On Thu, 29 Apr 1999, Dan L. Burk <burkdanl[_at_]shu.edu> wrote:
>
> Again, as in your example of taking an entire work, charging more than
> acutal cost -- which is not simply the cost of the paper -- militates
> against fair use, but is not determinative.
True, but things are starting to get a bit incredulous once we take that leap. Its not too far to go from there to permitting photocopying of textbooks in lieu of paying for them; a place which I doubt the Congress intended or the courts would be willing to go. Making non-transformative copies of an entire work seems to weigh heavily for infringement in the fourth factor as well. There, the only way it wouldn't impact on the marketplace for the work is the impermissible, "well, I wouldn't buy it if I had to pay for it."
Although Texaco wasn't an educational case (while its predecessor Wilkins was), I tend to think that Judge Leval's opinions would be given more weight in a modern photocopying case than would Wilkins; provided that copying licenses were readily available.
Andrew C. Greenberg
<werdna[_at_]gate.net>
Received on Fri Apr 30 1999 - 11:12:31 GMT
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:35 GMT