Re: New fair use case from CA2: American Geophys Union v.

Terry Carroll wrties:
>
> I was wondering about this, myself. However, the Court also takes cases
> where the issue is considered to be a particularly important one, and I
> am wondering if this might be such a case. I'm comparing it, in
> importance, to Sony v. Universal, which I think also went to the Supreme
> court without the benefit of a circuit split.
>
> Also, did the "Pretty Woman" case (I don't recall the parties' names) have
> a circuit split? I don't think that there was. I suspect that that case
> was taken by the Supreme Court just to rein in the lower courts' excess
> reliance upon the fair use market impact factor, rather than to resolve a
> split.
>
> I should add that I'm not certain of either of the above cases and whether
> there was a split, and anyone who knows should, as always, feel free to
> jump in and enlighten me.
>
> Of course, I don't know if Texaco is likely to be considered particularly
> important to four SCOTUS members to get cert in any event.

Terry's right that in many of these cases the Court does not use the "split" among circuits to warrant the granting of cert. You could add Harper & Row v. Nation that had to do with copying by the Nation of quotes from Gerald Ford's memoirs. I think the case would appear more important if the alleged infringer was a non-profit educational library making an article available to faculty for low-profile, non-renumerative research. Pretty woman raised serious first amendment issues under the guise of fair use and warranted cert. With Sony I doubt whether the court would ever have taken cert had the court of appeals merely affirmed the trial court's judgment for Sony. A majority of the Court just could not let this judgment stand since it would work a dramatic change in the industry on a most questionable judicial theory of liability - if anyone was going to solve this problem it should be Congress as they did with DAT technology.

  Don Berman --  

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