Re: Re: fourth fair use factor

On Oct 31, 2006, at 8:55 AM, <jrfriedman[_at_]litproplaw.com> <jrfriedman[_at_]litproplaw.com> wrote:

> I also am aware that if one is relying on a fair use defense, one
> is conceding that one has committed infringement. T

More than a quibble, but not in the end a huge matter:

Section 107 specifically states that if it is fair use it is NOT an infringement. One has certainly displayed or performed or reproduced the work or copied it or made a derivative work, but that use is ok -- not an infringement by the literal language of the code.

> The prospective plaintiff in my situation, a non-profit that lives
> on sponsorship and grant money, makes its works available for free
> on its Web site, although it specifies that users may make only
> personal non-commercial use of them. My client, also a non-profit,
> reproduced some of the works in a public-interest publication,
> thinking that it was all right for it to do so; and the plaintiff
> is claiming infringement. This almost certainly will not go to
> litigation, but for purposes of negotiation, I am assessing whether
> the use that my client made would be held to be fair use. In
> analyzing the facts under the fourth factor, my first thought was
> that since the plaintiff makes its works available for free, my
> client would prevail, but to make sure I was considering the whole
> picture, I thought I would ask whether there are cases holding that
> even when the plaintiff does not charge for its works, and would
> appear to have no intention of ever doing that.

The fourth factor is about not what the copyright holder does with respect commercial exploitation, but rather about what the user is doing and the effect of that on the "potential market for or value of the copyrighted work." What better evidence is there of a deleterious effect on "the potential market for" than that someone is exploiting the work for commercial gain (even if not for "profit") or reducing the value of the work by making it available through a non- authorized channel? The effect of a book publishing it may be quite different from free availability on the web. The owner may want broad distribution through one media, but not another. The owner may want no-cost, no money exchanges rather than any costs associated with distribution of the work. The owner may want the work to be absolutely free to everyone and that is the "value" -- and by requiring payment, the infringer is undermining the value of the free work.

Your position seems to be that anything given away is in effect in the public domain. That is not the case. Fair use is not a substitute for public domain. And we do not have an abandonment doctrine of that sort in copyright law.

Sorry, no cases I know of, just the statute. And my reading is against your position.

Of course your argument is not a bad one as to value (damages), and the argument does have some relevance to fair use, though not perhaps as much weight as you might hope. But I think your Achilles heal is the word "potential" in the code.

Your client's use might still be a fair use, of course, under all the circumstances. But the fourth factor is not quite as helpful as it might seem at first blush.

Steve

-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
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