Copyright
Basics by Terry Carroll
http://www.totse.com/en/law/justice_for_all/claw2.html
NB. Link not valid as of 19/10/2009. Article as originally posted 22/12/2008. Theo Janssen
2.1)
What is a copyright?
2.2)
What is "public domain?"
2.3)
I just wrote a great program/novel/song/whatever. How can I get a copyright on
it?
2.4)
How long does a copyright last? Does it need to be renewed?
2.5)
What advantages are there to registering my work with the Copyright Office?
2.6)
How can I register a copyright with the U.S. Copyright Office?
2.7)
What advantages are there to including a copyright notice on my work?
2.8)
Can I ever use a copyrighted work without permission of the copyright holder,
or "What is 'fair use?'"
2.9)
Fair use - the legal basis of the doctrine.
2.10)
[reserved.]
2.1)
What is a copyright?
A
copyright is a right of intellectual property granted to authors whereby they
obtain, for a limited time, certain exclusive rights to their works. In the
United States, copyright is exclusively federal law, and derives from the
"copyright clause" of the Constitution (Art. 1, sec. 8, cl. 8), which
provides Congress with the power "to promote science and the useful arts,
by securing for limited times to authors ... the exclusive right to their ...
writings."
Copyright
protects only an author's original expression. It doesn't extend to any ideas,
system or factual information that is conveyed in a copyrighted work, and it
doesn't extend to any pre- existing material that the author has incorporated
into a work. 17 U.S.C. 102(b), 103.
The
standard for originality is very low. "Original" in this context
means only that the work has its origin in the author. There is no requirement
that the work be different from everything that has come before: it need only
embody a minimum level of creativity and owe its origin to the author claiming
copyright. To use an extreme example, if two poets, each working in total
isolation and unaware of one another's work, were to compose identical poems,
both of the poems would meet the originality requirement for purposes of the
copyright statute. Feist Publications, Inc. v. Rural Telephone Service Company,
Inc., 111 S.Ct. 1282, 1287-88 (1991).
In
the United States, these seven rights are recognized:
1)
the reproductive right: the right to reproduce the work in copies; 2) the
adaptative right: the right to produce derivative works based on the
copyrighted work; 3) the distribution right: the right to distribute copies of
the work; 4) the performance right: the right to perform the copyrighted work publicly;
5) the display right: the right to display the copyrighted work publicly; 6)
the attribution right (sometimes called the paternity right): the right of the
author to claim authorship of the work and to prevent the use of his or her
name as the author of a work he or she did not create; 7) the integrity right:
the right of an author to prevent the use of his or her name as the author of a
distorted version of the work, to prevent intentional distortion of the work,
and to prevent destruction of the work.
17
U.S.C. 106, 106A.
Not
all of these rights apply to all types of works. For example, the display right
applies to literary, musical, dramatic and choreographic works, pantomimes, and
motion pictures and other audiovisual works. It does not apply to sound
recordings and to architectural works. The attribution right and the integrity
right apply only to works of visual art.
Also,
not all rights have the same duration: in the U.S., rights 1-5 normally have a
duration of the author's life plus 50 years, while rights 6-7 endure only for
the life of the author.
These
rights are not unbounded, and in the U.S., sections 107 through 120 of the
copyright law catalog a series of restrictions on the rights. Some of these
restrictions are discussed elsewhere in the FAQ (see, e.g., sections 2.8, 2.9,
and 3.7).
And,
by the way, many persons erroneously spell it "copywrite," apparently
because of the association with written material. The correct word is
"copyright." It derives from an author or publisher's right to the
copy (copy here being used in the sense that it is used in the newspaper trade:
the text of an article).
2.2)
What is "public domain?"
In
contrast to copyright is "public domain." A work in the public domain
is one that can be freely used by anyone for any purpose.
It
used to be that if a work was published without notice, it lost all copyright,
and entered the public domain. That's no longer true, and now public domain is
more the exception than the rule.
There
are still a number of ways that a work may be public domain.
-
The copyright may have expired (see section 2.4).
-
The work might be a work of the U.S. Government; such works can't be
copyrighted (see section 3.6).
-
The work might be one that can't be copyrighted. For example, titles, names,
short phrases and slogans can't be copyrighted (37 C.F.R. 202.1(a)). Note,
however, they can be trademarks. As far as copyright law is concerned, they're
public domain, but as far as trademark law is concerned, they might be
protected.
