RE: Re: fourth fair use factor

Sorry if I gave the impression that I thought my client was in the clear. By posting my original question, I was looking for confirmation of my doubts about the likelihood that my client would prevail.

Jessica Friedman

-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org]On Behalf Of Steven Jamar Sent: Wednesday, November 01, 2006 1:50 PM To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: fourth fair use factor

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 nonauthorized  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
2900 Van Ness Street NW                   mailto:stevenjamar[_at_]gmail.com
Washington, DC  20008	                         http://iipsj.com/SDJ/

"It is by education I learn to do by choice, what other men do by the
constraint of fear."

Aristotle



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