Comments on: Fair Use and “Market Effects”: Which Potential Markets Count? http://blogs.law.harvard.edu/infolaw/2006/05/22/fair-use-and-market-effects-which-potential-markets-count/ Information, Law, and the Law of Information Tue, 24 Nov 2009 00:08:14 -0500 http://wordpress.org/?v=2.8.4 hourly 1 By: Info/Law » Open Access Law, or: Should Law Professors Write for Wikipedia? http://blogs.law.harvard.edu/infolaw/2006/05/22/fair-use-and-market-effects-which-potential-markets-count/comment-page-1/#comment-3244 Info/Law » Open Access Law, or: Should Law Professors Write for Wikipedia? Wed, 31 Jan 2007 00:41:34 +0000 http://blogs.law.harvard.edu/infolaw/2006/05/22/fair-use-and-market-effects-which-pot#comment-3244 [...] In the spirit of living up to my own principles, I made a couple of very minor contributions to the world of open access primary legal source materials in the fall. The process of preparing the handout for my fall IP survey course left me with electronic versions of several recent cases that I wanted to cover in class, so I picked a couple of them and put them online at Wikisource. Here they are: BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005) (a case I’ve briefly mentioned on this blog a couple of times); and Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004) (which I’ve blogged about here and here). I wrote up a short summary of the Gonzalez case for Wikipedia, and minimally edited this already very thorough entry on the Lexmark decision. [...] [...] In the spirit of living up to my own principles, I made a couple of very minor contributions to the world of open access primary legal source materials in the fall. The process of preparing the handout for my fall IP survey course left me with electronic versions of several recent cases that I wanted to cover in class, so I picked a couple of them and put them online at Wikisource. Here they are: BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005) (a case I’ve briefly mentioned on this blog a couple of times); and Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004) (which I’ve blogged about here and here). I wrote up a short summary of the Gonzalez case for Wikipedia, and minimally edited this already very thorough entry on the Lexmark decision. [...]

]]> By: Info/Law » Technology for Rights Clearance and Fair Use http://blogs.law.harvard.edu/infolaw/2006/05/22/fair-use-and-market-effects-which-potential-markets-count/comment-page-1/#comment-724 Info/Law » Technology for Rights Clearance and Fair Use Mon, 14 Aug 2006 16:12:37 +0000 http://blogs.law.harvard.edu/infolaw/2006/05/22/fair-use-and-market-effects-which-pot#comment-724 [...] Some people with whom we spoke fretted, quite understandably, about the trend toward rightsholders slicing and dicing content into smaller bits and offering licenses for every conceivable tiny use. As Tim Armstrong explained a few months ago, the mere existence of a market for a particular use of content has been seen by some courts as severely undermining a fair use defense. Educators thus forced to pay constantly for microchunks of content that ought to be covered by fair use might soon be priced out of those markets — a perverse effect of the “any conceivable market counts” approach to fair use. On the other hand, there certainly are times when fair use just does not apply, and educators would like to have an easier time clearing rights. Our case study about the Database of Recorded American Music is an example of such a situation: its sponsors wanted to make full copies of important music more widely available on college campuses and recognized that doing so required licenses rather than reliance on fair use. They encountered rights clearance nightmares (which, with tenacity and persistence, they resolved, but others with fewer resources and less skill might have more trouble overcoming such problems). [...] [...] Some people with whom we spoke fretted, quite understandably, about the trend toward rightsholders slicing and dicing content into smaller bits and offering licenses for every conceivable tiny use. As Tim Armstrong explained a few months ago, the mere existence of a market for a particular use of content has been seen by some courts as severely undermining a fair use defense. Educators thus forced to pay constantly for microchunks of content that ought to be covered by fair use might soon be priced out of those markets — a perverse effect of the “any conceivable market counts” approach to fair use. On the other hand, there certainly are times when fair use just does not apply, and educators would like to have an easier time clearing rights. Our case study about the Database of Recorded American Music is an example of such a situation: its sponsors wanted to make full copies of important music more widely available on college campuses and recognized that doing so required licenses rather than reliance on fair use. They encountered rights clearance nightmares (which, with tenacity and persistence, they resolved, but others with fewer resources and less skill might have more trouble overcoming such problems). [...]

