From Daniel Lee, Undergraduate Services Librarian at the University of Arizona (full text on American Library Association website here)
Section 107 of the Copyright Act of 1976 defines fair use. It is a vague definition, intentionally so, presenting broad principles with no reference to numerical limits on the portion of a work used, or the length of time a work can be used. This vagueness provides tremendous flexibility, but also leads to much uncertainty. Applying the statute to a particular proposed project can result in multiple, quite reasonable interpretations. In an effort to combat this uncertainty and make fair use more predictable, representatives of both copyright holders and consumers have often met to develop guidelines that provide the sort of specificity that many find desirable.
The most well known of these guidelines are the CONTU Guidelines on Photocopying Under Interlibrary Loan Arrangements, adopted in 1978, and the Agreement on Guidelines for Classroom Copying in Not-for-profit Educational Institutions with Respect to Books and Periodicals (often referred to as the "Classroom Guidelines"), adopted in 1976. More recently, attempts were made to reach similar agreements for educational multimedia, electronic reserve, and distance learning. For the most part, agreement could not be reached as copyright owners believed the proposed guidelines to be overly permissive, and library and educational representatives found the proposals to be too restrictive.
The failure of the recent negotiations and almost 25 years of experience with the earlier guidelines have led many to conclude that fair use guidelines, by their very nature, fail to capture the principles embodied in fair use and are of little practical help.
A Powerpoint on fair use for librarians here.
CONTU Guidelines here.
http://www.dunnington.com/
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Showing posts with label fair use doctrine. Show all posts
Showing posts with label fair use doctrine. Show all posts
Friday, August 19, 2011
Friday, August 12, 2011
Fair Use Fridays: Myths About the Copyright Act's Fair Use Provisions
Myths about the fair use doctrine, article here
Academics fighting back....
www.dunnington.com
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Academics fighting back....
www.dunnington.com
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Wednesday, July 20, 2011
Copyright Law: Interview With Register of Copyrights Maria Pallante
"If you're looking for certainty, fair use is not going to help you sleep at night."
- Maria Pallante, Register of Copyrights, on copyright law's fair use doctrine
Ars Technica has published an excellent interview with Maria Pallante, the new Register of Copyrights here.
If you want to know where copyright law is going, it is important to follow the activities of the Register of Copyrights whose activities and views carry extraordinary weight in shaping U.S. copyright policy. More on the office of the Register of Copyrights here.
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
- Maria Pallante, Register of Copyrights, on copyright law's fair use doctrine
Ars Technica has published an excellent interview with Maria Pallante, the new Register of Copyrights here.
If you want to know where copyright law is going, it is important to follow the activities of the Register of Copyrights whose activities and views carry extraordinary weight in shaping U.S. copyright policy. More on the office of the Register of Copyrights here.
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Friday, July 15, 2011
Fair Use Fridays: Copyright Professors To Academia: "Flex Your Fair Use Muscles!"
Fair Use and Fairness on Campus
Deborah R. Gerhardt
University of North Carolina (UNC) at Chapel Hill - School of Law
Madelyn F. Wessel
University of Virginia
North Carolina Journal of Law and Technology, Vol. 11, Spring 2010
UNC Legal Studies Research Paper No. 1594934
Conclusion below, full paper free download here
The educational community must assert and defend fair use if it is to retain some autonomy over academic content and preserve some equity in the delivery of its mission. Access to information is a theme resonating within legal and philosophical constructs of both free speech and equal protection in a society that considers
itself just. In a world where technology makes so much content available for educational use, the copyright laws that were originally conceived to promote education are instead often routinely applied to inhibit it. Unequal access to counsel and profound disparities in the content available on campus exacerbate the problem.
Fair use is the primary means to restore that balance. Despite the myths that abound, fair use jurisprudence is a dynamic, factbased, ever changing body of law and courts are more willing than one might expect to find fair use when equity demands it. Whether the issue is classroom access to research and scholarship or the
publication of a substantive scholarly critique, we think both copyright jurisprudence and equity will often support fair use. We have seen fair use muscles atrophy and flex and can vouch for the fact that the latter is far more empowering to the academic mission and far better aligned with the Founders’ understanding that
copyright is intrinsically entwined with public access.
