Re: a fair use query

From: Jessica Litman <litman[_at_]mindspring.com>
Date: Fri, 26 Jun 1998 10:18:38 -0400

Robert Baron <rabaron[_at_]pipeline.com> wrote:
>
> When we use the term "fair use," typically we mean the right to USE
> materials we have obtained either by borrowing or purchasing the
> copyrighted materials. With analogue materials, having access to them
> is assumed. Fair use, as I understand it, however, is meant to apply to
> the USE of these materials. When we speak of on-line access (as in H.R.
> 2281) being a right of "fair use," so that we are requesting the right
> to decrypt copyrighted materials, are we extending the notion of fair
> use to apply to something new: to ACCESS as well as to USE?

     I don't think we are. Fair use has been applied to access as well as to use before. Sega v. Acolade and cases following it, for example, privilege the technical copying and creation of derivative works required to *gain access* to the inner workings of a computer program. The fact that access was unauthorized or obtained by trick is one factor that tends to cut against fair use, see, e.g, Atari v. Nintendo; Harper & Row v. the Nation; Time v. Bernard Geis Associates; Religious Technology Center v. Lerma. In the last case, it is especially instructive to contrast the judge's analysis of Mr. Lerma's fair use claim with her analysis of the Washington Post's fair use claim.

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Jessica Litman
Professor of Law, Wayne State University litman[_at_]mindspring.com Received on Fri Jun 26 1998 - 14:19:47 GMT