approach for reducing the incidence of wrongful convictions: pre-trial innocence procedures and bureaus meant to limit the number of convictions of innocent people, especially the indigent, by allowing defendants to plead “innocent” and establish their innocence prior to or at trial. Panelists will discuss whether or how these procedures could spare innocent defendants from long prison terms in a system where establishing a person’s innocence following conviction is extremely difficult.

“Society also pays a terrible price when our constitutional rights yield no protection for innocent defendants,” said Lewis M. Steel ’63, who co-organized the symposium with Professor Bakken. Steel is Of Counsel at Outten & Golden LLP and has participated as a lead attorney in a series of highly publicized race-related murder trials and appeals, including the Rubin “Hurricane” Carter and John Artis case.

“The New York Law School Law Review is pleased to provide a forum for leading scholars and practitioners to address questions about the fairness and effectiveness of our criminal justice system and explore this bold proposal from a variety of theoretical and practical angles,” Marcey Grigsby ’06, Faculty Publisher of the Law Review, said. “We hope the symposium and its companion law review issue will influence attorneys, judges, scholars, policymakers, law students, the media, and others to think in new ways about how our justice system could more effectively achieve what is perhaps its most important goal: to convict the guilty while exonerating the innocent.”

The symposium will feature three panels: “Theoretical and Empirical Considerations of Pre-Trial Procedures,” “Approaches and Alternatives to Pre-Trial Procedures,” and “Political and Practice Considerations: Statutes and Demonstration Projects,” and a keynote address from The Honorable Theodore T. Jones, Associate Judge of the New York Court of Appeals and Co-Chair of New York’s Justice Task Force.

Panelists include legal scholars and practitioners:

• Steven Banks, Attorney in Chief of The Legal Aid Society.
• Leon Friedman, Professor of Law at Hofstra University School of Law. He has represented clients in important First Amendment cases dealing with the “Son of Sam” law and represented Rubin “Hurricane” Carter, who was freed after 19 years of imprisonment.
• Peter Neufeld, Neufeld Scheck & Brustin, Co-Founder of the Innocence Project.
• Lesley C. Risinger, Seton Hall University School of Law, represented Fernando Bermudez, a wrongfully accused man who was freed after 18 years in prison.
• Mike Ware, Dallas County District Attorney’s Office. He is the Special Fields Bureau Chief, responsible for the Conviction Integrity Division, which examines possible innocence cases, and recently helped free a wrongly convicted man, Stephen Brodie.

For a full list of panelists, visit www.nyls.edu/innocence.

Members of the media may RSVP to LaToya Jordan at latoya.jordan@nyls.edu or 212.431.2191. Five CLE credits will be available for $50. For more information about the symposium, visit www.nyls.edu/innocence.

About New York Law School
Founded in 1891, New York Law School is an independent law school located in lower Manhattan near the city’s centers of law, government, and finance. New York Law School’s renowned faculty of prolific scholars has built the School’s strength in such areas as constitutional law, civil and human rights, labor and employment law, media and information law, urban legal studies, international and comparative law, and a number of interdisciplinary fields. The School is noted for its nine academic centers: Center on Business Law & Policy, Center on Financial Services Law, Center for International Law, Center for New York City Law, Center for Professional Values and Practice, Center for Real Estate Studies, Diane Abbey Law Center for Children and Families, Institute for Information Law & Policy, and Justice Action Center. New York Law School has more than 13,000 graduates and enrolls some 1,500 students in its full- and part-time J.D. program and its four advanced degree programs in financial services law, real estate, tax, and mental disability law studies. www.nyls.edu

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The Following Authors’ Notes and Case Comments have been selected for publication in Volume 57 of the New York Law School Law Review

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Cassandra Volkheimer

An Introduction to Innovate / Activate

Christopher Wong

Innovation is unquestionably important to society. Intellectual property (IP) regimes seek to provide incentives for such innovation. However, understanding the “inter-working” of IP regimes and innovation has led many individuals and organizations to the conclusion that such regimes are not working well, or at all, to encourage innovation. In the face of such perceived failures, active communities have formed to address the shortcomings. Many communities have formed around issues such as free speech versus copyright; the importance of fair use; alternative licensing regimes like Creative Commons or free and open source software; patent protection of software and business methods; and the downstream innovation of essential medicines versus patents.