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Deborah R. Gerhardt
University of North Carolina (UNC) at Chapel Hill - School of Law
Madelyn F. Wessel
University of Virginia
North Carolina Journal of Law and Technology, Vol. 11, Spring 2010
UNC Legal Studies Research Paper No. 1594934
Conclusion below, full paper free download here
The educational community must assert and defend fair use if it is to retain some autonomy over academic content and preserve some equity in the delivery of its mission. Access to information is a theme resonating within legal and philosophical constructs of both free speech and equal protection in a society that considers
itself just. In a world where technology makes so much content available for educational use, the copyright laws that were originally conceived to promote education are instead often routinely applied to inhibit it. Unequal access to counsel and profound disparities in the content available on campus exacerbate the problem.
Fair use is the primary means to restore that balance. Despite the myths that abound, fair use jurisprudence is a dynamic, factbased, ever changing body of law and courts are more willing than one might expect to find fair use when equity demands it. Whether the issue is classroom access to research and scholarship or the
publication of a substantive scholarly critique, we think both copyright jurisprudence and equity will often support fair use. We have seen fair use muscles atrophy and flex and can vouch for the fact that the latter is far more empowering to the academic mission and far better aligned with the Founders’ understanding that
copyright is intrinsically entwined with public access.
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Fair Use Fridays: Kutiman Mashes Jerusalem - Beautifully
More beautiful music and images here
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Electronic Frontier Foundation: Oppose Criminal Streaming Bill in Senate
The above YouTube video had over 500K views
The EFF is organizing a letter writing campaign to the US Senate - to use the letter tool, visit here
The EFF's take:
Oppose Congress' Criminal Streaming Bill
S. 978 is a reckless attempt to attack online streaming by focusing on the "unlawful public performance" area of copyright law. By increasing the criminal penalties for certain online public performances, the bill will impose a chilling effect around the posting and creation of online video. Moreover, it will hamper the pace of innovation as users, websites, and investors cope with the uncertainty of running afoul of one of the more vague sections of copyright law. Act now and tell your Senators to oppose this shortsighted bill!
Under certain conditions, an "unlawful public performance" of a copyrighted work is already a crime. But this bill targets online streaming in an effort to give the government more enforcement power to bear—particularly against websites that the entertainment industry believes to be threatening.
Techdirt reports on YouTube protests here
Text of the bill below:
112th CONGRESS
1st Session
S. 978
To amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.
--------------------------------------------------------------------------------
IN THE SENATE OF THE UNITED STATES
May 12, 2011
Ms. Klobuchar (for herself, Mr. Cornyn, and Mr. Coons) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
----------------------------------------------------------------------------
A BILL
To amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. Criminal infringement of a copyright.
(a) Amendments to section 2319 of title 18.—Section 2319 of title 18, United States Code, is amended—
(1) in subsection (b)—
(A) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and
(B) by inserting after paragraph (1) the following:
“(2) shall be imprisoned not more than 5 years, fined in the amount set forth in this title, or both, if—
“(A) the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works; and
“(B)(i) the total retail value of the performances, or the total economic value of such public performances to the infringer or to the copyright owner, would exceed $2,500; or
“(ii) the total fair market value of licenses to offer performances of those works would exceed $5,000;”; and
(2) in subsection (f), by striking paragraph (2) and inserting the following:
“(2) the terms ‘reproduction’, ‘distribution’, and ‘public performance’ refer to the exclusive rights of a copyright owner under clauses (1), (3), (4), and (6), respectively of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 122, of title 17;”.
(b) Amendment to section 506 of title 17.—Section 506(a) of title 17, United States Code, is amended—
(1) in paragraph (1)(C), by inserting “or public performance” after “distribution” the first place it appears; and
(2) in paragraph (3)—
(A) in subparagraph (A), by inserting “or public performance” after “unauthorized distribution”; and
(B) in subparagraph (B), by inserting “or public performance” after “distribution”.
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Tuesday, July 12, 2011
Fair Use: Response to YouTube's Copyright School - Copyright Law
Mike Madison's take on Madisonian.net here
More on YouTube copyright school here.
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Friday, June 3, 2011
Fair Use Fridays: Copying Is Not Theft, All Creativity Is Derivative .... Hmmm.....
Ouch! Are they really dancing with CD's?
Well done.
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Fair Use Fridays: Columbia Pictures Faking Copyright Infringements To Promote Girl With a Dragon Tattoo?
This YouTube video is made to appear as if it were created by a pirate cameraman inside a movie theater. Mashable believes that SONY/ Columbia Pictures has faked the copyright infringement as part of a viral marketing campaign. Mashable's take here.
