[Videolib] Fair Use Cases

From: Brewer, Michael <brewerm@u.library.arizona.edu>
Date: Thu Jul 30 2009 - 08:05:03 PDT


I asked several well-respected copyright scholars about the question of "portion" in the law. They all agreed that this has not been understood in case law as a limit what can be justified as a fair use and provided a whole list of cases where entire uses were upheld as fair. One of the scholars is currently working on a chapter for a book that details all the fair use cases in the past 10 years. None of these cases fit the entire book or entire film argument that often comes up when discussions of fair use occur on this list and it is not my purpose to put these forward as support for such uses. I am simply arguing against reductionist approaches to fair use.

Here is his response:

here's a few cases that fair resulted and amount was 100%

Courts recently have stressed that if the purpose (first factor) is good, the relationship to the third ("how much" factor), is not how much but have you taken only as much as is necessary to effect or accomplish that "good" purpose, in a case like the TurnItIn database (plagiarism detection) in order for the database to be effective and accomplish that good purpose of plagiarism detection, 100% of each student paper is needed, courts tend then to conclude that this factor given the circumstances is of little help, neutral, etc.

1. Nunez v. Caribbean International News Corp., 235 F.3d 18 (1st Cir. 2000) (use of publicity head shot in a news story fair use).

2. Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) (minimized copies of Internet photographs in image index website fair use).

3. A.V. v. iParadigms, Ltd., 562 F.3d 630 (4th Cir. 2009) (use of student papers in plagiarism detection database fair use).

4. Field v. Google, Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006) (Google, Inc. caching of images fair use).

5. Perfect 10 v. Google, Inc., 487 F.3d 701 (9th Cir. 2007) (Google, Inc. cache of images fair use).

6. Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) (home recording (time-shifting) of broadcast television programs including commercials to watch at a later time fair use).

7. Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 832 (Fed Cir. 1992) (reverse engineering (copying) of computer program as intermediate step to extracting unprotected elements can be a fair use).

8. Evolution, Inc. v. SunTrust Bank, 342 F. Supp. 2d 943 (D. Kan. 2004) (de-compilation of software in order to extract out unprotected elements fair use).

9. Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992) (de-compilation of software program to extract unprotected elements fair use).

10.Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000), cert. denied 531 U.S. 871 (2000) (copying computer code to extract unprotected elements fair use).


Michael Brewer
Team Leader for Undergraduate Services
University of Arizona Library

VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors.
Received on Thu Jul 30 08:05:28 2009

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