While traditional approaches to activism have been exceedingly effective in bringing about needed change, many organizations have found success in devising strategies that balance the extent to which activists work within existing innovation systems in order to achieve their goals, with continued exploration into the necessity of circumventing those systems. At the same time, the increased production of, and focus on, IP in all industries has catalyzed the emergence of IP obstacles in areas where IP has traditionally not been a consideration, creating new areas for activism. With both of these in mind, the Institute for Information Law & Policy at New York Law School sought to provide a forum for reexamining our approaches to improving global welfare by identifying new and existing IP-related challenges to activism, developing strategies for overcoming IP obstacles, and delivering practical solutions to spur social, political, environmental, scientific, technological, and legal change.

This special feature of the New York Law School Law Review website collects four essays, linked together by the participation of their authors in Innovate / Activate: An Unconference on Intellectual Property and Activism, held at New York Law School on September 24–25, 2010.¹ The event, co-sponsored by Google and the Yale Law School Information Society Project, brought together over 100 activists, academics, professionals, and students from around the world to collectively explore the ways in which IP influences global welfare. Participants came from a wide range of practice areas, representing the unique perspectives of organizations from abroad, such as the Center for International Environmental Law in Geneva, the Institute for Science, Innovation, and Ethics in Manchester, and The Centre for Internet and Society in Bangalore; domestic institutions like IBM, the Open Video Alliance, and MIT OpenCourseWare; and student-led endeavors like Universities Allied for Essential Medicines, Students for Free Culture, and the Redactive Poetry Project.

Innovate / Activate heralds a new conversation on a topic of critical importance. Intellectual property law has become a battleground and the location of tremendous conflict and flux in recent years.² As industries have placed an escalating emphasis on innovation as a critical component to their development,³ IP laws have, by all accounts, grown stronger,⁴ covering a broader swath of protectable subject matter.⁵ The effects of how IP owners manage their IP flow swiftly downstream to society, with very real consequences.⁶ But, for all its ubiquity, IP law remains poorly understood by those outside of legal and policymaking circles,⁷ and in particular by those who bear the social costs of IP policy. The reality of these social costs requires activists to rethink the ways that they confront obstacles.⁸

These essays, in various ways, illustrate the point that the conversation about IP and global welfare is no longer simply about what the law says. Determining how IP management plays out for the countless stakeholders that depend upon it demands the understanding that myriad factors are now part of the calculus. Lea Shaver’s essay, Intellectual Property and Social Justice: An Invitation, is a profound introduction to the access to knowledge movement from which Innovate / Activate sprang forth. Drawing on her experience as one of the integral figures in the access to knowledge movement, she provides a thoughtful prologue for framing activist endeavors, noting the significance of diffusion as an indispensible element of “valuable” innovation.

Of course, the laws governing IP are still an important starting point for those undertaking activist efforts on IP issues. Patricia Aufderheide’s Best Practices in Fair Use: A Pragmatic and Effective Approach to Rebalancing Copyright Policy in Practice provides an important perspective on the comprehension and practical application of those laws. Her essay picks up on one of the central themes of Innovate / Activate, namely the potential for activists to find avenues for accomplishing their goals within existing IP frameworks. She stresses that a key strategy to reclaiming balance in copyright is the exploration and effective use of balancing features within copyright policy, in particular fair use. Her conclusion is that “a vigorous application of fair use creates a functional, situational, just-in-time and just-what’s-needed public domain.” In doing so, she demonstrates the benefits that activists can gain from finding a productive “middle” between themselves and the institutions they seek to change.

Jason Summerfield’s Access to Cultural Property: Realigning Estate Planning with the Digital Age demonstrates the extent to which IP issues impact areas where IP is not a traditional consideration. He explores the mechanics of trust and estate administration as possible barriers to the public access of copyrighted material and cultural property in both physical and digital settings. He argues that access to our cultural history allows for the continuous dissemination and incorporation of important and groundbreaking works into our collective knowledge base and cultural production. Therefore, according to Summerfield, incongruities in estate and copyright law lead to both the disappearance of past IP, separate and apart from the physical destruction and looting of antiquities, as well as future IP that would have been created but for the inaccessibility to the cultural property.

Shane Wagman’s Network Neutrality: Marketing Failure turns our attention towards the architecture by which society accesses IP and activates on IP issues, in particular the governance of Internet content by Internet Service Providers. While her essay deals specifically with “Network Neutrality,” the fundamental principles of equality and nondiscrimination inherent in the Network Neutrality debate are central to the missions of many IP activists. She describes a theoretical pathway forward for Network Neutrality advocates that frames non-discrimination as a principle prohibiting the private regulation of Internet content and, in doing so, highlights the potential and importance of the Internet as a conduit for innovation.

