In my own head, I've always divided the rights granted to creators into
two piles: the copy-like pile and the distribution pile. To some
extant, it is taking one from column A and one from column B that
constitutes infringement. I would argue that the distribution rights
are limited by the 17USC109 (first sale) and the copying rights are
limited by 17USC107(fair use). Eg. Writing fanfic episodes of Star Trek
and not showing anyone is probably a fair use because while it violates
one of the copy-like rights (creation of a derivative work) if there's
no distribution there really isn't any harm. Lending DVDs to friends is
ok because there is no real copying involved. Creating mixtapes and
handing them out isn't okay because copying and distribution are
involved. And of course, public performance to some extant lies in both
columns.
-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property
[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of J. Noble
Sent: Thursday, September 07, 2006 4:35 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: [CNI-(C)] Scanning books into electronic format
John M. has the key point: "if ever that second copy can be detected, there is a pretty good chance that the reason it was detected will be a factor weighing against fair use." Distribution that either makes money for the distributor, and/or takes money from the copyright owner is a) harmful and b) discoverable. That's a case.
Personal archival copies of literary works, back-up copies of audio-visual works, and even one-off mixes of musical works, are, for all practical purposes, undiscoverable; and inasmuch as they are undiscoverable, they are a) more likely than not fair use, and b) unharmful. You cannot justify the cost of the postage on a cease and desist letter.
John Noble
At 4:15 PM -0400 9/6/06, John T. Mitchell wrote:
>Steve makes a good point. There is no "buy one, make a copy free"
>provision in the US Copyright Act even if it is "for personal use."
>Even the Section 1008 (non-commercial use) provision applies only to
>certain kinds of works, and was established on the assumption that
>royalties were being paid on blank media to offset the losses due to
>generally undetectable reproduction.
>
>That said, I believe Section 107 (fair use) could leave room for a
>digital reproduction made solely to aid the owner of the paper copy
>in exploring its contents. However, if ever that second copy can be
>detected, there is a pretty good chance that the reason it was
>detected will be a factor weighing against fair use. OCR software
>has been around for quite some time, and the very basis for its
>existence is to make digital reproductions -- without regard to
>copyright -- and try to decipher the text from them. It is one
>thing for a lawyer to use "scan and OCR" to find the needle in a
>haystack of evidentiary documents, but quite another if the lawyer
>then publishes them beyond the confines of the litigation.
>
>John M
>
>On Sep 6, 2006, at 2:05 PM, Steven Jamar wrote:
>
>>Just changing the media of on which something is made without more
>>is generally considered to be making a copy, not a derivative work.
>>So just scanning a book into an electronic form would qualify as
>>making a copy, not making a derivative work. This goes back at
>>least to the Batlin case.
>>
>>Where does US Copyright law permit the owner of a copy to make a
>>copy as a backup? It does so in section 117 for software, but I
>>don't recall such a right for ordinary hard copies of literary
>>works or sound recordings.
>>
>>Steve
>>
>>
>>
>>On Sep 6, 2006, at 11:45 AM, Carl Oppedahl wrote:
>>
>>>johnmcn[_at_]bellsouth.net wrote on 9/5/2006 4:55 PM:
>>>
>>>>Conversion from printed form to an electronic form is likely also
>>>>a derivative work (not merely just a copy or reproduction) and
>>>>the right to create derivative works is also an exclusive right
>>>>of the copyright owner.
>>>>
>>>The US copyright law explicitly permits the owner of a copy of a
>>>work to make backups .
>>>
>>
>>--
>>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://iipsj.com/SDJ/
>>
>>"No place affords a more striking conviction of the vanity of human
>>hopes than a public library."
>>
>>Samuel Johnson, 1751
>>
>>
>>
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