Re: [Videolib] Fair Use Cases

From: Jessica Rosner <maddux2014@gmail.com>
Date: Thu Jul 30 2009 - 10:33:53 PDT

Actually Kinko's got
bitch slapped on EVERY element of " Fair Use'. As part of the ruling
it said they had CLEARLY violated the guidelines on
proportionality ,
in that they were reproducing whole chunks of books & articles . Had the
ruling involved only the idea that Kinko's was a commercial operation
schools would have ( openly) set up their own "non profit" copy centers to
make the same course paks. I don't doubt some do but not openly or they too
 would get sued. It is a matter of degree of course but just making copies
of articles and large sections of copyrighted works for a student to use in
class is just as illegal if school does it themselves .

I agree with you re Georgia State but not only did the school wimp out
and back down from its claim that its putting whole articles, chapters
on line for access by students was "Fair Use" it also is using
"Sovereign Immunity" ( as a state school) to both avoid paying
damages and avoid the plaintiffs ( the publishers)
from " discovery" that would allow them to learn how much illegal stuff they
HAD put up. The case is not yet fully
resolved but the publishers are unlikely to get damages because it is
a state school.

On Thu, Jul 30, 2009 at 1:06 PM, Sarah McCleskey <
Sarah.E.McCleskey@hofstra.edu> wrote:

> Kinko's and Princeton UP vs MDS made completely clear that there was no
> right to reproduce an entire work for educational/teaching use BY A
> COMMERCIAL FOR PROFIT COPY SHOP.
>
> GSU is the first for a college or university. I think AAP did try to
> sue SDSU about 5 years ago but SDSU claimed sovereign immunity and it
> went away. But they probably cleaned up their act, as GSU is now doing
> (while at the same time claiming sovereign immunity, fair use, unclean
> hand <heh> and a bunch of other defenses).
>
> I'm actually kind of disappointed GSU is cleaning up their act, because
> I wanted this to go to trial so that we would have a better definition
> of fair use of printed materials in the academic environment.
>
> Sarah
>
> >>> Jessica Rosner <maddux2014@gmail.com> 7/30/2009 12:20 PM >>>
> This is a straw man. If "fair use" were intended to allow you to make
> copies
> of whole book, film, article for teaching students that would have
> been
> established long ago. Exactly what was the Kinko's case ? Did it not
> make
> completely clear that there was NO right to reproduce an entire work
> even
> for "educational / teaching use" .
> Did the current situation at Georgia State not do the same ?
> Every time I think we are agreeing that no
> it is not "Fair Use" to stream , copy etc an entire film ( or book
> etc) you come back with the " well maybe it is but
> no one every tried it" thing. They have , they lost.
>
> > Yes, of course. The amount is obviously important, but it must be
> (and
> > has been) considered in concert with the purpose. I can’t very
> well have my
> > students analyze and write about a ¼ of a painting or a poem, so my
> purpose
> > requires using the entire work. Of course you’d also have to
> balance that
> > against the effect on the value of the work or it’s market and the
> nature of
> > the work.
> >
> >
> >
> > mb
> >
> >
> >
> > Michael Brewer
> >
> > Team Leader for Undergraduate Services
> >
> > University of Arizona Library
> >
> > 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 8:46 AM
> > *To:* videolib@lists.berkeley.edu
> > *Subject:* Re: [Videolib] Fair Use Cases
> >
> >
> >
> > Ok you may not believe this but I agree. I don't think there is some
> magic
> > number but I freak out at the idea that it could EVER be used as a
> defense
> > for
> >
> > streaming an entire feature film ( We can argue TEACH act separately
> ).
> > However I am a bit confused to the degree that the portion someone
> has used
> > has in fact come up often in case law so it is not like it has never
> been an
> > issue just that there is no specific amount.
> >
> > On Thu, Jul 30, 2009 at 11:05 AM, Brewer, Michael <
> > brewerm@u.library.arizona.edu> 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
> >
> >
> >
> > Michael Brewer
> >
> > Team Leader for Undergraduate Services
> >
> > University of Arizona Library
> >
> > brewerm@u.library.arizona.edu
> >
> >
> >
> >
> > 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.
> >
> >
>
> 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 10:34:12 2009

This archive was generated by hypermail 2.1.8 : Tue Oct 20 2009 - 15:15:17 PDT