On 11/05/97, Glen McKay <gmckay[_at_]nmjc.cc.nm.us> wrote:
>
> Please let me make it clear: This was a scenario I posted for
> *discussion* only. I have not, nor do I intend to practice this
> scenario. Nor am I advocating that this practice be followed. Quite
> the contrary. (I'm circling the wagons here, can you see?). I *am*
> suggesting respectfully that we occasionally need to ask a simple
> question:
>
> What if?
Believe me, as a lawprof, I am very well acquainted with that question.
> > I assume that you are now abandoning the 110 exceptions and looking
> > to fair use. The market that is harmed may well be the market for
> > instructional use of the video in distance learning. The other fair
> > use factors don't look to favorable, either.
>
> Abandonment of 110 exemptions is a pretty pejorative way of putting it.
> I am *not* abandoning 110 exemptions. I am asking "what if?"... What
> if we tried this out and see if the market really is harmed? Is there a
> way to do this without taking the whole thing to court? Hasn't it been
> said in this very listserv that some folks *do not want to be a test
> case?* What if we tried a different approach for the benefit of an
> educational constituency living in a rapidly evolving technological
> environment?
I think what you fail to consider is that courts also ask "what if . . . ?" That is in fact how they determine if a market is harmed. As Jessica Litman has already pointed out, recent courts seem to be asking "What if the relevant market is the market for exactly what you produced?"
My colleague Mike Godwin points out with some frequency that a lawyer's job is to predict the future. What we are telling you, based on the statute and current cases, is that our predictions for your "what if" scenario are not favorable.
If you want to actually become a test case, I for one would be delighted to be proven wrong.
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:27 GMT