So a copyright owner fakes an infringement of its own work to make the movie cool to kids who prefer to watch pirated content? Does it help the analysis if the movie is a about a young female hacker?
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Friday, May 6, 2011
Fair Use Doctrine: How To Download Files Using BitTorrent
Caution: accessing copyrighted files may constitute copyright infringement.
Plaintiffs are now pursuing BitTorrent swarms and may discover your IP address and personal information if you download or make your computer available to upload copyrighted works through BitTorrent.
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Monday, May 2, 2011
Copyright Troll Clobbered: Judge Finds Use of Entire News Article Fair Use
In Righthaven LLC v. Jama and Center for Intercultural Organizing, 2011 WL 1541613 (D. Nev. April 22, 2011), on a summary judgment motion, the court found use of an entire news article to be fair use. Righthaven is a notorious copyright troll. II. Legal Standard
Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996); Fed.R.Civ.P. 56(c). The moving party bears the burden of presenting authenticated evidence to demonstrate the absence of any genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see Orr v. Bank of America, 285 F.3d 764 (9th Cir.2002) (articulating the standard for authentication of evidence on a motion for summary judgment).
The court may “[a]fter giving notice and a reasonable time to respond ... (1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider summary judgment on its own after identifying for the parties material facts that may not genuinely be in dispute.” Fed.R.Civ.P. 56(f). Here, the court has invoked subdivision (f) and given the parties a reasonable time to respond to the order to show cause. Although the plaintiff has requested discovery, noting that the party against whom summary judgment is granted must be “on notice that she had to come forward with all of her evidence,” Celotex Corp., 477 U.S. at 326, the court finds that further discovery is unnecessary, as the court already possesses enough information to rule as a matter of law on the issue of fair use.
III. Fair Use Analysis
A plaintiff must satisfy two requirements to present a prima facie case of copyright infringement: (1) ownership of the allegedly infringed material, and (2) that the alleged infringers violated at least one exclusive right granted to copyright holders. 17 U.S.C. §§ 106, 501(a). However, even where a plaintiff has alleged a prima facie case of copyright infringement, the defendant may refute the claim if the defendant has engaged in a fair use of the material.
The fair use doctrine is an affirmative defense to a claim of infringement, which protects certain uses of a copyright. The court considers four factors to determine whether the use of a copyrighted work is fair: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107. The four factors should be considered in light of the purposes of copyright to promote the progress of science and useful arts and to serve the welfare of the public. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1163 (9th Cir.2007) (internal citations omitted).
“Fair use is a mixed question of law and fact. If there are no genuine issues of material fact, or if, even after resolving all issues in favor of the opposing party, a reasonable trier of fact can reach only one conclusion, a court may conclude as a matter of law whether the challenged use qualifies as a fair use of the copyrighted work.” Los Angeles News Serv. v. KCAL–TV Channel 9, 108 F.3d 1119, 1120 (9th Cir.1997) (citing Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1150 (9th Cir.1986) (quoting Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559 (1985))). Here, weighing each of the four use factors and resolving all issues in favor of plaintiff Righthaven, the court finds that a reasonable trier of fact could only reach one conclusion—that the alleged infringement qualifies as fair use.
Righthaven, LCC v. Jama L 1541613, 1 -2 (D.Nev.,2011)
In analyzing the first prong, the court compared the original use: news reporting with the allegedly infringing use: education, and found the use to be transformative based on these different purposes. The court found the use to be non-commercial.
Second, the court found the nature of the copyrighted work to be an "informational work" entitled to a lower level of copyright protection, a factor weighing heavily in favor of fair use.
Third, the work was used in its entirety, but the defendant did not delete plaintiff's copyright information. The court found this to favor neither party.
Fourth, the court found it to be a non-commercial use, and that the plaintiff thus had the burden of affirmatively showing a likelihood of market harm. Plaintiff failed to allege that a market exists.
Coloring the court's analysis is Righthaven's position as a licensee hired just for the purposes of suing. Although this decision does not spell it out, Righthaven is not a traditional newspaper. Thus the court drew a distinction in the fourth prong that might have turned out differently had the newspaper brought the suit.
Righthaven has attracted a lot of attention as a copyright troll. An informational site on Righthaven here.
Wikipedia on Righthaven here.
A site for Righthaven victims here.
EFF's activities to protect troll victims here.