-
The copyright might have been forfeited. For example, the work may have been
published without notice prior to the change in the law that eliminated the
notice requirement (March 1, 1988, the effective date of the Berne Convention
Implementation Act, PL 100-568, 102 Stat. 2853).
-
The copyright might have been abandoned. This is pretty rare. Abandonment
requires that the copyright holder intend to abandon the copyright, and
generally requires an unambiguous statement or overt act on the part of the
copyright holder that indicates his or her intent to dedicate the work to the
public domain. National Comics Pub. v. Fawcett Pub., 191 F.2d 594, 598 (2d
Cir., 1951). A statement that anyone who wishes to may reproduce, perform, or
display the work without restrictions might be sufficient. Simply posting it on
a computer network is not abandonment.
There
is a common belief that if someone infringes a copyright, and the copyright
owner does not sue or otherwise put a stop to the infringement, the copyright
is lost and the work goes into the public domain. There is some pre-1988 law on
this (e.g., Stuff v. E.C. Publications, 432 F.2d 143 (2d Cir., 1965) and
Transgo v. Ajac Transmission Parts, 768 F.2d 1001 (9th Cir. 1985)), but it
seems to derive mostly from the fact that the copyright holder had acquiesced
in the publication of the work without notice back when notice was a
requirement. It was the publication without notice, and not the lack of
enforcement, that actually worked to put the work in the public domain. This is
forfeiture of copyright, not abandonment. Because the notice requirement is now
gone from copyright law, these cases don't have much weight today.
I
can't find anything that supports the idea that failure to assert a copyright
against an infringer can alone lead to placing the work in the public domain
(if you have any authoritative information on this, please drop me a note at
one of the addresses listed in the introduction). Of course, circumstances may
be such that the ability to sue a particular infringer might be waived (e.g., a
statute of limitations may expire (see section 3.4), or if the infringer has
reasonably relied to his or her detriment on the copyright holder's failure to
sue, the doctrine of laches may bar a suit), but that's only with respect to
that particular infringer, and does not affect the status of the copyright with
respect to others.
Sometimes
you'll see a program on the network accompanied by a statement like "This
program is public domain. It may be freely distributed, but you may not charge
more for it than the cost of the media." Statements like these are
contradictory. If the program is public domain, you can do whatever you want
with it, including charging whatever you want (although you might not get it).
In this example, what the programmer really wants to do is to retain the
copyright, but provide a non-exclusive license to copy and distribute the work,
with a condition on the license that only the cost of the media may be charged
for it. In this case, where the programmer has, in two consecutive sentences,
both declared the work to be public domain and asserted a copyright in the
work, it's unpredictable whether a court would interpret this as abandonment.
If
there is any restriction upon the use of the work, even the restriction that it
cannot be sold, the work is not public domain. Rather, it's copyrighted, and
the restrictions are essentially limitations on a licensee using one or more of
the exclusive rights described above. For example, the restriction that a work
may only be given away for free is a limitation using the distribution right.
Once
a work is in the public domain, whether by expiration of copyright or by
expressly being dedicated to the public domain by its copyright holder, it can
never again regain copyrighted status.
2.3)
I just wrote a great program/novel/song/whatever. How can I get a copyright on
it?
Good
news. You already have. In the United States, as in most nations, a work is
copyrighted as soon as it is created:
Copyright
protection subsists . . . in original works of authorship fixed in any tangible
medium of expression, now known or later developed, from which they can be
perceived, reproduced, or otherwise communicated, either directly or with the
aid of a machine or device. 17 U.S.C. 102(a).
and,
A
work is "fixed" in a tangible medium of expression when its
embodiment in a copy or phonorecord, by or under the authority of the author,
is sufficiently permanent or stable to permit it to be perceived, reproduced,
or otherwise communicated for a period of more than transitory duration. 17
U.S.C. 101.
What
this means in simple terms is that as soon as you've created your original
work, it's copyrighted. Because of the "either directly or with the aid of
a machine or device" provision, it doesn't matter whether you've printed
it out, or if it's only on your hard drive or floppy disk.
You
don't need any special formalities, such as registering the work with the
Copyright Office, or providing a copyright notice (notice stopped being a
requirement when the U.S. signed the Berne Convention and enacted Berne
Convention Implementation Act in 1988; see section 4.1 for more information).
That
being said, you might want to register the work and provide a copyright notice
anyway. There are certain advantages to doing so (see sections 2.5 and 2.7).
2.4)
How long does a copyright last? Does it need to be renewed?
Generally,
for works created after January 1, 1978, a copyright lasts for fifty years
beyond the life of the work's author, after which it lapses into public domain.