***

Innovate / Activate came about as an attempt to bring together the multitude of people and organizations who operate in the spaces of IP and activism. Participants at Innovate / Activate reminded us of the importance of responsible IP management, but also, and more importantly, of our obligation to continue pursuing a better, stronger, and freer society. The ideas, conversations, and relationships that arose over the course of the two days have already begun to inspire new action and collaboration, and we look forward to bringing you the next chapter of Innovate / Activate

*Christopher Wong is the founder and Chair of Innovate / Activate: An Unconference on Intellectual Property and Activism.  He is a Postgraduate Fellow and Lecturer at the Institute for Information Law & Policy at New York Law School and a Visiting Fellow at both the Princeton University Center for Information Technology Policy and the Yale Law School Information Society Project.

¹ An archive of the Innovate / Activate Unconference is available at http://www.nyls.edu/innovateactivate. The website includes links to videos of the unconference proceedings.

² See generally Amy Kapczynski, The Access to Knowledge Mobilization and the New Politics of Intellectual Property, 117 Yale L.J. 804 (2008) (applying sociological theory to analyze the global backlash to increasingly restrictive IP regimes).

³ For a few examples, see American Chemical Society, U.S. Innovation: Critical Needs for a Sustainable and Secure Future (2009–2012), available at http://portal.acs.org:80/portal/PublicWebSite/policy/publicpolicies/enable/innovation/WPCP_011518; Pharmaceutical Research and Manufacturers of America, Innovation, PhRMA, http://www.phrma.org/innovation (last visited Oct. 31, 2011); Institute of Electrical and Electronics Engineers, USA Innovation Institute, ieeeusa.org, http://www.ieeeusa.org/careers/innovation (last visited Oct. 31, 2011); and Microsoft, Microsoft Innovation Center, Microsoft.com, http://www.microsoft.com/mic/mic-about.aspx (last visited Oct. 31, 2011).

⁴ Mark A. Lemley, Property, Intellectual Property, and Free Riding, 83 Tex. L. Rev. 1031, 1042 (2005) (“By virtually any measure, intellectual property rights have expanded dramatically in the last three decades.”).

⁵ Kapczynski, supra note 2, at 821.

⁶ Lea Shaver, Introduction, in Access to Knowledge in Brazil: New Research on Intellectual Property, Innovation and Development 8 (Lea Shaver ed., 2008), available at http://www.law.yale.edu/documents/pdf/ISP/A2KBrazil_bkmk.pdf.

⁷ Id. at 7 (“Few areas of law touch so closely upon our everyday activities – yet are so poorly understood – as intellectual property law.”).

⁸ See Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 Law & Contemp. Probs. 173, 196 (“Our legislative process demonstrates a systematic imbalance in favor of the expansion and deepening of exclusive rights to information at the expense of the public domain. The imbalance exists because the benefits of such rights are clearly seen by, and expressed by, well-defined interest holders that exist at the time the legislation is passed. In contrast, most of the social costs – which are economic, social, political, and moral – are diffuse and likely to be experienced in the future by parties not aware of the fact that they will be affected by the extension of rights.”).

Intellectual Property and Social Justice: An Invitation

Lea Shaver*

As someone who cares about social justice, what are your thoughts on intellectual property? You might think this is one area in which you can afford not to have an opinion. But I want to convince you otherwise. In fact, intellectual property policy lies at the heart of vital issues such as access to health care, democratic culture, economic growth and jobs, and the cost of almost everything consumers buy.

Like many of us, I became a lawyer because I wanted to make an impact. The issues foremost in my mind when I entered law school were global poverty and international development. I wanted to learn about legal institutions to better understand how to create opportunities for the world’s most disadvantaged. I thought that “my issues” were human rights, particularly socioeconomic rights such as the right to education, the right to housing, and the right to health care. I didn’t think I was interested in intellectual property.

In my third year of law school, however, I had the good luck to take part in a new seminar that Jack Balkin and Yochai Benkler were offering at Yale Law School. Through the lens of “Access to Knowledge,” we explored the ways that intellectual property impacts development, health care, and education. I realized that intellectual property was central to the issues that I cared about. Today, my scholarship focuses precisely on the relationship between intellectual property, economic development, and human rights. And I see myself as part of a broader movement, including scholars and activists, for access to knowledge.

What do I mean by the term: access to knowledge?