Mike Masnick at Techdirt has the best ongoing coverage of everything Righthaven, some links below.
Righthaven Demands Servers Of Website Sued, Even After Court Rejects Demands For Domain
Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Another Loss For Righthaven: Court Explains That Its Demand For Domain Names Is Silly
Righthaven Tells Judge Handling All Its Colorado Cases That He's Wrong
Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996); Fed.R.Civ.P. 56(c). The moving party bears the burden of presenting authenticated evidence to demonstrate the absence of any genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see Orr v. Bank of America, 285 F.3d 764 (9th Cir.2002) (articulating the standard for authentication of evidence on a motion for summary judgment).
The court may “[a]fter giving notice and a reasonable time to respond ... (1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider summary judgment on its own after identifying for the parties material facts that may not genuinely be in dispute.” Fed.R.Civ.P. 56(f). Here, the court has invoked subdivision (f) and given the parties a reasonable time to respond to the order to show cause. Although the plaintiff has requested discovery, noting that the party against whom summary judgment is granted must be “on notice that she had to come forward with all of her evidence,” Celotex Corp., 477 U.S. at 326, the court finds that further discovery is unnecessary, as the court already possesses enough information to rule as a matter of law on the issue of fair use.
III. Fair Use Analysis
A plaintiff must satisfy two requirements to present a prima facie case of copyright infringement: (1) ownership of the allegedly infringed material, and (2) that the alleged infringers violated at least one exclusive right granted to copyright holders. 17 U.S.C. §§ 106, 501(a). However, even where a plaintiff has alleged a prima facie case of copyright infringement, the defendant may refute the claim if the defendant has engaged in a fair use of the material.
The fair use doctrine is an affirmative defense to a claim of infringement, which protects certain uses of a copyright. The court considers four factors to determine whether the use of a copyrighted work is fair: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107. The four factors should be considered in light of the purposes of copyright to promote the progress of science and useful arts and to serve the welfare of the public. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1163 (9th Cir.2007) (internal citations omitted).
“Fair use is a mixed question of law and fact. If there are no genuine issues of material fact, or if, even after resolving all issues in favor of the opposing party, a reasonable trier of fact can reach only one conclusion, a court may conclude as a matter of law whether the challenged use qualifies as a fair use of the copyrighted work.” Los Angeles News Serv. v. KCAL–TV Channel 9, 108 F.3d 1119, 1120 (9th Cir.1997) (citing Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1150 (9th Cir.1986) (quoting Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559 (1985))). Here, weighing each of the four use factors and resolving all issues in favor of plaintiff Righthaven, the court finds that a reasonable trier of fact could only reach one conclusion—that the alleged infringement qualifies as fair use.
Righthaven, LCC v. Jama L 1541613, 1 -2 (D.Nev.,2011)
In analyzing the first prong, the court compared the original use: news reporting with the allegedly infringing use: education, and found the use to be transformative based on these different purposes. The court found the use to be non-commercial.
Second, the court found the nature of the copyrighted work to be an "informational work" entitled to a lower level of copyright protection, a factor weighing heavily in favor of fair use.
Third, the work was used in its entirety, but the defendant did not delete plaintiff's copyright information. The court found this to favor neither party.
Fourth, the court found it to be a non-commercial use, and that the plaintiff thus had the burden of affirmatively showing a likelihood of market harm. Plaintiff failed to allege that a market exists.
Coloring the court's analysis is Righthaven's position as a licensee hired just for the purposes of suing. Although this decision does not spell it out, Righthaven is not a traditional newspaper. Thus the court drew a distinction in the fourth prong that might have turned out differently had the newspaper brought the suit.
Righthaven has attracted a lot of attention as a copyright troll. An informational site on Righthaven here.
Wikipedia on Righthaven here.
A site for Righthaven victims here.
EFF's activities to protect troll victims here.
Mike Masnick at Techdirt has the best ongoing coverage of everything Righthaven, some links below.
Righthaven Demands Servers Of Website Sued, Even After Court Rejects Demands For Domain
Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Another Loss For Righthaven: Court Explains That Its Demand For Domain Names Is Silly
Righthaven Tells Judge Handling All Its Colorado Cases That He's Wrong
Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Friday, April 22, 2011
Fair Use Fridays: Fair Use Is A "Bit of a Loophole For Students and Teachers"
Another horrifically bad and misleading copyright video aimed at children. It doesn't mention the US Constitution. It doesn't reference the First Amendment. It refers to fair use as "a bit of a loophole for students and teachers".