17 U.S.C. 302(a). If the work is prepared by two or more authors (a "joint
work"), its copyright lasts for fifty years after the last surviving
author dies. 17 U.S.C. 302(b). For anonymous and pseudonymous works, and for
works made for hire, copyright exists for 100 years from the date of creation,
or 75 years from the date of first publication, whichever comes first. 17
U.S.C. 302⌐. No renewal is necessary or
permitted.
For
works to which the attribution right and integrity right apply (see section
2.1), these rights endure only for the lifetime of the author. 17 U.S.C.
106A(d).
For
works created between 1950 and 1978, copyright lasts for 75 years from date of
publication. 17 U.S.C. 304(a). Formerly, renewal was required after 28 years;
renewal was made optional in June 1992 by P.L. 102-307, 106 Stat. 264. If the
work was created but not published prior to 1978, its copyright duration is
calculated as if it had been created on January 1, 1978. 17 U.S.C. 303.
For
works created between 1922 and 1950, the copyright lasted for 28 years,
renewable for another 28 (a total term of 56 years). If the copyright was not
renewed, the work lapsed into public domain. In practice, all copyrights
granted prior to 1937 lapsed at the latest in 1992 and are now in public
domain. Copyrights granted between 1937 and 1950 continue to exist only if they
were renewed, and expire between 1993 and 2006.
2.5)
What advantages are there to registering my work with the Copyright Office?
In
order to sue for infringement, with some exceptions, your work must be
registered with the Copyright Office. However, you may register after the
infringement occurs, as long as it's before filing your lawsuit.
The
advantage to registering prior to infringement is that it allows you some
additional remedies that aren't available if you registered after infringement:
namely, statutory damages and attorney's fees. 17 U.S.C. 412.
"Statutory
damages" are damages specified in the statute, as opposed to "actual
damages," which are damages that you can demonstrate in court that you
actually suffered. If you registered your work prior to infringement, you can
skip showing any actual damage, and just elect to receive statutory damages. 17
U.S.C. 504(a).
Statutory
damages for copyright infringement are $500 - $20,000, as determined by the
judge. If the infringer proves that he or she was not aware and had no reason
to believe that his or her acts constituted infringement, the court may lower
damages to as low as $200 per infringement. On the other hand, if the plaintiff
proves that the defendant's infringement was "committed willfully,"
the judge may award damages to as high as $100,000 per infringement. 17 U.S.C.
504⌐.
In
deciding whether to register your work, you must weigh the probability of an
infringement action (and the advantages of attorney's fees and statutory
damages in such an action) against the $20 cost of registration.
CAVEAT:
On February 16, 1993, the Copyright Reform Act of 1993 was introduced in both
houses of the 102nd Congress (H.R. 897 in the House of Representatives and
S.373 in the Senate). If the bill passes, much of the information in this entry
will be rendered incorrect. Specifically, the bill would, among other things,
remove the requirement for registration prior to bringing suit, and would
remove the restrictions on statutory damages that are described above.
2.6)
How can I register a copyright with the U.S. Copyright Office?
To
register a copyright, file the appropriate form with the U.S. Copyright Office,
including the payment for registration costs ($20).
For
most types of work being published in the United States, two copies of the work
being registered must be deposited with the Copyright Office for the use of the
Library of Congress. Strictly speaking, the deposit is not a requirement for
copyright. However, failing to make the deposit at time of publication can
result in fines. Some works are exempt from the deposit requirement.
Registration
forms may be ordered by calling the Copyright Office Hotline (see section 5.1).
When the answering machine answers, leave a message with your name and address,
identifying the material you are ordering. Ask for the form either by form
number, or by Copyright Office Information Package number. A Copyright Office
Information Package is a collection of information on registering copyright for
a particular type of work. It includes the appropriate forms, instructions for
completing them and other useful information.
Here
is a list of commonly requested forms and Copyright Office Information
Packages, arranged by type of copyrighted work:
-
Books, manuscripts and speeches and other nondramatic literary works: Form TX,
Package 109 - Computer programs: Form TX, Package 113 - Music (sheet or
lyrics): Form PA, Package 105 - Music (sound recording): Form SR, Package 121 -
Cartoons and comic strips: Form VA, Package 111 - Photographs: Form VA, Package
107 - Drawings, prints, and other works of visual arts: Form VA, Package 115 -
Motion pictures and video recordings: Form PA, Package 110 - Dramatic scripts,
plays, and screenplays: Form PA, Package 119 - Games: Form TX, Package 108
2.7)
What advantages are there to including a copyright notice on my work?