Knowledge can come in many forms, including: inventions, ideas, and information. In all its forms, knowledge is not merely of intellectual interest. It is also useful in very practical ways. Knowledge can make people healthier, such as when new scientific data drives a doctor to recommend a different treatment, or when new medicines are invented. Knowledge can provide new opportunities, such as when communications technology helps a small businessperson sell their goods for a fairer price, or a textbook or website helps a student acquire new skills. Even forms of knowledge that are primarily designed for entertainment, such as novels and movies, are part of a shared culture that connects us as a society. This utility makes knowledge highly valuable, both in simple monetary and non-monetary terms.

To a great extent, everything that makes our lives better depends on innovation, ideas, and information—innovation that, quite often, the law recognizes as the intellectual property of a particular individual or corporation. This is where the question of access becomes very important. When the law designates an idea as intellectual property, it gives one owner the right to exclude everyone else from having access to it: access to use it, access to improve upon it, and access to sell goods based on that idea. This legal right to exclude enables the owner to charge for access to the innovation. Often, the price to access will be very expensive because the right holder can also exclude potential competition.

Accordingly, the access to knowledge perspective asks a question that is long overdue in intellectual property law and policy: as innovation happens, who is able to benefit from it and who is not? How can new knowledge be most effectively used to advance social welfare? What is the role of the law in determining who is in the door, and who is left outside? Might all those barriers to access actually have a negative impact on economic growth and future innovation?

Public discussion on intellectual property so often assumes that we just have to get the incentives right, and the market will produce all the innovation we need. But there is a blind spot: What about the next step? Innovation should not be thought of as merely coming up with new ideas. The spread and use of these new ideas, the diffusion, is what gives the innovation its value. Ideally, new knowledge should be available and affordable, so that it quickly becomes widely used. This is obviously important for social welfare, when we are talking about ideas that can make us healthier, better educated, or more secure. But it is also crucial to economic growth. If businesses are slow to get access to new technologies and ideas, we are limiting their productive potential.

Therefore, from the perspective of the public good, diffusion is essential. It is where innovation achieves its social impact by reaching as many people as possible, particularly the poor, who always seem to be the last to benefit. The rapid and wide spread of new ideas, inventions, and information also has a very important impact on economic growth.

From the perspective of the person holding an intellectual property right, diffusion may or may not be a priority. For some innovations, pursuing rapid diffusion, offering the new product at an affordable price, and seeking a large market makes perfect business sense. For others, the right holder may wish to restrict diffusion, charging a premium to a smaller pool of customers. In certain sectors, the right holder may realize that they can charge exorbitant fees and count on insurers or taxpayers to foot the bill. When this happens, intellectual property protection is in tension with the public good.

Given this tension, the question becomes whether our intellectual property policy is striking the right balance between business incentives and broader access. There are powerful constituencies of public interest advocates and ordinary citizens who care deeply about education, health care, consumer rights, rising costs, and whether the government is paying too much for the things that it purchases. But most of them do not yet realize how intellectual property is relevant to “their issues.” There is an additional hurdle to clear, as well, because many people think that intellectual property is very complicated, or very technical. They are not sure they even have a place in this debate. But it desperately needs their voices.

We need to educate a new generation of lawyers who can help demystify intellectual property’s role in impacting the things that so many of us care about, and educate public interest advocates about how this area of the law affects “their issues” too.

^* Lea Shaver is an Associate Professor at Hofstra Law School, where she teaches intellectual property and transnational law. Previously, Shaver served as an Associate Research Scholar and Lecturer in Law at Yale Law School. Shaver’s principal research interests include international intellectual property, law and technology, and human rights. Her work has been published in the Wisconsin Law Review, the Wisconsin International Law Journal and the Washington University Global Legal Studies Review, among other academic journals. She is the editor of Access to Knowledge in Brazil: New Research on Intellectual Property, Innovation and Development and the co-editor of Access to Knowledge in Egypt: New Research on Intellectual Property, Innovation and Development. Both books are published by Bloomsbury Academic on a Creative Commons license and are available for full text download at http://ssrn.com/author=880999. The present work is also made available to a public under the Creative Commons Attribution 3.0 License. You are free to copy, download, share, and adapt this work, provided that you give credit to the author and to the New York Law School Law Review.

