Re: [Videolib] Fair Use Cases

From: Brewer, Michael <brewerm@u.library.arizona.edu>
Date: Thu Jul 30 2009 - 09:43:00 PDT

Jessica,

All works are not the same when it comes to fair use. The potential effect on the market or value of a film may be much greater than that of a poem or article. The purpose of the article may be to inform other specialists about new knowledge or information, not make money. The purpose of a poem may be sharing self expression with others or making a political statement, not generating revenue. The values of these works may not be compromised (and may actually be boosted) by fair uses, while a use of an entire film may (or may not) have a more serious effect on the value or market of that work. Film is also not homogenous. An out of print work certainly is different than a current blockbuster. Fair uses in a scholarly context could actually create a resurgent market for that film. I think making blanket statements about what is or isn't fair goes very much against what the law says.

mb

Michael Brewer
Team Leader for Undergraduate Services
University of Arizona Library
brewerm@u.library.arizona.edu<mailto:brewerm@u.library.arizona.edu>

From: videolib-bounces@lists.berkeley.edu [mailto:videolib-bounces@lists.berkeley.edu] On Behalf Of Jessica Rosner
Sent: Thursday, July 30, 2009 9:26 AM
To: videolib@lists.berkeley.edu
Subject: Re: [Videolib] Fair Use Cases

Copyright is copyright though. Legally there is no difference in protecting a book, a journal article or a film, just that film is sexier and more widely
violated in the general public than written words. There are some special rules re media, preservation , etc but none that apply to the situation we seem to
be arguing ( streaming, copying for general classroom use etc).

To be fair you would think the morons at the studio's would take action the way publishers have but they seem to be too busy preventing teachers from using
film CLIPS to notice what it going on but that does not change the law.
On Thu, Jul 30, 2009 at 12:10 PM, Susan Albrecht <albrechs@wabash.edu<mailto:albrechs@wabash.edu>> wrote:
Kind of disappointing that none of the cases in the list appears to
pertain directly to film, though. Bah.

Susan

At 11:05 AM 7/30/2009, you wrote:
>All,
>
>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).
>
>mb
Susan Albrecht
Acquisitions Manager
Wabash College Lilly Library
Crawfordsville, IN
x6216
albrechs@wabash.edu<mailto:albrechs@wabash.edu>

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"If you choose not to decide, you still have made a choice."--Neil Peart
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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.

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 09:43:35 2009

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