This one gets a D-. It at least mentions the public domain, a concept left out of a number of the other copyright educational videos.
More botched fair use education by YouTube here.
Even scarier here.
Some hope from a copyright librarian here.
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Fair Use Fridays: Kinect Hacks - From Forbidden To Encouraged By Microsoft
Software manufacturers usually try to block consumers from modifying or improving their products. This is anticompetitive conduct. Microsoft started out by first blocking hackers on its new Kinect 3d camera, and now it is encouraging them. Story and more hacks on Mashable here. When software encryption stands in the way of innovation, progress favors hackers who promote product improvement and adoption.
It is distressing when copyright owners abuse the monopoly granted by copyright to discourage progress and it is good to see Microsoft embracing change. Copyright is combined with contract law to defeat the first sale doctrine in an anticompetitive manner. The Kinect technology has so many potential applications, particularly to assist the disabled.
Reverse engineering is addressed by the Digital Millenium Copyright Act 17 USC 1201(f). A good summary of the state of the law from EFF here.
Scary video from University of Southern California Institute of Creative Technologies showing how the Kinect hack will cure childhood obesity and diabetes by exercising kids while they are glued to a television screen for six hours a day.
More on Primesense cameras here.
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Thursday, April 21, 2011
Professor Weird Al Teaches Lady Gaga The First Amendment
Courtesy Boing Boing, Lady Gaga refused to let Weird Al make a parody of her song with proceeds to charity, so he claimed fair use and released it anyway.
Maybe Weird Al can get hired at YouTube's Copyright School to put the First Amendment into the curriculum?
More on parody here. Boing boing's analysis here.
www.dunnington.com
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Friday, April 15, 2011
Fair Use Fridays: Publishers Sue Universities Over "E-Reserves"
From Ars Technica, a fair use kerfluffle here.
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Fair Use Fridays: YouTube Flunks Copyright School
According to Zeropaid's piece here, accused copyright infringers on YouTube will have to attend YouTube Copyright School, which involves watching a video and taking a quiz.
Why doesn't YouTube's video mention the public domain? Watch the video and you will see a child-like figure being smashed with a gavel over the head for purported copyright infringement. It is disturbing to see that YouTube is indoctrinating children into fear of quoting materials by authors living and dead by showing images of corporal punishment meted out by judges.
According to the video, if you are not sure what fair use is, you must consult a copyright lawyer. Of course all children have copyright lawyers, so that is a workable solution.
YouTube's video doesn't mention copyright law's grounding in the US Constitution, nor the purpose of copyright law.
The US Constitution's Copyright Clause permits the US Congress:
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
YouTube's video fails my copyright school.
More on the fair use doctrine.
More on public domain.
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Fair Use Fridays: Kandinsky and Copyright: The Murder of American Culture - A Copyright PSA
An unintentionally terrifying Copyright PSA. Zombified children, unintentionally hilarious "fair use" mistakes - I thought it was a spoof, but... this video really shows how misunderstood the fair use doctrine is... by someone purporting to teach it.
Wassily Kandinsky, Composition VII 1913 thanks Wikimedia
but using the zombified kids is really Jonestown Massacre. Pass the KoolAid.
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Friday, April 8, 2011
Fair Use Fridays: What do you do with a drunken sailor?
What do you do with a drunken sailor? Johnny Depp stars...
Trance version...
A gamer's Salute to Piracy
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Second Circuit: Fair Use Doctrine Protects Submission of Entire Copyrighted Work In Judicial Proceeding
In Hollander v. Steinberg, (10-1140 cv April 5, 2011), the Second Circuit applied the fair use doctrine, 17 USC 107 to filings in judicial proceedings. An author claimed that his essays were unpublished and that his adversary filing them in their entirety in a judicial proceeding was copyright infringement.
The decision is a "Summary Order" which under Second Circuit rules is not supposed to have any precedential value, but which may now be cited under Federal Rule of Appellate Procedure 32.1 and the Second Circuit's Local Rule 32.1.1.
A "Summary Order" is proper when the panel believes that a decison should have "no jurisprudential effect". Issuance of summary orders is controversial, since our system of case law is based on precedent, not on the subjective belief of judges that their opinions ought to be ignored.