Best Practices in Fair Use: A Pragmatic and Effective Approach to Rebalancing Copyright Policy in Practice

Patricia Aufderheide*

As many scholars including Boyle, Lessig, Netanel, and McLeod have noted, copyright policy has, since the 1976 rewrite of the Copyright Act, become ever more unbalanced in favor of current copyright holders.¹ Copyright terms have been extended to the point that copyrighted material evoking our own cultural experience is off-limits for unlicensed uses in our lifetimes. The realm of the public domain has shrunk. Formerly permitted uses, such as some derivative works, have been swept into the owner’s basket of rights. Even existing rights such as fair use have been permitted to be pre-empted in favor of maintaining owners’ encryption of their digital materials.

This unbalancing is a profound deformation of values with which copyright policy was originally established, as Lewis Hyde has so persuasively argued in Common as Air.² It has a direct and demonstrable effect constraining the creation of new culture, as the Center for Social Media studies of filmmakers have shown.³ The unbalancing of copyright—stressing ownership rights over the rights of new users of existing culture—deforms the fundamental goal of copyright policy: to promote the creation of culture.⁴

In this environment, exploring the full extent of balancing features of copyright policy becomes a key strategy to reclaim equilibrium. Among those balancing features, in U.S. law, the most ample and flexible is fair use, which is the right to use copyrighted material without permission or payment under some certain circumstances.  A vigorous application of fair use creates a functional, situational, “just-in-time,” and “just-what’s-needed” public domain.

This right has grown in the estimation of judges since the publication of Judge Pierre Leval’s seminal article,⁵ and has been applied with growing consistency.⁶ The principle of transformativeness, the key to the second of the “four factors” in the fair use doctrine, has come to be dispositive.⁷ Judges have understood transformativeness, often without so articulating and often perforce, within the context of the practices of a particular community of users.⁸

While judicial enthusiasm for fair use has evolved, many potential users look at fair use with skepticism and doubt. Discouraged by publicity campaigns from media companies mostly concerned with downloading, confused by arbitrary guidelines,¹⁰ warned off by copyleftist claims that fair use is a mere defense and a lawyer’s playground, and intimidated by rumors of gigantic statutory damages fostered by ubiquitous cease-and-desist letters, users have shied away from using their rights. Even when individuals choose to exercise their rights to employ copyrighted material in the making of new cultural expressions, they may find themselves balked by gatekeepers such as commercial distributors, general counsels, or boards of education.

Developing codes of best practices in interpreting fair use—a strategy developed by Peter Jaszi—has given several communities of practice an ability to take advantage of existing rights. These communities have developed these codes mostly in conjunction with Jaszi and myself at American University as facilitators. There are now eight codes of best practices, for the following communities, all available at the Center for Social Media: documentary filmmakers, media literacy teachers, online video makers, makers of OpenCourseWare (open-access curriculum materials in higher education), film teachers, film scholars, communication scholars, and dance archivists. Poets and research librarians will soon have codes of best practices as well. The codes were created through a process of community consultation, involving group deliberation in closed meetings. The codes function as guides to reasoning, not guidelines that dictate specific actions, thus avoiding the danger that a “floor,” the baseline of possibility, becomes a “ceiling,” an inhibitor to action.

By developing codes, these communities have expanded their ability to make work and improved its quality. Furthermore, these communities have independently become constituencies for a balanced copyright regime, and members of those communities have become political actors who have won legal changes in copyright policy.

The creation of these codes has had a very direct effect on creative practice. For instance, documentary filmmakers have watched as fair use-intensive works, such as This Film Is Not Yet Rated, Hip Hop: Beyond Beats and Rhymes, Waiting for Superman, and Gasland, were completed and shown on television. This is in part because every insurer of errors and omissions insurance—typically required at a filmmaker’s expense for broadcast or cablecast—now accepts fair use claims without added cost as a result of the creation of the Documentary Filmmakers’ Statement of Best Practices in Fair Use (the “Statement”). Until the Statement’s creation in 2005, insurers typically excluded fair use claims or included them after negotiations for a higher fee. With the creation of the Statement, lawyers could easily write a letter pledging that the film followed the terms of the Statement rather than having to write a far more difficult letter pledging that the uses were, in the lawyer’s personal and professional estimation, fair. Insurers correctly understood the power of a consensus document in the most valuable currency possible: their own professional practice. Media literacy teachers have seen the terms of their Code of Best Practices in Fair Use for Media Literacy Education incorporated into copyright guidelines of their own boards of education and built into media contests for K–12 students.¹¹ Dance archivists have been able to showcase precious heritage materials, and makers of OpenCourseWare have been able to flesh out course “skeletons” and develop humanities courses that previously were off-limits.

