Re: on fair use, lawyers, and the law

On Fri, Jul 16, 1999, Paul Geller <pgeller[_at_]law.usc.edu> wrote:
>
> I start a new thread here to join together two separate threads:
> "Copyright & The New World Economic Order" which has effectively
> focused on fair use, and the thread on "on law and lawyers."
>
> On Thu, Jul 15, 1999, Kerry L. Konrad <k_konrad[_at_]stblaw.com> wrote:
> >
> > the problem in framing meaningful discussion in large part is defining
> > what the perceived "problem" in the subject area of the discussion is.
>
> Agree! There is a cluster of problems here. I propose to focus on
> those specific to fair use and leave for another day general problems
> of "the expense and burden" of litigation.
>
> On Thu, Jul 15, 1999, Robert C. Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
> >
> > if your specific situation is one in which it is not immediately
> > obvious that the use would be fair, you should not simply look at 107
> > and complain that it's vague; you should consult with a qualified
> > attorney who is familiar with the relevant case law and can apply
> > both the prior decisional law and the statutory factors to your
> > particular set of facts, and give you reliable legal advice regarding
> > whether your proposed use is fair or not.
>
> This remark in effect distinguishes between three types of cases:
> "easy cases" on which a non-expert subject to the law can find
> satisfactory guidance in its wording without consulting a lawyer;
> "problem cases" on which only lawyers can give reliable advice;
> and "hard cases" for which we have to go to court to get guidance.
> I submit that one criterion of good law is that its proportion of
> easy cases is high, that of problem cases middling, and hard
> cases low. As this proportion shifts toward increasing frequency
> of problem and hard cases, good law goes bad.
>
> On Wed, Jul 14, 1999, Harold Orlans <horlans[_at_]erols.com> wrote:
> >
> > Many author guidelines on fair use say, if in doubt, consult a lawyer.
>
> Indeed, the middle term of my argument is that, for fair use, the
> proportion of easy cases keeps decreasing, while the proportions
> of problem cases and hard cases keep increasing. Now, since I
> cannot prove this argument without taking extensive surveys, I leave
> it up to the participants here to judge from their own experience
> whether my purely empirical guess is right. If it is, we have a
> fair-use problem or, more accurately, a cluster of fair-use problems.
>
> On Thu, Jul 15, 1999, Kerry L. Konrad <k_konrad[_at_]stblaw.com> wrote:
> >
> > in many circumstances, individuals face similar uncertainty about
> > the judicial outcome of a dispute concerning their conduct,
> > particularly if no one else has previously engaged in that precise
> > conduct or it is a type of conduct that did not exist when the code
> > was written.
>
> To challenge the theoretical premises about language here, I'll take
> them down the slippery slope. How "precise" does the "conduct"
> referenced by the law have to be? Is legal language limited to dealing
> with one specific fact pattern after another or can it deal in broader
> concepts? To the extent that it cannot, Prof. Epstein is wrong in
> proposing "Simple Rules for a Complex World" because they will not
> work. But then democracy is at risk: the law will become complex as
> the world does, so that simple citizens will comprehend the law less
> and less and thus become incapable of judging whether it is being made
> properly on their behalf. Or else ostensibly simple law, like fair
> use, will generate increasing proportions of problem and hard cases,
> requiring increasingly frequent recourse to the legal elite.
>
> Back to practice! In the field of copyright, there are distinct
> approaches to codifying the law: the Anglo-American approach,
> and the Continental European approach. Look, for example, at
> Section 114 of the U.S. Copyright Act concerning exceptions on
> sound recordings: it is now over a dozen pages long, while
> Section 107 on fair use is a half-page long. One problem here:
> using the mushy criteria of Section 107 for all cases that it
> purports to cover is like using a rough stone to screw in screws,
> to pound in nails, and to saw wood. It is possible to give judges
> discretion, bounded by concise standards, to handle cases in which
> basic interests in privacy and freedom of expression are at stake,
> for example, cases of quotation for criticism, parody, etc. But
> group uses -- for education, research, archiving, etc. -- involve
> mainly compromises between competing social interests, on which
> the legislators owe us more guidance than cryptic references to a
> muddled case law. But there is no reason for the legislators
> to flounder in the kind of hyper-regulation that we see in much
> Anglo-American legislation. Take a look at one of the well-drafted
> European codes: the Swiss Copyright Act, for example. There is no
> model for a final and systematic solution to this cluster of
> hard problems. But there are hints on how we might do better.

Thanks to Paul Geller for a well-thought-out and well-articulated synthesis of what has gone before in these particular threads.

Bob

Robert C. Cumbow
> Graham & Dunn, P.C.
> 1420 Fifth Avenue, 33rd Floor
> Seattle, Washington 98101-2390
> Phone: 206-340-9619
> Fax: 206-340-9599
> E-mail: rcumbow[_at_]grahamdunn.com
> Website: http://www.grahamdunn.com/
>
Received on Sat Jul 17 1999 - 18:23:18 GMT