From the New York City Bar, full 1998 report criticizing a prior rule barring even citations to unpublished opinions that led to the currrent rule which permits parties to at least cite Summary Orders here:
The Federal Courts Committee believes that this complete prohibition on the citation of summary orders does not serve the interests of justice or judicial economy. The pervasive use of summary orders has created a vast body of unpublished decisions which are often pertinent to issues arising before the Court, but which cannot be brought to the Court's attention under the current rule. The Committee is aware of cases where the Court has previously ruled by summary order on the precise contention being made in a pending case, on indistinguishable facts, and of other cases where a summary order may be the only authority on point.
Of particular note in Hollander is that a copyright owner's market for a work would not be destroyed by publication of the work on the court's PACER system because retrieving it from PACER is cumbersome.
Finally, the fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work,” 17 U.S.C. § 107(4), clearly favors Steinberg. With this factor, “[t]he focus . . . is on whether defendants are offering a market substitute for the original.” NXIVM Corp. v. Ross Inst., 364 F.3d 471, 481 (2d Cir. 2004). “[O]ur concern is not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work.” Id. Should Den Hollander offer his essays for sale, it is highly unlikely that potentially interested readers would even be aware of the essays’ presence in a court file, let alone choose to acquire copies by the cumbersome methods of visiting a courthouse to make copies or using PACER. And in any event, Den Hollander has offered no evidence that Steinberg “usurped the market” for the essays by submitting them as exhibits in judicial proceedings.
So we have in Hollander a fair use decision that the Second Circuit has decided should be ignored.
Decision below:
Hollander v Steinberg
More on the fair use doctrine here.
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
The decision is a "Summary Order" which under Second Circuit rules is not supposed to have any precedential value, but which may now be cited under Federal Rule of Appellate Procedure 32.1 and the Second Circuit's Local Rule 32.1.1.
A "Summary Order" is proper when the panel believes that a decison should have "no jurisprudential effect". Issuance of summary orders is controversial, since our system of case law is based on precedent, not on the subjective belief of judges that their opinions ought to be ignored.
From the New York City Bar, full 1998 report criticizing a prior rule barring even citations to unpublished opinions that led to the currrent rule which permits parties to at least cite Summary Orders here:
The Federal Courts Committee believes that this complete prohibition on the citation of summary orders does not serve the interests of justice or judicial economy. The pervasive use of summary orders has created a vast body of unpublished decisions which are often pertinent to issues arising before the Court, but which cannot be brought to the Court's attention under the current rule. The Committee is aware of cases where the Court has previously ruled by summary order on the precise contention being made in a pending case, on indistinguishable facts, and of other cases where a summary order may be the only authority on point.
Of particular note in Hollander is that a copyright owner's market for a work would not be destroyed by publication of the work on the court's PACER system because retrieving it from PACER is cumbersome.
Finally, the fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work,” 17 U.S.C. § 107(4), clearly favors Steinberg. With this factor, “[t]he focus . . . is on whether defendants are offering a market substitute for the original.” NXIVM Corp. v. Ross Inst., 364 F.3d 471, 481 (2d Cir. 2004). “[O]ur concern is not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work.” Id. Should Den Hollander offer his essays for sale, it is highly unlikely that potentially interested readers would even be aware of the essays’ presence in a court file, let alone choose to acquire copies by the cumbersome methods of visiting a courthouse to make copies or using PACER. And in any event, Den Hollander has offered no evidence that Steinberg “usurped the market” for the essays by submitting them as exhibits in judicial proceedings.
So we have in Hollander a fair use decision that the Second Circuit has decided should be ignored.
Decision below:
Hollander v Steinberg
More on the fair use doctrine here.
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Fair Use Fridays: "Most Copyright Holders Have Never Heard of Fair Use"
From "Clip Show - A Practical Guide to Fair Use"
When Copyright Holders Attack
After the film has been released, expect to get calls from copyright holders upset about your use of their footage. Most copyright holders have never heard of Fair Use, and you should allow some money in your budget to have your attorney call and talk through the evidence you have. If you have been responsible in your Fair Use decisions, most complaints will only require one phone call from your attorney to make them go away. We encountered a handful of copyright holders from some very large corporations who were not pleased that their clips had been used in our film, but we were well prepared by our attorneys and had no problem avoiding any legal claims.
Full story from the maker of Bigger Stronger Faster here. Watch the film here.
http://www.dunnington.com/rdowd_bio.html
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Subscribe to:
Posts (Atom)