use of electronic materials

Don Berman writes:

>This assumes that a court would construe the word display as defined in
>Sec. 101 to cover the case where I look at an electronic book on my
>home computer. A court could easily say that "display" was not intended
>to reach that action.

>And as you correctly point out a court stuck in unnecessary literalism
>could handle the case under fair use.

> (other messages deleted)
>Once again a court could easily say that the legislative history was
>not written with this situation in mind. In short, the Congress did
>not contemplate archiving machine readable books. Since the section
>essentially deals with cases of no commercial advantage a court could
>easily use the existing statute to permit the archiving provided that
>all the other criteria of Sec. 108 are satisfied.

Part of the problem is that we don't have a lot of case law on these issues. We have some case law indicating that the courts are not as likely to reread statutes as we might like. And we have some 20 year old legislative history. And we have a lot of cases where people sue each other and settle before we get reported court decisions. That's not a lot of use in trying to figure out what is legal and what isn't. One thing I am pretty sure of is that some publishers are willing enough to sue almost anybody. Technical applications of the language of the law give may give them a basis for doing so without their suits being deemed frivolous. And it may cost more to defend such suits than the defendants can spend. One caves in and so another publisher may be encouraged to sue. More defendants get scared. The resulting spiral ends up in people being scared to exercise their legal rights when they aren't crystal clear which may lead to a practical narrowing of those rights. At least these discussions keep us thinking and give us arguments to use if someone trys to stop something we think is reasonable.

Mary Brandt Jensen       	   "The definition is pursued to its logical
Professor of Law                   conclusion in a long series of cases. 
University of South Dakota         ... We do not pause to consider whether
School of Law			   a statute differently conceived and 
414 E. Clark St.		   framed would yield results more 
Vermillion, SD 57069-2390	   consonant with fairness and reason.
(605) 677 6363			   We take the statute as we find it."
(605) 677 6357 fax		   Benjamin Cardozo, Anderson v. Wilson
CNICOPY[_at_]CHARLIE.USD.EDU		   289 U.S. 20, 27 (1933)
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