Re: Re: Litigation Exception

The fair use provision codifies the equitable doctrine of fair use against a construction of the plain language of sec. 106 that might foreclose fair use. The whole point was to preserve judicial discretion, recognizing that Congress couldn't anticipate all the forms and occasions of fair use. As you start adding categorical exemptions you defeat the purpose by inviting application of the canon of statutory construction, expressio unius est exclusio alterius (did I get that right?) -- the expression of one thing excludes everything else.

Even if you had a categorical but non-exclusive exception for "legislative and judicial proceedings," you would only create problems. Can Sen. Clinton filibuster the nomination of Pat Robertson to Supreme Court by reading Sen. Santorum's book, "It Takes a Family," into the record over two days; and then use her franking privileges to mail a free copy of the Congressional Record to every household in New York? Can I attach a copy of the newest release of Windows to an antitrust complaint against Microsoft and then, like Westlaw, distribute a copy of the public record from my website for $15?

In this instance at least, there's not a lot of room between the evidence of legislative intent ("courts might") and the language of the statute ("such as"). Even Scalia, ignoring the legislative history, would read the plain language of the fair use provision as plainly non-categorical and non-exclusive.

John Noble

At 3:55 PM -0400 8/24/05, John P. McNeill wrote:
>Of course, that is just what the legislative history says and not what the
>statute says. In fact, your quote from the House Report states that the
>examples are only the "sort of activities the courts MIGHT (emphasis added)
>regard as fair use." There are some, Scalia among them, that would say that
>if Congress wanted to adopt the legislative exception that you point out in
>the House Report, then Congress would have put that language in the final
>version of the statute. In fact, many of the examples given are enumerated
>in the statute: review or criticism, short passage in scholarly work,
>parody, news, and so on (of course even that enumeration is proceeded by the
>"such as" phrase). But the statute itself does not mention legislative or
>judicial proceedings, and it very easily could have.
>
>
>
>
>-----Original Message-----
>From: CNI-COPYRIGHT -- Copyright & Intellectual Property
>[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of roberthelmer[_at_]charter.net
>Sent: Tuesday, August 23, 2005 6:45 PM
>To: CNI-COPYRIGHT -- Copyright & Intellectual Property
>Subject: [CNI-(C)] Re: Litigation Exception
>
>>>> Is there an exception to US copyright law that allows the copying
>>>> of
>copyrighted materials to be submitted to the court in the first place?
>
>
>The last clause below, from the legislative history of the copyright act
>would be of most interest:
>
>
>"The judicial doctrine of fair use, one of the most important and
>well-established limitations on the exclusive right of copyright owners,
>would be given express statutory recognition for the first time in section
>107. The claim that a defendant's acts constituted a fair use rather than an
>infringement has been raised as a defense in innumerable copyright actions
>over the years, and there is ample case law recognizing the existence of the
>doctrine and applying it. The examples enumerated at page 24 of the
>Register's 1961 Report, while by no means exhaustive, give some idea of the
>sort of activities the courts might regard as fair use under the
>circumstances: '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....'"
>
> HOUSE REPORT NO. 94-1476 General Background of the Problem. (Pub. L.
>94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2546
>
>Bob
>
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Received on Fri Aug 26 2005 - 01:30:00 GMT