]]> By: Frank Pasquale http://blogs.law.harvard.edu/infolaw/2006/05/22/fair-use-and-market-effects-which-potential-markets-count/comment-page-1/#comment-704 Frank Pasquale Tue, 08 Aug 2006 17:13:34 +0000 http://blogs.law.harvard.edu/infolaw/2006/05/22/fair-use-and-market-effects-which-pot#comment-704 This is a very enlightening round-up of cases. My humble effort to "bring order" to this subject is here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=850704 and includes cites to the seminal work in this field from Loren, Africa, and Duhl. As for my take: I have a fear that courts are going to "Cut the gordian knot" by adopting a misunderstanding of Gordon's transactions costs approach...i.e., they will say that any use that can be paid for, should be paid for. That's why I've focused my fair use scholarship away from the fourth factor and towards the first factor. This is a very enlightening round-up of cases. My humble effort to “bring order” to this subject is here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=850704

and includes cites to the seminal work in this field from Loren, Africa, and Duhl.

As for my take: I have a fear that courts are going to “Cut the gordian knot” by adopting a misunderstanding of Gordon’s transactions costs approach…i.e., they will say that any use that can be paid for, should be paid for. That’s why I’ve focused my fair use scholarship away from the fourth factor and towards the first factor.

]]> By: Info/Law » Google, Fair Use, and Settlement http://blogs.law.harvard.edu/infolaw/2006/05/22/fair-use-and-market-effects-which-potential-markets-count/comment-page-1/#comment-703 Info/Law » Google, Fair Use, and Settlement Tue, 08 Aug 2006 16:48:15 +0000 http://blogs.law.harvard.edu/infolaw/2006/05/22/fair-use-and-market-effects-which-pot#comment-703 [...] So, not only would settlements lock in Google as the super-dominant player as Pasquale says (and as many techies have begun to fear anyway), it also would short-circuit the movement of the law to a reasonable accommodation of search technology. To be sure, that movement is slow, indirect, and sometimes fumbling, but it is happening. The Perfect 10 appeal (which Tim discussed here) is one place where the issues will be teed up fairly soon. Yet given the risks inherent in waiting around for courts and then possibly Congress, I would not be surprised if Google indeed chose to settle. And then the litigation would disappear and Congress would go back to its many other worries. [...] [...] So, not only would settlements lock in Google as the super-dominant player as Pasquale says (and as many techies have begun to fear anyway), it also would short-circuit the movement of the law to a reasonable accommodation of search technology. To be sure, that movement is slow, indirect, and sometimes fumbling, but it is happening. The Perfect 10 appeal (which Tim discussed here) is one place where the issues will be teed up fairly soon. Yet given the risks inherent in waiting around for courts and then possibly Congress, I would not be surprised if Google indeed chose to settle. And then the litigation would disappear and Congress would go back to its many other worries. [...]

]]> By: Info/Law » Bowdlerization as Fair Use http://blogs.law.harvard.edu/infolaw/2006/05/22/fair-use-and-market-effects-which-potential-markets-count/comment-page-1/#comment-561 Info/Law » Bowdlerization as Fair Use Tue, 11 Jul 2006 21:35:09 +0000 http://blogs.law.harvard.edu/infolaw/2006/05/22/fair-use-and-market-effects-which-pot#comment-561 [...] The court cites and distinguishes the Second Circuit’s recent Bill Graham Archives case (discussed by Tim here). When that decision came out, some observers thought it would be a very significant and useful case, but I was more skeptical. The fact that the court felt compelled to deal with the case here – even though, since it’s from a different geographical circuit, it is not controlling – provides an early indication that I was wrong and that the Bill Graham case may come to be seen as a major precedent. [...] [...] The court cites and distinguishes the Second Circuit’s recent Bill Graham Archives case (discussed by Tim here). When that decision came out, some observers thought it would be a very significant and useful case, but I was more skeptical. The fact that the court felt compelled to deal with the case here – even though, since it’s from a different geographical circuit, it is not controlling – provides an early indication that I was wrong and that the Bill Graham case may come to be seen as a major precedent. [...]