As
noted in section 2.3, under U.S. law, a work is copyrighted as soon as it is
created. No notice is required to retain copyright. While most of the world has
operated this way for some time, this is a comparatively recent change in U.S.
copyright law, as of March 1, 1988, the effective date of the Berne Convention
Implementation Act, PL 100-568, 102 Stat. 2853 (See sections 4.1 and 4.2 for a
discussion of the Berne Convention).
Although
notice is no longer a requirement, there are still some sound reasons for using
one anyway.
If
you include a copyright notice on a published copy of your work to which the
defendant in an infringement suit had access, he or she may not plead
"innocent infringement" (i.e., that he or she was not aware and had
no reason to believe that his or her acts constituted infringement, the
so-called "innocent infringement" defense) in mitigation of actual or
statutory damages. 17 U.S.C. 401(d), 402(d).
Unlike
the decision of whether to register your work, this is a no-brainer, since it's
simple and free: just include a notice on every published copy of the work.
A
proper copyright notice consists of three things: 1) the letter "C"
in a circle (called, logically enough, the "copyright symbol"), or
the word "Copyright," or the abbreviation "Copr."; 2) the
year of first publication; 3) the name of the copyright owner. 17 U.S.C.
401(b).
Using
"(C)" in place of a copyright notice is not a good idea. To the best
of my knowledge, no court has expressly ruled one way or another whether
"(C)" is a sufficient substitute for a copyright symbol. One case,
Videotronics v. Bend Electronics, 586 F.Supp. 478, 481 (D. Nev. 1984), implies
that it is not sufficient; another, Forry v. Neundorfer, 837 F.2d 259, 266 (6th
Cir., 1988), implies that it might be. While courts are generally lenient in
allowing for what makes up a valid notice, it's best to be squarely within the
statute. If you can't make a copyright symbol, either spell the word out, or
use the "Copr." abbreviation.
As
a side note with regard to international protection, the Universal Copyright
Convention requires that, at a minimum, all signatory nations that require
notice must accept the C-in-a- circle variant; it does not provide a provision
for a spelled out variant. On the other hand, most nations that have signed a
copyright treaty are signatories to the Berne Convention, which forbids
requiring a notice as a condition to copyright. See section 4.1 for details.
For
a sound recording, the notice requirement is similar, except that it uses the
letter "P" (for "Phonorecord") in a circle, plus the year
and owner name. 17 U.S.C. 402(b). The statute does not provide a spelled out
alternative to the P-in-a-circle.
2.8)
Can I ever use a copyrighted work without permission of the copyright holder,
or "What is 'fair use?'"
In
any analysis of copyright, it's important to remember the law's constitutional
purpose: to promote science and the useful arts. "Fair use" is a
doctrine that permits courts to avoid rigid application of the copyright
statute when to do otherwise would stifle the very creativity that copyright
law is designed to foster. The doctrine of fair use recognizes that the
exclusive rights inherent in a copyright are not absolute, and that non-
holders of the copyright are entitled to make use of a copyrighted work that
technically would otherwise infringe upon one or more of the exclusive rights.
Although fair use originated "for purposes such as criticism, comment,
news reporting, teaching, ... scholarship, or research," it also applies
in other areas, as some of the examples below illustrate. However, courts seem
more willing to accept an assertion of fair use when the use falls into one of
the above categories.
Perhaps
more than any other area of copyright, fair use is a highly fact-specific
determination. Copyright Office document FL102 puts it this way: "The
distinction between 'fair use' and infringement may be unclear and not easily
defined. There is no specific number of words, lines, or notes that may safely
be taken without permission. Acknowledging the source of the copyrighted
material does not substitute for obtaining permission."
The
document then quotes from the 1961 Report of the Register of Copyrights on the
General Revision of the U.S. Copyright Law., providing the following examples
of activities that courts have held to be fair use:
-
Quotation of excerpts in a review or criticism for purposes of illustration or
comment; - Quotation of short passages in a scholarly or technical work for
illustration or clarification of the author's observations; - Use in a parody
of some of the content of the work parodied; - Summary of an address or article
with brief quotations, in a news report; - Reproduction by a library of a
portion of a work to replace part of a damaged copy; - Reproduction by a
teacher or student of a small part of a work to illustrate a lesson; -
Reproduction of a work in legislative or judicial proceedings or reports; -
Incidental and fortuitous reproduction in a newsreel or broadcast, of a work
located in the scene of an event being reported.
