Re: Coursepacks

Steven Melamut <melas[_at_]ils.unc.edu> wrote:
>
> The majority in MDS also say in their dicussion regarding the
> circularity argument that "Where, on the other hand, the copyright
> holder clearly does have an interest in exploiting a licensing
> market--and especially where the copyright holder has actually
> succeeded in doing so--'it is appropriate that potential licensing
> revenues for photocopying be considered in a fair use analysis.'
> American Geophysical, 60 F. ed at 930" ... "Congress has implicitly
> suggested that licensing fees should be recognized in appropriate cases
> as part of the potential market for or value of the copyrighted work,
> and it was primarily because of lost licensing revenue that the Second
> Circuit agreed with the finding of the district court in American
> Geophysical that 'the publishers have demonstrated a substantial harm
> to the value of their copyrights through [Texaco's] copying.'"

As one of the dissenters in MDS insightfully pointed out, this is circular reasoning. It makes no sense to regard licensing revenue as part of the market for or value of the copyrighted work for the purpose of applying fair use factor #4, since if the use is fair, the owner would not be entitled to a license fee. Thus the majority view maintains that the copyright owner's entitlement to a license fee should be considered in determining whether or not the copyright owner is entitled to a license fee!

Bob Cumbow
<cumbr[_at_]perkinscoie.com> Received on Wed Jun 24 1998 - 17:19:05 GMT