Warming Up to User-Generated Content — Are mashups legal?

News: I’ve been revising my latest article titled “Warming Up to User-Generated Content.”  It’s all about Web 3.0, cloud computing, and mashups.  Oh, and I almost forgot, it’s about copyright law, too!

You can download a draft of the article by clicking here.  Below is my latest Abstract for the piece:

Conventional views of copyright law almost always operate from the “top down.”  Copyrights are understood as static and fixed from the Copyright Act.  Under this view, copyright holders are at the center of the copyright universe and exercise considerable control over their exclusive rights, with the expectation that others seek prior permission for all uses of copyrighted works outside of a fair use.  Though pervasive, this conventional view of copyright is wrong.  The Copyright Act is riddled with gray areas and gaps, many of which persist over time because so few copyright cases are ever filed and the majority of those filed are not resolved through a judgment.  In these many gray areas, a “top down” approach simply does not work.  Instead, informal copyright practices effectively serve as important gap-fillers in our copyright system, operating from the bottom up. 


The tremendous growth of user-generated content (UGC) on the Web provides a compelling example of this widespread phenomenon.  The informal practices associated with UGC make manifest three significant features of our copyright system that have escaped the attention of legal scholars: (i) our copyright system could not function without informal copyright practices; (ii) collectively, users wield far more power in influencing the shape of copyright law than is commonly perceived; and (iii) uncertainty in formal copyright law can lead to the phenomenon of “warming,” in which—unlike chilling—users are emboldened to make unauthorized uses of copyrighted works based on seeing what appears to be an increasingly accepted practice.  Although the warming phenomenon has been completely ignored in prior copyright scholarship, warming serves as a powerful counterforce to the chilling of speech, even where copyright law is uncertain.        


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