[PLUG-TALK] Revolution OS, Napster, and Fair Use (part 2)

Dylan Reinhardt dylan at dylanreinhardt.com
Wed Mar 20 09:37:42 UTC 2002


OK... so the big issue: is all non-commercial copying covered under Fair
Use?  Reading the Fair Use section of the CFR, it is apparent that Fair
Use is determined by four criteria:

1. The nature of the usage (for profit or non-profit)
2. The nature of the work (whatever that means)
3. The amount of work used (percentage copied)
4. The financial impact copying has on the value of the original

These are my summations, the actual wording is here: http://www4.law.cornell.edu/uscode/17/107.html

Deriving no commercial gain from making the copy is a clear requirement.
 But is that, alone, sufficient to satisfy Fair Use?  You appear to believe
it is and I think it's clear that it isn't... so here we go.

Let's take the hypothetical example of a small, independent film company
that makes a stirring documentary about geek ethnography.  Let's further
stipulate that the film doesn't suck: geeks want to see it and a small,
premium cable channel specializing in indie films wants to show it.  With
me so far?

What financial value does this film have?  To its makers, it has a value
roughly equal to the number of tickets they might sell to it plus rebroadcast
fees minus distribution costs.  To the small cable channel that buys the
right to broadcast it, the movie has two kinds of financial value: it may
serve as an incentive for non-subscribing geeks to become subscribers.
It may also help retain existing geek customers who were about to cancel
their subsciption and roll that dough into the new Star Trek Channel.  The
theaters who book this film also have expectations of benefitting from showing
it.

So the film has financial value to several parties, some of whom are actually
responsible for the film's existence.  Making unlicensed copies causes harm
to those expectations, and thus to the real value of the film.

Copies of this film are also likely to comprise 100% of the original material.
 If one were simply distributing 10-minute "teasers" for the film, you could
easily make the case that such copying actually *increases* the value of
the film itself... or in any case, certainly doesn't diminish it.  But distributing
copies of a film in its entirety gives away what would otherwise be for
sale.

Which brings us back to test #1: the nonprofit, educational, scholarship,
or research value of making the copy.  Here, things get a bit murky.  It's
clear that when a school makes a copy for classroom use, that's education.
 But is "education" so broad a concept that simple *curiosity* qualifies?
 I'd really like to see what's in the film, but does that automatically
qualify my desire as scholarship?  If I'm curious what you have stored on
your hard drive, should I just hack into your computer and make myself a
copy of your work?  I'm certain it would be educational.  Remember, *unpublished*
works are covered by the same standards as published ones.

I would argue that watching a movie to see what's in it is the kind of activity
that would normally be associated with the movie's commercial release.
As such, it's tough to make the case that viewing it in a theater is commerce,
but viewing an unauthorized copy is education.  Particularly given the fact,
in this case, that the filmmakers are making copies of their film available
for sale in VHS and DVD formats (http://www.revolution-os.com/page1.html).

Stanford has a great Fair Use resource: http://fairuse.stanford.edu   I
haven't read even half of it yet, but it looks to contain enough source
material to take us into the wee hours.

Looking forward to your next round of thoughts on all this...

Dylan








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