The Supreme Court Case Of Folsom V. Marsh

Historically the most impressive and well formed content is created when there is competition in the market. Market competition inciting innovation and creativity dates back to laissez-faire and the free market supported by nineteenth century European liberalism(Fine). Their belief included the government’s use not being active, but rather a passive entity that does not interfere with its citizens except to administer justice. Other than physically stealing from another, the government did not punish use of others products in one's own. Admittedly most product was not content that could be created and shared on the massive scale today, but the underlying principle of government non-interference stands. After the U.S. adopted a similar capitalist

It was argued by Marsh that the papers were not copyrightable because they are not private property, should belong to the U.S. as they are of the President, and the use was fair as it was created an entirely new work(Patterson). Because “353 [pages] ...were copied verbatim from Sparks’ work”(Patterson 433) the court ruled that this constituted a copyright infringement. Although in viewing the specifics of the case one could also conclude the use was unfair, the case began fair use law in the United States on the wrong foot. Precedent was set by the case so the victim had to clearly prove it was fair use, and courts punished harshly for unfair use. However Judge Story wrote an opinion that did not protect fair use but contained an outline of problems fair use has continued to have. Story wrote “Patents and copyright approach, nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of law, where distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent”(Patterson

The act gave four factors to consider, similar to the factors Judge Story had considered for his case, which included the purpose and character of the use, the nature of the copyrighted work, the amount of the copyrighted work used, and the effect of the use on the market for the original work. Once again the government had found that there was a problem regarding fair use, but the 1976 Copyright Act was not a solution as it gave too much power to copyright holders, and although the factors the consider are important, exactly how to value them and judge based on them is not defined. Judges including Pierre Leval and those he was in content with would judge a multitude of fair use cases, but would come to a conclusion based on some preconceived fair use notions as there have not been clear written protections which cause a work to beyond a doubt be fair use. As technology continued to improve it became clear that another large change was needed regarding copyright in the county. The Digital Millennium Copyright Act, or DMCA was enacted in 1998, and gravely hurt free use in the country, mostly on the