The last thing that we need to note about the application of the fair use doctrine in practice is that the fair use doctrine, because of its flexibility and the way in which courts have been updating it over time, has kept up with technological changes. In fact, many of the traditional versions and elements of fair use have been updated by courts to the context of new technologies. This is both for the ordinary fair use and transformative fair use that we just discussed. They've been modified by new technologies and courts have applied these factors to the context of new technologies. The important thing to remember, though, is that even in these applications, and I keep stressing this point, it isn't as though the mere classification of something causes a court to conclude that it is fair use. It's still the same four factors that are applied, except that they come to be imbued with an element of technological specificity here, an element of a recognition that the technology changes the context. So, let me give you some examples to show you how this worked in practice. The first one is something called space-shifting. With the emergence of the video cassette recorder, you might remember at one point, the VCR, it allowed people to record their favorite television shows that were airing on broadcast television and watching it later on even though they weren't present when it aired live. Similarly, it allowed people to move certain things off of their hard drive when new floppy disk technology emerged and put it on to individual floppy disks or drives, and store them in their library. These two practices, the first one called time-shifting, the second one called space-shifting were litigated as elements of fair use and courts concluded that yes, within certain boundaries the Act would constitute fair use. In fact, the Supreme Court did say that the act of recording something to watch it later on when you are entitled to the original which was over the air broadcast, the act of time-shifting was a fair use running the four factors. Similarly, space-shifting was considered an element of fair use and the four factors were applied to it to conclude that what was going on was, in fact, fair use when small devices allowed people to carry things away from their hard drive. This doesn't just apply it to this particular context. It also emerged for other kinds of rights beyond the reproduction right. So, for example, another couple of cases entailed the use of thumbnails in searches. So, thumbnails, you all know, are small low resolution copies of high resolution photographs. You'll see this in Google Images search. They're often used as placeholders from which you can go to the original. Owners of copyright in the originals sued search engines claiming that the creation of these thumbnails amounted to copyright infringement by violating both the reproduction right and the public display right. The court concluded, no, this was fair use. Why? Because it was actually a transformative use. Not only was there the ordinary fair use components but the very purpose of the thumbnail was fundamentally different from the purpose of the original. One looks at the thumbnail not to study the intricacies of the original in the way in which one would when it's a high resolution photograph. The thumbnail is a placeholder. It's like a pointer to the original. That's a different purpose. The court says, and the court runs the four fair use factors through the idea of thumbnails to conclude that it's a transformative use. Similarly, the Google search process was recently concluded as a fair use. The act of making copies to make it a digital search and to show small elements of it in the form of snippets to get to the right page, the court concludes was a transformative use because it's a fundamentally different purpose from the purpose of the originals, which is to disseminate knowledge. Here, search is a fundamentally different purpose. It was a transformative use. So, these examples go to show you how both ordinary fair use and transformative fair use have come to be adapted to the context of new technologies. But remember, our ground rules stay the same. There are no bright-line rules. So, just because you engage in time-shifting doesn't mean that automatically becomes fair use. So, you can't just say, "Oh, I'm going to record all over the aired broadcast and make a large library of everything, and that's going to automatically be fair use." You shouldn't be that confident. You have to always apply the four fair use factors. And secondly, that when we are pushing the boundaries of whether something is fair use, it often is a matter for courts to litigate it. So, you're often on the lookout for what new recent cases there are that pushed the boundaries of fair use by stretching it to new technologies. That's technology and fair use.