The recent round of petitions for exemptions to the Digital Millennium Copyright Act (the “DMCA”) demonstrated the political power of an informed and active community. In May 2009, users including documentary filmmakers, makers of online video, professors, and media literacy teachers appeared before the Copyright Tribunal to argue that they needed to break encryption on DVDs in order to do their work. They clearly understood that the DMCA inhibited their fair use rights. These presentations were made mostly by people who had participated in the creation of codes of best practices in fair use, though they came to the process independently and through their own organizations. As Peter Jaszi noted, their petitions resulted in the most far-reaching and flexible set of exemptions from the DMCA’s penalties for breaking encryption yet issued.

These acts of rebalancing copyright have been shaped within the practice of specific communities, but they have broad implications. They demonstrate that fair use is flexible, but not unreliable, and that it functions as a right, not a mere defense. They show that people can reason for themselves, freeing themselves from rigid prescriptions, given clear and simple logic. They also demonstrate that powerful changes in the daily practice of copyright policy can occur without legislative reform. Lastly, they demonstrate that people who use their rights can also easily present themselves as political actors in defense of those rights.

In a less-than-ideal world, fair use is a powerful tool to rebalance copyright in daily life and practice. It is well-suited to the exploding world of digital production on an amateur and pro-am basis. It is a tool that can be applied within communities, and with principles that can be applied beyond those communities as well. It is a gateway right to make clear the distortions that ensue when copyright policy becomes unbalanced. It is both a place to start and a place to be for those who want to address the unhealthy consequences of unbalanced copyright.

*Patricia Aufderheide is co-author, with Peter Jaszi, of the forthcoming book Reclaiming Fair Use (2010). Aufderheide is a Professor in the School of Communication at American University, and directs the Center for Social Media there.

¹ See James Boyle, The Public Domain: Enclosing the Commons of the Mind 86–87 (2008); Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World 25 (2001); Kembrew McLeod, Freedom of Expression: Resistance and Repression in the Age of Intellectual Property 252 (2007); Neil Netanel, Copyright’s Paradox 7 (2008).

² Lewis Hyde, Common As Air: Revolution, Art, and Ownership 242 (2010).

³ See Patricia Aufderheide & Peter Jaszi, The Good, The Bad and the Confusing: User-Generated Video Creators on Copyright, Center for Soc. Media (Apr. 3, 2007), http://www.centerforsocialmedia.org/sites/default/files/Final_CSM_copyright_report_0.pdf; Patricia Aufderheide & Perter Jaszi, Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers, Center for Soc. Media (Nov. 2004), http://www.centerforsocialmedia.org/sites/default/files/UNTOLDSTORIES_Report.pdf; Renee Hobbs, Peter Jaszi & Patricia Aufderheide, The Cost of Copyright Confusion for Media Literacy, Center for Soc. Media (Sept. 2007), http://www.centerforsocialmedia.org/sites/default/files/Final_CSM_copyright_report_0.pdf.

⁵ Peter Jaszi, Fair Use and Affirmative Defenses, in Copyright law 818 (Craig Joyce et al. eds., 2003); Peter Jaszi, On the Author Effect: Contemporary Copyright and Collective Creativity, in The Construction of Authorship: Textual Appropriation in Law and Literature 31 (Peter Jaszi & Martha Woodmansee eds., 1994); Patricia Aufderheide & Peter Jaszi, Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video, Center for Soc. Media (2008), http://www.centerforsocialmedia.org/sites/default/files/CSM_Recut_Reframe_Recycle_report.pdf.

⁶ Pierre N. Leval, Toward A Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).

⁷ See Peter Jaszi, Copyright, Motion Pictures and Fair Use, 2007 Utah L. Rev. 715; Pamela Samuelson, Unbundling Fair Uses 56–68 (2009).

⁸ Barton Beebe, An Empirical Study Of U.S. Copyright Fair Use Opinions, 1978–2005, 156 U. Pa. L. Rev. 549 (2008).

⁹ See Michael J. Madison, A Pattern-Oriented Approach to Fair Use, 45 Wm. & Mary L. Rev. 1525 (2004).

¹⁰ Tarleton Gillespie, Characterizing Copyright in the Classroom: The Cultural Work Of Antipiracy Campaigns, 2 Comm., Culture & Critique 274, 274–318 (2009).

¹¹ Kenneth Crews, The Law of Fair Use and the Illusion of Fair-Use Guidelines, 62 Ohio St. L. J. 602 (2001).

¹² See generally Renee Hobbs, Copyright Clarity: How Fair Use Supports Digital Learning (2010).