Re: Distribution of personal study guide

I believe that the "technical shift of burden" as Steven Jamar called it is more than a mere technicality. In Canada, our "fair dealing" clause (not exactly the same as "fair use" in the USA, but close, especially after the CCH vs. Law Society of Upper Canada unanimous decision by the Supremne Court of Canada in 2004) is a statutory defense - as I under- stand it. I have been told that the same is technically true of "fair use" in the USA. So although one may anticipate that fair dealing or fair use will be applicable and and procede with one's action, these are not the same as the "exceptions" granted to libraries, archives and museums, for example, in the Canadian Act which have explicit rights to do some well-defined things.
Cheers,
Bernard Katz, former head, Special Collections and Library Development

                            McLaughlin Library, University of Guelph     author, descriptive bibliog. of L.M. Montgomery's books (in progress)     and former chair, Ontario Library Association Copyright Task Force

On Mon, 6 Feb 2006, Steven Jamar wrote:

> I am not an infringer if I copy something legally. And the student is not
> doing anything wrong by using material within the bounds of fair use. It is
> not illegal to copy if it is legal to do so. I think this is perhaps one of
> the few times that I think Mr. Riolo has it more functionally right than the
> technical shifting of burdens of proof would suggest. Indeed, some uses are
> so clearly fair use that to bring a suit, even if there were a prima facie
> case that could be made, would violate Rule of Civil Procedure 11. I can,
> for example, write a review of a movie and quote a few lines and trash the
> plot (while disclosing it all) and so on all within fair use. And I can do
> satires, and much more.
>
> So, though there may indeed be a technical shift of burden, the plaintiff who
> would fail to consider the certainty of the use being fair and therefore
> entirely lawful would himself be abusing copyright and the legal system.
>
> Technicalities aside, we should not start with the proposition that the
> student was doing anything illegal just by copying, and we should indeed give
> the student the benefit of the doubt, especially on scanty, skeletal facts.
>
> But too many copyright holders think that their rights are absolute and that
> indeed they can legitimately claim a violation until proven otherwise. A
> shift of the burden of proof does not relieve one of responsibility to
> evaluate the situation in light of possible defenses.
>
> I would love to see that tested in court under Rule 11. I think it would
> surprise some people.
>
> That said, I think the student's paper is likely to be well within the bounds
> of fair use, but further distribution with copied works within it may well
> not be.
>
> Steve
>
> On Feb 6, 2006, at 4:40 PM, Terry Carroll wrote:
>
>> On Mon, 6 Feb 2006, Joseph Pietro Riolo wrote:
>>
>>> On 1/30/06, J. Noble <jfnbl[_at_]earthlink.com> wrote:
>>>>
>>>> While it's "possible" that the student has a fair use defense, we
>>>> don't "need to give the student the benefit of the doubt," and in
>>>> fact we can't -- he has the burden of proof.
>>>
>>> While you are entitled to your own thinking, that kind of
>>> thinking assumes that everyone is a copyright infringer
>>> until proven otherwise.
>>
>> No, that kind of thinking accurately states the law: that once the
>> copyright owner has made out a prima facie case of infringement; i.e. that
>> one of the actions listed in Section 106 as exclusive rights of the
>> copyright owner has been taken by the defendant, the burden of proof that
>> those actions, as performed by the defendant are a fair use, shifts to the
>> defendant.
>>
>>> By quoting a portion of your post, I am assumed to be a copyright
>>> infringer until I prove I am not in a court.
>>
>> By quoting a portion of his post, you are a prima facie infringer. If
>> you were sued for this, you would indeed have the burden of showing that it
>> was fair use.
>>
>> (Actually, the implied license issue muddles it further; I'm fairly sure
>> that the burden of showing that the use was authorized falls on the
>> defendant, too.)
>
> --
> Prof. Steven D. Jamar vox: 202-806-8017
> Howard University School of Law fax: 202-806-8567
> 2900 Van Ness Street NW
> mailto:stevenjamar[_at_]gmail.com
> Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/
>
> "Life does not consist mainly, or even largely, of facts and happenings. It
> consists mainly of the storm of thought that is forever flowing through one's
> head."
>
> Mark Twain
Received on Wed Feb 08 2006 - 00:20:00 GMT