Re: [Videolib] Fair Use Cases

From: Susan Albrecht <albrechs@wabash.edu>
Date: Thu Jul 30 2009 - 09:42:17 PDT

No, I understand what you're saying, and I understand the distinction
isn't there in terms of protection.

What I'm saying is that, when people are talking about "portion" vs.
"full," it strikes me as different to compare AN image to an entire
film, you know? It's much less *possible* to use a portion of one
image than it is to use a portion of a film, so a court saying "this
was okay" when referring to the use of one whole image doesn't seem
to necessarily equate to a full film. (Again, getting back to what
mb's friend was saying in considering first factor in relation to
third factor.)

I'm suspect I'm not stating this very well. It's just that, here on
this list, we tend to be talking about what's fair in terms of the
portion of a FILM, and when you asked for examples of case law where
the use of the full work was deemed fair, to then have the "results
list" contain items such as an image or set of images, but NOT a case
which had film at its core, doesn't seem to do a whole lot to clear
up this issue of "Is it/Isn't it ever fair to use the complete work?
And have the courts ever said so?"

Susan

At 12:25 PM 7/30/2009, you wrote:
>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
><<mailto:albrechs@wabash.edu>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
><mailto:albrechs@wabash.edu>albrechs@wabash.edu
>
>*********************************************************************************
>"If you choose not to decide, you still have made a choice."--Neil Peart
>*********************************************************************************
>
>
>
>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.

Susan Albrecht
Acquisitions Manager
Wabash College Lilly Library
Crawfordsville, IN
x6216
albrechs@wabash.edu

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

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 09:46:46 2009

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