Document
FL102 is included in Copyright Office information kit 102 ("Fair
Use"), which can be ordered from the Copyright Office (see section 5.1).
Carol
Odlum <carol@dreamer.rain.com>, a free-lance editor, has provided a set
of guidelines used by one publisher as rules of thumb. These certainly have no
legal force, but it's instructive to note at least one publisher's
interpretation of what "fair use" means in the real world. The
publisher uses the following criteria for determining when permission of the
copyright holder must be sought in order for the work to be used:
-
Prose quotations of more than 300 words from a scholarly book. (If a source is
quoted several times for a total of 300 words or more, permission must be
obtained.); - Prose quotations of more than 150 words from a popular,
general-market book; - Prose quotations of more than 50 words from a scholarly
journal; - Quotations of more than 2 lines of poetry or lyrics; - Quotations of
more than 1 sentence from a popular magazine or newspaper; - Quotations of any
length from letters or other personal communications, interviews,
questionnaires, speeches, unpublished dissertations, and radio or television
broadcasts. - Illustrations -- including drawings, graphs, diagrams, charts,
maps, artwork, and photographs -- created by someone else; - Music examples of
more than 4 measures; - Tables compiled by someone else.
2.9)
Fair use - the legal basis of the doctrine.
Section
2.8, above, describes fair use in a nutshell. This follow-on entry provides a
more detailed description of the doctrine for those interested in the nuts and
bolts.
There
are four factors used to decide whether a particular use of a copyrighted work
is a fair use:
(1)
the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes; (2) the nature of
the copyrighted work; (3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and (4) the effect of the use upon
the potential market for or value of the copyrighted work.
17
U.S.C. 107.
The
remainder of this answer discusses how each of these factors has been
interpreted.
(1)
The purpose and character of the use: In considering the purpose and character
of the use, courts have looked to two characteristics of the use: whether the
use is commercial and, somewhat less frequently, whether the use is a
"productive" one.
If
the copyrighted work is being used commercially, e.g., all or part of a
copyrighted drawing being used in a commercially published book on drawing
techniques, that's a strike against it being fair use. On the other hand, if
the same drawing were used in a non-profit school to teach children to draw,
then this factor would be in favor of finding a fair use. Most situations are
somewhere in between. That is, a use might not be commercial, but it's not
necessarily non-profit educational, either.
Note,
though, that the statute does not command this "commercial/non-profit
educational" balance, and not all courts use it, at least not by itself.
Commercial use might be forgiven if the use is characterized as a
"productive" or "transformative" use, i.e., a use of the
material that interprets or otherwise adds value to the material taken from the
copyrighted work. See Consumers Union v. General Signal Corp., 724 F.2d 1044,
1047 (2nd Cir. 1983) (noting that the use of one of Consumer Report magazine's
reviews of a vacuum cleaner in an advertisement was a fair use, in part because
the purpose and character of the advertisement was in part to educate
consumers). The Supreme Court has noted that the distinction between
"productive" and "unproductive" uses is not wholly
determinative, but is helpful in balancing the interests. Sony Corp. v.
Universal City Studios, 464 U.S. 417, 451 n.40 (1983).
(2)
The nature of the copyrighted work: If the work being used is one that is
factual or functional in nature, then that's a point in favor of use of that
work being a fair use. That's because copyright isn't available for facts
themselves, and the courts recognize that it's kind of dumb to force someone
with a newspaper clipping to completely rewrite it to avoid infringement
(besides, a paraphrase is still an infringement, because it qualifies as
creating a derivative work, even if it's not a direct copy). If the work is a
fictional or artistic one, though, taking the work is taking much more than any
underlying facts. A fictional or artistic work is more expressive than a
factual one, so the copyright (which is designed to protect expression) is
stronger. Even in factual works, however, where the portion used includes
subjective descriptions whose power lies in the author's individualized
expression, this factor might go against a finding of fair use, if the use
exceeds that necessary to disseminate the facts. See Harper and Row v. Nation
Enterprises, 471 U.S. 539 (1985) (finding no fair use for infringement of
former U.S. President Ford's memoirs despite its factual content).
Another
point that's often examined in looking at the nature of the copyrighted work is
whether the work has been published. Courts will generally consider a use of an
unpublished work as more likely to infringe than a similar use of a published
work. Harper and Row v. Nation Enterprises, 471 U.S. 539, 564 (1985). This is
for two reasons. First, the first publication is often the most valuable to the
copyright holder. Second, it affects the copyright holder's ability to choose
not to publish the work at all. See Salinger v. Random House, 811 F.2d 90, 97
(2nd Cir. 1987).
