Re: Re: Re: Distribution of personal study guide

At 6:15 PM -0500 2/6/06, 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 we can all agree that it's not illegal if it's legal.

>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.

But this isn't one of those uses that are so clearly fair use.

>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.

None of which bear any resemblance to the reproduction of entire works, which is where we started.

>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.

I don't know for what purpose you want to give the student the benefit of the doubt. If it's to decide whether he's a bad person, I'll give him the benefit of the doubt. But if it's to advise on whether his unauthorized reproduction and distribution of entire graphic works created by someone else is copyright infringement, we have to start with the assumption that those scanty and skeletal facts establish a prima facie claim of infringement, and then look for facts that might raise a doubt. If you start with the assumption that it's fair use, what additional facts would let you cast doubt aside?

>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.

I was willing to agree with Riolo that it was "possible." I think "likely" is pushing it. In any case, the difference between fair use and infringement isn't the unauthorized distribution of 30 vs. 60 unauthorized reproductions.

John Noble Received on Wed Feb 08 2006 - 00:20:00 GMT