Re: copyright & fair use

>> section 107) of limitations of exclusive rights, and about what is 'not
>> an infringement', but then it goes on to mention in 108(b) onwards
>> 'rights of reproduction and distribution under this section'. Maybe
>> there is something in the US copyright decisions that resolves the point?
>
>
> My understanding of American fair use law is that decisions are not
> clear: some seem to say that fair use of a work is not infringement
> in the first place; others that fair use is an affirmative defense to
> what is otherwise clearly infrignement; doubtless there is language
> in various opinions that would support the concept of fair use as a
> "right;" and other language that would support the "limitation on
> authors' right" concept.
>
> My point is that when the situation is not entirely clear from the
> statute (notwithstanding Mr. Stancliffe's and Professor Berman's
> arugments--and the latter explicitly avoided putting too much stress
> on the point), that our preference ought to be to allow people to
> make voluntary agreements to suit themselves. That is, we ought to
> let people make contracts for whatever they want to make them in the
> absence of some strong public policy to the contrary or some contract
> failure like duress, etc.
>
> To the argument that allowing fair use IS just such a strong public
> policy, I respond "No, it isn't." It's a convenience to accommodate
> situations in which contractual agreements are difficult or expensive
> to reach. When that's not true--when actual, for-real bargains are
> cheaply made between parties of equal bargaining strength, acting
> with eyes open at arms' length in good faith, without serious external
> effects--the policy of letting people do what they want simply
> overrides any fair use policies. Indeed, I can't think of force at
> all to the fair use argument in these circumstances.
>
> --Trotter Hardy

But Purchasing a book with a limitation on fair use printed on the title page is exactly one of those situations "in which contractual agreements are difficult or expensive to reach". The routine purchase of a commodity item like a book is the paradigmatic example of an adhesive contract. Even for large libraries with, arguably, some bargaining clout, negotiatiion with each publisher is economically unrealistic.

As I have been following this thread, I have been noticing the parallels between this situation and the Louisiana "shrink wrap" case. In each, the publisher has attempted to use state contract law to expand the statutory rights under his copyright. Why wouldn't the same preemption argument apply here.

There's also a strong uniformity agrument, especially when talking about libraries that purchase thousands of books from thousands of publishers. What kind of management system would they have to have to keep up with different copying and fair use privileges for all of them?

This is an area in which I don't think contract law can provide conditions under which a viable market can function.

Buford Terrell
<terrell[_at_]sugar.neosoft.com> Received on Wed Apr 20 1994 - 14:24:07 GMT