Re: [Videolib] Fair Use Cases

From: M. Claire Stewart <claire-stewart@northwestern.edu>
Date: Thu Jul 30 2009 - 11:03:01 PDT

I know I've shared this cite on this list before
but Barton Beebe (currently visiting law prof at
Stanford) published a law review article in 2008
about his empirical study of fair use cases.
<http://www.bartonbeebe.com/> His article and his
data set are on his web site. It very clearly
shows that there are all kinds of approaches to a
fair use evaluation, some strictly
factor-by-factor, others that favor some factors
over others, and more that have a complex
intra-factor or ex-factor interpretation
(so-called "transformative use" evaluations
included). I highly recommend it for those who
would like to know what really goes on when these
cases reach a judge.

The argument that use of THIS kind of work in
entirety might be ok but use of THAT kind is not,
erroneously conflates two separate fair use
factors. Amount is one factor. Nature of the work
is a different factor.

I agree with Sarah's point that Kinko's doesn't
fully apply here because the judge was very clear
in remarking that the fact that the activity was
conducted by a commercial entity had a
significant impact on the ruling. Quoting from
the decision: "The use of the Kinko's packets, in
the hands of the students, was no doubt
educational. However, the use in the hands of
Kinko's employees is commercial. Kinko's claims
that its copying was educational and, therefore,
qualifies as a fair use. Kinko's fails to
persuade us of this distinction. "
<http://fairuse.stanford.edu/primary_materials/cases/c758FSupp1522.html>
Remember, also, that in most cases, libraries
have purchased or licensed the works from which
they make reserve copies, while commercial copy
shops have not. This will make a difference in a
market effect (factor four) evaluation.

It is also not safe yet to point to the GSU case,
because that is still unwinding in the courts and
there has been neither settlement nor final
ruling (unless I've missed something that's
happened since ALA Annual); GSU has adjusted
their policy and succeeded in limiting discovery
on their behavior to events taking place after
the implementation of the new policy. This is not
a definitive ruling about fair use. The most that
can be said about it is at this point is that
they were pressured into adopting a more
restrictive policy. There are many, undoubtedly
very complex, reasons why they might have chosen
this path. It does not mean that they would not
have prevailed on a fair use argument.

There has never been a case on this specific
activity. We could speculate endlessly about what
might happen based on what's happened with
previous cases, but as Beebe's article, and David
Nimmer's earlier Fairest of the Fair article,
have both shown, it's very difficult to draw any
sort of definitive interpretation based on what's
happened in the past.

We have to keep in mind what we're all about in
libraries. This is not distribution of films via
YouTube for all the world to see and pirate and
redistribute further. This is very painstaking
development of a service plan that extends normal
and very legitimate uses of video in support of
teaching into an electronic environment, with
controls in place to restrict access. It is not
adopting a pay-per-use plan nor a
license-instead-of-purchase plan which may be
favored as the future of distribution for the
content community. The "Economics of Independent
Film and Video Distribution in the Digital Age"
report
<http://media.tribecafilminstitute.org/documents/The+Economics+of+Independent+Film+and+Video+Distribution+in+the+Digital+Age.pdf>
and the other documents collected at the Digital
Video in Libraries blog
<http://mrcstream.wordpress.com/> are very
illuminating in this respect.

Claire

>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 1Ž4 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.

-- 
____________________________________________________
M. Claire Stewart
Head, Digital Collections
Northwestern University Library
(847) 467-1437
claire-stewart@northwestern.edu
http://hdl.handle.net/2166/claire
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 11:04:16 2009

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