X. Interest Analysis

In close questions of copyright law, it is often useful to consider the “love triangle” of interests always present and competing in any copyright case: the interests of the creators (typically the plaintiffs), the interests of the users (typically the defendants), and the interests of consumers (i.e., the public at large). Each one of these entities has a legitimate interest. Additionally, most materials protected by copyright fall into one of three categories, and sometimes the categories overlap. Copyrights tend to protect works of information (e.g., data and information), works supporting education (e.g., textbooks and how-to books), and works of art and entertainment (e.g., novels, plays, photographs, music, and movies). These kinds of materials are works that society would like to encourage, which is partly why copyright law exists in the first place. Society encourages people to produce works that inform, educate, and entertain, because society as a whole values these pursuits.

Thus, copyright law is like a big social contract. It is an implied contract between the government and creators, giving creators the exclusive right to make money from their works for a certain period of time in exchange for their agreement to share their creation with the public.90 At the same time, it is important to remember that the public domain is a key part of the balance of copyright law. The public domain is comprised of all the works of literature, all the movies, and other works that copyright law does not protect. Ideas, facts, and works whose copyright protection has expired are in the public domain. The public domain is vital because the public gets to use and enjoy these works for free, without having to pay royalties to the copyright owner.91 Thus, the public can get those things for free, or at least at a reduced price, if they are no longer protected by copyright law. For example, a literary work in the public domain can be made available to the public at a substantially reduced cost because the publisher does not have to compensate the copyright owner. The publisher's only costs come from production, storage, transportation, and distribution.

Hence, the Constitution's allowance for copyright protection fashions an incentive to create. From a plaintiff's perspective, we must ask whether a court's ruling will make it more or less likely that creators are going to want to create. Is the ruling going to encourage potential authors by providing an incentive to create, which society views as a positive, or is it going to reduce the likelihood that someone is going to write a novel, make a movie, compose a symphony, or write a screenplay? Similarly, from an author's perspective, we must ask whether a court's ruling is going to increase or reduce the costs for the creators.

Defendants, on the other hand, typically those who are using another's work in some way, ask whether a court's ruling is going to harm freedom of expression. The public places a high value on freedom of expression because it strengthens and enhances social and political discourse. The freedom to make use of the works of others benefits society because it allows individuals to stand up and protest or express unpopular views. Generally speaking, using pieces of someone else's work as part of a documentary, or to make a parody, for example, should be encouraged. American society has deemed allowing these types of uses to be important.

Defendants, typically users of copyrighted material, will argue that court rulings should not stifle the expansion and acceptance of new technology; all the exciting and different ways that inventors have provided us to be able to copy and reproduce works. The public-especially the younger generation-quickly falls in love with technology that allows them to access information and entertainment easily, quickly, and cheaply92 (witness the iPod craze93 ). People tend to believe that they are entitled to use cutting-edge technology to gather and enjoy works for free. Anyone over the age of fifty can remember a time when the public was frightened to photocopy a page from a book. Today a mouse-click can copy and deliver nearly any media (e.g., audio, video, text) to our laptops in the blink of an eye. No more standing in line at the copy center and arguing with the attendant. It's there, it's easy, and it's free. As Steve Johnson, Chicago Tribune columnist and Internet critic, writes, he wants all these things, and he wants to be able to have them for free.94

Therefore, laws do not have to stifle technology and markets just to facilitate paying people who are, in some ways, merely greedy property owners. It is, in fact, the consumers who want to use copyrighted works for little or no cost with the aid of technology. Consumers support the arguments that are being made by the defendants, typically, because they want cheap and easy access to information, education, and entertainment. As Walter Mossberg of the Wall Street Journal remarked:

But the public, in addition to wanting to gorge itself on fast and cheap access, also recognizes a need for the system to work. If creators lack a financial incentive to create, it is the public at large that will suffer the injury of having fewer works to enjoy and learn from. Thus, the public has a genuine interest in seeing that creators receive a fair reward for their efforts. In order to achieve that goal of promoting information, education, and entertainment, it is necessary to prevent some people from being unjustly enriched by free-riding off the labor and investment of others. We generally dislike the thought that people are able to profit at someone else's expense in instances where they are not entitled to the work. For example, when a number of homeowners live on a private dirt road and decide to pave the road, there is not much incentive for the people at the beginning of the road to want to contribute to the cost, because the people at the end of the road will pay for that portion anyway. In a parallel situation, both the plaintiff, Viacom, and the public have an interest in seeing that YouTube does not simply get a free-ride from Viacom's efforts. Allowing unjust enrichment gained through free-riding would be bad public policy because it would decrease the incentive for creators to create and would therefore decrease the amount and perhaps the quality of works available for the public. Turning back to the case at hand, what will be the outcome if this case is fully litigated? There are a lot of facts, policies, values, interests, and precedents that will have to be considered and evaluated. The judge and the jury will be stretched to the limit.