RE: Re: Re: Fair use

From: Agenbroad, James \(Civ,ARL/CISD\) <jagenbro[_at_]arl.army.mil>
Date: Fri, 03 Mar 2006 13:40:55 -0500

And we probably don't need to restart the dabate in this list on the enforceability of click/shrink/mywayorthehighway wrap licenses.

-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Howard Zaharoff Sent: Thursday, March 02, 2006 8:50 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: [CNI-(C)] 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

#############################################################
This message is sent to you because you are subscribed to
     the mailing list <CNI-COPYRIGHT[_at_]cni.org>.

To unsubscribe, E-mail to: <CNI-COPYRIGHT-off[_at_]cni.org> To switch to the DIGEST mode, E-mail to <CNI-COPYRIGHT-digest[_at_]cni.org> To switch to the INDEX mode, E-mail to <CNI-COPYRIGHT-index[_at_]cni.org> To postpone your subscription, E-mail to <CNI-COPYRIGHT-null[_at_]cni.org> To resume mail list message delivery from postpone mode, E-mail to <CNI-COPYRIGHT-feed[_at_]cni.org>
Send administrative queries to <CNI-COPYRIGHT-request[_at_]cni.org>

Visit the CNI-COPYRIGHT e-mail list archive at <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>. Received on Fri Mar 03 2006 - 23:40:55 GMT