As
with the first factor, while the "fact/fiction" balance and
"published/unpublished" balance are two of the most common, they are
not commanded by the statute, which only requires considering the "nature
of the copyrighted work." For example, in Sega v. Accolade, 977 F.2d 1510,
1525 (9th Cir., 1993), the Court of Appeals noted that the nature of most
computer programs distributed in object code is that the functional (and
therefore unprotected) elements cannot be discerned without disassembly. This
supported the court's opinion that, in certain limited instances, disassembling
of a competitor's product to find interface information that cannot be obtained
in any other way is a fair use of the work, despite the fact that code
disassembly necessarily involves making a copy of the copyrighted program.
(3)
The amount and substantiality of the portion used in relation to the
copyrighted work as a whole: This appears simpler than it really is. On the
face of it, it means that if you incorporate 95% of a copyrighted work into
another work, it's a lot less likely to be a fair use than if you take only a
small portion, say, 5%. And that's true. However, assessing this factor is a
bit more complex than that simple statement. Even if only a small portion of
the work is used, if that portion is "qualitatively substantial,"
e.g., if the portion used is essentially the heart of the work, that use will
be deemed to have been "substantial," and could go against a finding
of fair use. See Harper and Row v. Nation Enterprises, 471 U.S. 539 (1985)
(finding no fair use for infringement of former U.S. President Ford's memoirs,
where the portion used (which described Ford's decision to pardon former
President Nixon) included "the most interesting and moving parts of the
entire manuscript"), and Roy Export Co. v. Columbia Broadcasting System,
503 F.Supp. 1137 (S.D.N.Y. 1980) (taking of 55 seconds out of 89-minute film
deemed "qualitatively substantial").
To
confuse matters further, some courts have (probably erroneously) interpreted
this factor by looking at what percentage of the work _using_ the material is
composed of material from the copyrighted work, rather than what percentage of
the copyrighted work was used. See, e.g., Association of American Medical
Colleges v. Mikaelian, 571 F.Supp. 144 (E.D. Pa, 1983), aff'd 734 F.2d 3 (3rd
Cir., 1984), aff'd 734 F.2d 6 (3rd Cir., 1984). While this interpretation is
probably erroneous, it's worth bearing in mind that, at least in one judge's
courtroom in the Eastern District of Pennsylvania, that's how the statute will
be interpreted.
(4)
The effect of the use upon the potential market for or value of the copyrighted
work: The U.S. Supreme Court has stated that this factor is "undoubtedly
the single most important element of fair use." Harper and Row v. Nation
Enterprises, 471 U.S. 539 (1985). The late Professor Melvin Nimmer, in his
treatise on copyright law, paraphrased it, "Fair use, when properly applied,
is limited to copying by others which does not materially impair the
marketability of the work which is copied." Nimmer on Copyright, section
1.10[D]. If the use impacts the market for the work, the use is less likely to
be held to be a fair use.
Note
also that the weighing is of the impact on the potential market, not on the
actual market. For example, although Playboy magazine does not distribute its
pictures in machine-readable form, it may choose to do so in the future. One
might argue that digitizing a picture and posting it on the net does not impact
the current market for the magazine originals. However, it impacts the
potential (but currently non-existent) market for machine- readable copies.
Because there is an impact on the potential market, an analysis of this factor
in such a situation would not support a finding of fair use.
If
all this sounds like hopeless confusion, you're not too far off. Often, whether
a use is a fair use is a very subjective conclusion. In the Harper and Row case
cited above, for example, the Supreme Court was split 6-3. In the famous
"Betamax case," Sony v. Universal City Studios, 464 U.S. 417 (1984)
(in which the Supreme Court found that off-air non-archival videotaping of
broadcast television was a fair use), the split was 5-4. In both of these
cases, the District Court ruled one way (no fair use in Harper and Row, fair
use in Sony) and was reversed by the Court of Appeals, which was then itself
reversed by the Supreme Court. This goes to show that even well-educated
jurists are capable of disagreeing on the application of this doctrine.
2.10)
[reserved.]
Downloaded
From P-80 International Information Systems 304-744-2253
THE
HACKER CHRONICLES - Copyright 1980-1996 - P-80 Systems 304-744-2253
To
the best of our knowledge, the text on this page may be freely reproduced and
distributed.
If
you have any questions about this, please check out our Copyright Policy.