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

> The Second Circuit majority based its holding on the combination of two
> factors: the non-transformative archival copying and the real and potential
> negative impact on the CCC market for licensing individual articles. The
> decision is hardly surprising nor is it particularly dramatic.

I can't say that I agree. To the contrary, the analysis of the majority opinion creates a vehicle whereby every use could be declared not fair. The problem is that the CCC market would not exist BUT FOR a judicial declaration (or the threat of litigation over) whether the use in question was unfair.

The difficulty with that analysis is that the so-called reasoning merely announces the result. EVERY USE PROSCRIBED BY COPYRIGHT LAW CREATES A POTENTIAL MARKET FOR LICENCING THE RIGHT FOR THAT USE. If the use is not fair, then a market will exist. If the use is fair, then no market could exist. But the court here uses the argument backwards -- it states that the use is fair, because it would preclude the market from existing! What use (of any kind) would not be subject to the same result?

The court's analysis seems flawed for another reason. Because the mere existence of the CCC was used to determine the unfairness of the scientist's archival copying, it now appears that a copyright owner may render a use unfair merely by creating a collection agency for the licensing fees to which it claims that it is entitled.

It seems to me that the fairness of the use should be independent of the EXISTENCE of the collection agency for the prospective license fees that would only result if the use were declared unfair.

This is particularly true in light of Wilkins, which prior to Texaco, established a climate where such copying was previously considered reasonable and customary.

I, too, found the dissent quite persuasive. It confirmed my initial reaction to the majority opinion, that the Texaco "circular reasoning" argument was simply not adequately addressed by the majority.

Perhaps the Second Circuit felt bound by what it perceived to be the District Court's findings of fact, that a market existed beforehand?

N.B.: I do not find the Texaco argument entirely persuasive either. A similar deconstruction can be used to complain that a court is merely announcing its result when it asserts that a use is fair use under the fourth factor. Perhaps it is time to rethink fourth factor analysis in general -- what markets are relevant for fourth factor purposes, and how does one avoid the apparent circular reasoning?

Andrew C. Greenberg
<greenber[_at_]source.asset.com> Received on Tue Nov 08 1994 - 14:33:05 GMT