Re: Is Fair Use Dead?

Leah Theriault <wheedle[_at_]uclink4.berkeley.edu> wrote:
>
> On 3/1/98, Thomas Heide <tph21[_at_]cus.cam.ac.uk> wrote:
> >
> > This presupposes that fair use is based primarily if not completely on
> > the market failure rationale. Such a view doesn't take into account
> > that fair use is a vehicle used to promote many important societal
> > interests including comment or criticism.
>
> My point was exactly this: although fair use, on a plain reading of the
> statute, was meant to further social goals other than ensuring the
> greatest monetary return for the copyright owner, this is not the trend
> in the case law.

Hmmmmmm... I wonder why? Speaking from a not-for-profit educational perspective, could it be because there *is* no case law to speak of? I mean there appears to be virtually none although, not being a lawyer but having done enough academic research on the subject, I'm sure there are a *few.*

Could it be that nobody in academe wants to become a "test case?" Does anybody out there want to risk their professional reputation by having their name cited as a defendant in an infringement case? Or could it be that no one who has received a cease-and-desist letter wants to escalate the matter further? I mean, what financially strapped institution of higher learning wants to increase their risk management fees?

And if fair use is so dead, then how in the world could we, as a messily democratic society, have ever come up with the Fair Use Guidelines for Educational Multimedia? How is it that CONFU, for all of its apparent "failures," could have ever drafted so many thousands of words of prospective guidelines to even debate over? If fair use is so dead, then where's the funeral?

The point of all this is to suggest that the Copyright Act, history shows, has had nothing but a *chilling effect* on the production of useful case law as it pertains to nonprofit educational purposes. So how can any claim be made of a "trend" against fair use?

-- 
Glen (McKay) Gummess
AV Services Coordinator
New Mexico Junior College
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