Re: Leaning the other way in Princeton v. MDS

At 8:26 AM 2/29/96 -0500, Jonathan Franklin wrote:
>
> I just heard an excellent talk by Ms. Kornfield that touched on this
> issue. The judges' questions followed a neat line from students
> copying to professor copying to professor's son copying to copyshop
> copying. As long as the copyshop "just pushed the button" and charges
> per page, how can you distinguish between the son and the copyshop?
> It seems clear to me that duplicating the work (charging equally for
> blank pages, PD pages, and protectable pages) is easily severable from
> the use by the students and that there is no reason to permit a suit
> against the copyshop if you would not permit one against the professor
> or professor's son for charging solely for labor and materials.

The problem I have with this argument is that you can always construct a scenario in which the end use is fair, and thus the agent serving that end use is not infringing. For example, I don't think you'd disagree that I might go to the library, and copy by hand the collected works of a favorite poet, whose work I can't afford to purchase. Certainly the poet isn't going to sue me because the damages are de minimus. And it didn't, as the Princeton court emphasized, represent a lost sale because I couldn't afford to buy the work anyway. So now that we're agreed that the law doesn't prevent me from copying poetry out of a library book by hand, how do we prevent under your analysis someone from scanning the work and distributing in a $19 CD containing the collected works of all the poets of the 20th Century.

> The "market for permission fees" only exists because people were
> willing to pay to avoid the threat of litigation. The market created
> by threat of litigation (in the academic community) should not be used
> to make legal actions illegal at a later date even if they have become
> the status quo. This would create an environment where economic power
> would in effect determine the law.

I suppose you could say that the market for anything only exists because people would rather pay for it than risk the consequences of stealing it. The market for permission fees exists because sec. 106 gives to authors the exclusive right to copy, distribute and make derivatives from their works. This is a sort of chicken and egg issue: which came first, the lawyers or the law?

J. Noble
<jnoble[_at_]dgs.dgsys.com> Received on Sat Mar 02 1996 - 13:34:03 GMT