Re: Net/Music "Fair Use" Issue - OnLine Guitar Archive Needs Help!

On May 3, 1998, Michael V. LiRocchi <mikelirocchi[_at_]earthlink.net> wrote:
>
> Certainly, whether or not the use is for profit makes a big difference
> (Sup. Ct. considers it the most inportant issue)

Actually, in Campbell v. Acuff-Rose, the U.S. Supreme Court made it clear that the profit/non-profit distinction (or the commercial/non-commercial distinction) is NOT the most important issue, as the Sixth Circuit had erroneously stated. Unfortunately, some courts, such as the Ninth Circuit, seem not to have received the message.

In fair use, the court is required to balance ALL of the factors. If any of the four factors is the most important, it is the fourth factor, the effect of the use on the potential value of or market for the copyrighted work. [See Campbell; see also Harper & Row v. The Nation Enterprises.]

In this particular case, I would have to agree with Mr. LiRocchi that posting guitar "tabs" of copyrighted songs is very likely an infringement and is unlikely to be excused as a fair use.

Tyler T. Ochoa
Associate Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Mon May 04 1998 - 18:57:50 GMT