A recent dispute involving Amazon.com and some Dutch media students highlights the danger of overestimating the power of fair use to defend against claims of on-line infringement.  About two weeks ago, two students from the Piet Zwart Institute of the Willem de Kooning Academy  Hogeschool, located in Rotterdam, created a tool that allowed Amazon.com customers to download pirate copies of the books, movies and music they were seeking from the Amazon.com site. The tool was a Firefox plug-in that created an official-looking button next to Amazon’s listing for each item that said “Download 4 Free.”  Rather than making legitimate, authorized purchases from Amazon.com, however, the customers using the tool were instead directed by hyperlinks to the Pirate Bay, an unauthorized BitTorrent site, and a BitTorrent client would be started up to initiate the unlawful download. The students called their project “Pirates of the Amazon.” 

  
The students’ tool and corresponding website were taken down after Amazon.com filed a DMCA notice, and in most similar situations that would have been the end of the matter.   In this case, however, the students issued a ringing defense of their activities under the fair use doctrine, which is codified at 17 U.S.C. 107.  Fair use can provide a complete defense to a wide variety of unauthorized uses, and has been applied particularly expansively in connection with parody, as in Campbell v. Acuff-Rose, the well-known 1994 Supreme Court decision involving a rap parody of Roy Orbison’s “Oh Pretty Woman.”  Accordingly, the creators of “Pirates of  the Amazon” posted an explanation in which they claimed that the project was “an experiment in interface design, information access and currently debated issues in media culture.” In a follow-up e-mail reported by the New York Times (Dec. 8, 2008 at B6), the students posited that Amazon.com and the Pirate Bay “might look like opposites, but are actually quite similar in regards to the mainstream media content they provide . . . Our product demonstrated this practically.  So it’s a parody of any kind of media consumerism, whether corporate or subcultural.” More...