Re: requesting permission / fair use...

On Tue, Mar 21, 2000, Wes Cochran <xpjwc[_at_]ttacs.ttu.edu> wrote:
>
> On 3/17/2000, Christopher Gwyn <christopher[_at_]icopyright.com> wrote:
> >
> > Hypothetical Case: Some one is wanting to use something protected
> > by copyright in a clearly "fair-use" way (perhaps making one copy
> > of one paragraph of a lengthy article to be read aloud in a classroom)
> > but -- being a well brought-up person -- seeks permission anyway. The
> > Publisher denies the permission request. The Requester decides to go
> > ahead with the use and is subsequently sued by The Publisher for
> > infringement.
> >
> . . .
> >
> > In short -- can asking permission reduce the validity of a "fair-use"
> > defense? I would think not since if a particular use is "fair use"
> > the copyright holder doesn't have the authority to prohibit it... but
> > if anyone thinks otherwise I am very very curious as to why...
>
> Maxtone-Graham v. Burtchaell, 803 F.2d 429 (2d Cir. 1986), comes
> to mind. The defendant had requested permission to quote from the
> plaintiff's work, and, when refused, did so anyway in a manner that
> the court found to be a fair use. The plaintiff urged the court to
> find bad faith on the defendant's part, weighing against fair use,
> because he used the work in the face of a denied request. The court
> held that the defendant shouldn't be penalized for erring on the side
> of safety by making the request. Because the defendant's use of the
> original was within fair use, the fact that the plaintiff denied
> permission for the use wasn't relevant to the fair use analysis.

   From this, if one concedes access (?), can't you exclude the letter in its entirety under FRE 401?

Chris Mohr
<chrismohr[_at_]sprintmail.com> Received on Tue Mar 21 2000 - 20:19:04 GMT