RE: Re: Fair use

>From: Samuel Murray <leuce[_at_]absamail.co.za>
>Reply-To: "CNI-COPYRIGHT -- Copyright & Intellectual Property"
><CNI-COPYRIGHT[_at_]cni.org>
>To: "CNI-COPYRIGHT -- Copyright & Intellectual Property"
><CNI-COPYRIGHT[_at_]cni.org>
>Subject: [CNI-(C)] Re: Fair use
>Date: Tue, 28 Feb 2006 12:15:00 -0500
>
>I would greatly appreciate it if other members on this list can tell me if
>I understand fair use correctly. The way I understand it, "fair use" is
>not something which is either granted or withheld by the author of work.
>Instead, it is a concession granted by law or in terms of the principles of
>fairness itself. There is nothing an author can do, legally speaking, to
>prevent the use of his work if such work is deemed "fair use". Even if the
>author would try to prevent copying, and fails to do so, and the copying
>would be "fair use" type of use, the fact that he had attempted to prevent
>the use would have no legal effect on the measure of fairness of "fair
>use", am I right?

Dear Samuel: You're pretty close, but I'd add a few qualifications.

First, under the Digital Millennium Copyright Act, if my copyrighted work is made available subject to effective technological measures that control access, I can render it difficult or impossible for third parties to gain access to the work in order to make fair use, or any use, of it, and to enjoin their actions if they do so.

Second, case law has recognized the enforceability of agreements that prohibit reverse engineering or other uses that might ordinarily be considered a fair use. See Bowers v. Baystate Technology, 320 F.3d 1317, 1337 (Fed. Cir. 2003): "a state can permit parties to contract away a fair use defense or to agree not to engage in useof copyrighted material that are permittted by the copyright law if the contract is freely negotiated."

Howard G. Zaharoff
Morse, Barnes-Brown & Pendleton, P.C.
1601 Trapelo Rd.
Waltham, MA 02451
  781-622-5930
  hgz[_at_]mbbp.com Received on Fri Mar 03 2006 - 06:50:00 GMT