]]> By: blog.forret.com | Google and Perfect10: DMCA at its best http://blogs.law.harvard.edu/infolaw/2006/05/22/fair-use-and-market-effects-which-potential-markets-count/comment-page-1/#comment-416 blog.forret.com | Google and Perfect10: DMCA at its best Sat, 24 Jun 2006 18:57:38 +0000 http://blogs.law.harvard.edu/infolaw/2006/05/22/fair-use-and-market-effects-which-pot#comment-416 [...] The outcome of the law suit came as some sort of surprise: Case #2 is Perfect 10 v. Google, in which a district court said that Google’s display of scaled-down thumbnail versions of Perfect 10’s copyrighted photos in its Google Image Search results page wasn’t fair use, reaching the opposite conclusion from the Ninth Circuit in Kelly v. Arriba Soft on similar facts. Perfect 10’s claim succeeded where Kelly’s failed, the court reasoned, because during the course of the litigation Perfect 10 had contrived to create a “market” for the sale of thumbnails through licensing them to a single cell-phone provider. (And wouldn’t you like to know who paid whom in that exchange!) from blogs.law.harvard.edu/infolaw/ [...] [...] The outcome of the law suit came as some sort of surprise: Case #2 is Perfect 10 v. Google, in which a district court said that Google’s display of scaled-down thumbnail versions of Perfect 10’s copyrighted photos in its Google Image Search results page wasn’t fair use, reaching the opposite conclusion from the Ninth Circuit in Kelly v. Arriba Soft on similar facts. Perfect 10’s claim succeeded where Kelly’s failed, the court reasoned, because during the course of the litigation Perfect 10 had contrived to create a “market” for the sale of thumbnails through licensing them to a single cell-phone provider. (And wouldn’t you like to know who paid whom in that exchange!) from blogs.law.harvard.edu [...]

]]> By: Joseph Savirimuthu http://blogs.law.harvard.edu/infolaw/2006/05/22/fair-use-and-market-effects-which-potential-markets-count/comment-page-1/#comment-108 Joseph Savirimuthu Sat, 27 May 2006 16:39:40 +0000 http://blogs.law.harvard.edu/infolaw/2006/05/22/fair-use-and-market-effects-which-pot#comment-108 Not reconcilable - is my view. To be sure the fair use doctrine conceals the complex normative and practical issues that the juridical framework is being used to address. As many have observed, some issues are not readily amenable to juridification. Have done a short article that deals with the Perfect 10/Kelly Arriba point (note the argument pursued by the claimant in the latter case and also judicial notice taken of the spider). What is interesting about Perfect 10 is that due to the amenability of the complex issues for judicial solution - the result actually creates some wiggle room for parties to produce a negotiated outcome. This neatly shows the instrumentality of the fair use defence - it is dealing with trade-offs as well normative and practical issues. Not reconcilable – is my view. To be sure the fair use doctrine conceals the complex normative and practical issues that the juridical framework is being used to address. As many have observed, some issues are not readily amenable to juridification. Have done a short article that deals with the Perfect 10/Kelly Arriba point (note the argument pursued by the claimant in the latter case and also judicial notice taken of the spider). What is interesting about Perfect 10 is that due to the amenability of the complex issues for judicial solution – the result actually creates some wiggle room for parties to produce a negotiated outcome. This neatly shows the instrumentality of the fair use defence – it is dealing with trade-offs as well normative and practical issues.

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