Re: Copyright & The New World Economic Order

On Mon, 19 Jul 1999, Harold Orlans <horlans[_at_]erols.com> wrote
>
> I find it astonishing that so many people delight in a vague law and
> declare that nothing can be done to clarify it. The average citizen
> does not have to consult a lawyer or wait for a court's "fact specific"
> determination to know it is illegal to kill, steal, kidnap, speed,
> punch someone in the nose, or burn down a house. Due process will
> still be needed to determine the facts and any mitigating factors in
> such a case. Borderline cases always exist.
>
> But apparently the parties at interest and their lawyers can agree on
> NO clear minimal provision setting forth the fair (legal) and/or unfair
> (illegal) use of ANY copyright source. Or might they agree if they
> tried?

1. The statute was an attempt to clarify what was even murkier judge-made law.
2. There are conflicting interests involved and the Congress and the courts weigh those conflicting interests in setting the standards.
3. Creating a bright-line test with its concomitant relative certainty and predictability sometimes is preferable to creating a multi-factor test with factors that can cut different ways and sometimes both ways. But sometimes it is not.
4. It is not fair to say that one can never tell whether use without permission is fair or not. There are many, many instances where the asserted use is undeniably fair use and many, many instances where the asserted use would not be fair use. But, with the multi-factor test, and the changing technologies and the increasing value of copyright (or at least the perceived increasing value), there are many new challenges to be faced and many, many gray areas.
5. Fair use is a policy-based decision about drawing a line between legal non-licensed use and illegal non-licensed use. There is nothing a priori about it. The Congress could have said that all use for educational purposes is fair use. (There are obvious problems with that rule - but it could have become the rule.) Or Congress could have exempted course packs. Or Congress could have exempted the internet altogether. Or any number of similar relatively bright line tests could have been adopted. But a bright line does not mean that it is more fair or that it balances the competing interests properly.
6. Lack of predictability and lack of consistency of application are problems. But ambiguity and uncertainty are inherent in all parts of the law, as they are in all arts (including medicine, engineering, and even now math and physics) and as they certainly are in all aspects of human social interaction.
7. The average person does not need to consult a lawyer about the crimes you mentioned because the average person is familiar with certain bedrock principles of criminal law in a way the same average person is not familiar with most law. But I have been in court when a judge, having previously issued a restraining order against a man prohibiting him from beating his wife was astonished to hear from the man the following response to an instruction from the judge that he was not to beat his wife when she disobeyed him, when she burned dinner, when she was late, when he was drunk, (and a litany of about 10 other things): the man asked, in all seriousness, "Well, then when can I beat her?" He perceived that beating his wife was perfectly acceptable and was amazed to find out that the law was to the contrary.
8. Among the matters which the "average person" should know are infringements of copyright without consulting a lawyer:
9. xeroxing an entire book for a friend.
10. copying CDs and selling or giving them to others
11. charging admission to see a rented video
12. copying a sporting event and redistributing it - or else they have never listened to the copyright claim accompanying every sporting event
13. copying and distributing copies of software they don't own the copyright in
14. using an article for a course pack without permission

    and so on.

9. Among the matters which the average person should know are permitted

    uses or fair use include:

1. giving or selling the book to someone else
2. listening to the CD with friends at a party at home
3. playing the video at home - at a party
4. time shifting a sporting event by use of videotape
5. letting someone else use their computer with the software on it
6. reading an article one day and using it the next in class without first obtaining permission

    and many more.

But there are a great many gray areas.

One reason for the test being as it is is that it must be general - one cannot list all possible circumstances - and one cannot foresee all possible circumstances.

Another problem with the request is that you are asking language do to something it really cannot do - eliminate ambiguity and vagueness and open-endedness.

The Old Testament says "Thou shalt not kill." But it also requires stoning to death. How does one square these two instructions? It is ok under US law to kill someone in self defense. So even the most certain of laws carries with it ambiguity, exceptions, limitations.

--
Steven D. Jamar
Professor of Law
Director LRW Program
Howard University School of Law
2900 Van Ness Street NW
Washington, DC  20008

vox:  202-806-8017   fax:  202-806-8428
email:  sjamar[_at_]law.howard.edu

The elaborate argument ... does not need an elaborate answer.

Oliver Wendall Holmes