[PLUG-TALK] Fair Use, etc.

Dylan Reinhardt dylan at dylanreinhardt.com
Wed Mar 20 18:10:53 UTC 2002


Jeme,

I made the claim (documented it, even) that Napster's argument before the
9th Circut was based on Sony v. Universal and didn't appear to feature the
"all copying is OK" argument you claimed it did.  Your answer was that this
was *just* an injunction hearing, and thus the argument focused on a narrower
set of issues.  In this, I believe you are correct.  Later, when refuting
my claim that the broader argument had never been fully tested in court,
you cited the circut court's "ruling," saying that "the 9th circuit backs
me up."

You can't have it both ways.

Naptster won a hearing and lost a hearing.  To my knowledge, they never
fully aired their arguments in court nor obtained a full and binding opinion
that would have any precedent-setting effect.  Please provide a citation
if you're aware of such a decision... until then, I think it's fair to say
that Napster's argument, while interesting, has no relevance.

Leaving that detour behind (I hope), let's take a look at what you said
was your major point: "copyright law cannot practically and therefore does
not cover non-commercial activity between individuals."

If I'm parsing that correctly, you seem to be arguing:

1. Enforcement of copyright law is not practical when it comes to punishing
the actions of individuals.

2. What copying individuals do between themselves is not subject to copyright
law.

I would be interested to see an example of where the practicality of enforcement
has negated a law.  Indeed, most (I'd say virtually *all*) personl conduct
laws fall into the category of "impractical to enforce."  Why do we have
laws
against speeding, slander, fraud, or any number of other forms of conduct?
 It is highly impractical to imagine that anything but the slimmest percentage
of acts of speeding draw citations.  Laws are laws and enforcement is another
issue entirely.  Frankly, I wish that the enforcability of laws *were* more
of a factor, but I'm having a tough time seeing where it currently figures
in the equation at all.

Which brings us to the claim that what individuals do among themselves is
not covered by copyright law.  First, I'd invite you to substantiate that
claim, perhaps with some analysis of the "common law fair use" you alluded
to elsewhere.

In the meantime, I have one question: If copyright law doesn't apply to
individuals, who *does* it apply to?  Is there some other kind of legal
entity running around that I'm unaware of?  You'd be hard pressed to show
that this law only applies to business, but I'd love to see you give it
a try.

But then I get confused when you claim that "every revision of the Copyright
Act since about 1840 is unconstitutional."  In effect, it would seem that
you're prepared to simply disregard 160 years of legislation and jurisprudence.
 Sounds a bit like wishful thinking to me.

But if we're going to delve into Constitutional arguments, what do you do
with Art. I, Sec. 8: "The Congress shall have Power... 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."

Congress is specifically empowered to pass laws that grant exclusive rights
for a limited time.  That seems like a pretty definitive statement to me.

But the final arbiter of what is and isn't Constitutional is the Supreme
Court.  Let's take a look at what *they* have to say on the subject.

First of all, the four tests for Fair Use *are* tests.  You can see them
being applied in Stewart v. Abend (1990) and elsewhere.  Since we're engaging
in scholarship here, I'll make an unauthorized copy of the relevant paragraph
from Stewart.   :-)

"Petitioners' unauthorized use of Woolrich's story in their film does not
constitute a noninfringing "fair use." The film does not fall into any of
the categories of fair use enumerated in 17 U.S.C. 107 (1988 ed.); e. g.,
criticism, comment, news reporting, teaching, scholarship, or research.
Nor does it meet any of the nonexclusive criteria that 107 requires a court
to consider. First, since petitioners received $12 million from the film's
re-release during the renewal term, their use was commercial rather than
educational. Second, the nature of the copyrighted work is fictional and
creative rather than factual. Third, the story was a substantial portion
of the film, which expressly used its unique setting, characters, plot,
and d sequence of events. Fourth, and most important, the record supports
the conclusion that re-release of the film impinged on Abend's ability to
market new versions of the story."   From FindLaw:  http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/471/539.html

While we're on the topic of Supreme Court decisions, I'd be very curious
to see what you would do with Harper & Row v. Nation Enterprises.  In this
case, the Supreme Court found that the Nation had stepped outside the bounds
of Fair Use when they publised a 2,250-word article that made use of "at
least 300 to 400 words" of an unpublished manuscript by Gerald Ford.  The
Nation's story was timed to "scoop" the publication of this same manuscript
in Time.  Time ended up not running the manuscript and a book contract fell
through as well.

Here's the paragraph where they ran the four tests:

"Taking into account the four factors enumerated in 107 as especially relevant
in determining fair use, leads to the conclusion that the use in question
here was not fair. (i) The fact that news reporting was the general purpose
of The Nation's use is simply one factor. While The Nation had every right
to be the first to publish the information, it went beyond simply reporting
uncopyrightable information and actively sought to exploit the headline
value of its infringement, making a "news event" out of its unauthorized
first publication. The fact that the publication was commercial as opposed
to nonprofit is a separate factor tending to weigh against a finding of
fair use. Fair use presupposes good faith. The Nation's unauthorized use
of the undisseminated manuscript had not merely the incidental effect but
the intended purpose of supplanting the copyright holders' commercially
valuable right of first publication. (ii) While there may be a greater need
to disseminate works of fact than works of fiction, The Nation's taking
of copyrighted expression exceeded that necessary to disseminate the facts
and infringed the copyright holders' interests in confidentiality and creative
control over the first public appearance of the work. (iii) Although the
verbatim quotes [471 U.S. 539, 541]   in question were an insubstantial
portion of the Ford manuscript, they qualitatively embodied Mr. Ford's distinctive
expression and played a key role in the infringing article. (iv) As to the
effect of The Nation's article on the market for the copyrighted work, Time's
cancellation of its projected article and its refusal to pay $12,500 were
the direct effect of the infringing publication. Once a copyright holder
establishes a causal connection between the infringement and loss of revenue,
the burden shifts to the infringer to show that the damage would have occurred
had there been no taking of copyrighted expression. Petitioners established
a prima facie case of actual damage that respondents failed to rebut. More
important, to negate a claim of fair use it need only be shown that if the
challenged use should become widespread, it would adversely affect the potential
market for the copyrighted work. Here, The Nation's liberal use of verbatim
excerpts posed substantial potential for damage to the marketability of
first serialization rights in the copyrighted work."  Also from FindLaw:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/471/539.html

If you're aware of proof of your legal theories that are more convincing,
more recent, or more relevant than what I've provided, please do share your
citations.

Until then, I would strongly suggest that making unauthorized copies of
an entire copyrighted work is not only wrong, but illegal as well.  You
can make the case that authors *may* benefit from copying, but a meaningful
interpretation of rights would suggest that it is right *holders* who are
entitled to decide whether and how to benefit from their works.

Looking forward to your next posting.

Dylan









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