Re: INFO/NYT: DISCUSS: The Future of the Internet

(a listmember privately asked some very good questions in response to my prior post in this thread, so I am responding here because I thought they would be a good discussion point, but because it was sent privately, I am deleting the posters identity)

> > Even if only one person engages in original expression because of the
> > protection afforded by copyright law, that's enough for me to believe
> > its worthwhile.
>
> What if only one person refrains from engaging in an original expression
> because of copyright law?
>
> For example, a scholar who is critical of a book, but whose publisher
> says the quotation she needs is too long for fair use (publishers
> typically use easy to interpret quantity standards) and needs a
> release, but the copyright holder of the other book is unwilling to
> give it. Real case. I think it's fair use, but the publisher won't
> take the risk. So we don't publish. I don't see how "I'd just
> choose another copyrighted work" applies.

This is a valid point, but my scale tips in the other direction (explained in a separate post). I think U.S. copyright law makes a not-too-objectionable attempt to allocate these risks between the two parties. Once permission is denied, the publisher has at least three choices in increasing order of risk: (i) not use the quote at all and publish (note that in this case, copyright law has only succeeded in suppressing the *copying* of a pre-existing work, **not** the suppression of original expression); (ii) use a shorter quote that is within its acceptable risk level for fair use; or (iii) publish despite the refusal to consent.

In case (iii) the publisher whose work was used has to make a substantial decision whether to sue (and risk loss, bad publicity, and fees), or to let it go. A host of factors would go into that decision, including at least analysis of the likelihood of success in the face of a fair use defense (you say this work was critical of the published work, so fair use is clearly implicated), cost/benefit, bringing undue attention to the critical work, and so forth. I can tell you that in advising someone to commence a copyright case, there are many risks that the client must take into account before proceeding, and none of the clients I have advised have taken it lightly at all. So, even in the absence of permission, a risk taking author or publisher will still publish (it happens every day).

> Or another real case. My young son is excited by fantasy roleplay
> games (MUDs), and wants to create a game for his friends based on
> the universe of a popular author. Being well schooled in copyright
> law, he knows about derivative works, so has requested permission
> from the author, but has received no response. Ergo, he isn't
> writing the description of the universe he is envisioning.

You say (importantly) that he wants to "create a game for his friends **based on** the universe of a popular author" (emphasis added). Yes, based on the sketchy facts presented here, it seems to impact the adaptation right under 106. Your son, however, is not engaged entirely in original expression (he is not creating a new universe, a novel, original universe), he is extending a work already in existence. This is what copyright law is designed to protect. Why should some one have the right to take a book and make a game out of it without obtaining permission from the author who was the original creator of the universe? Why doesn't the author develop something new and original? The answer is simple. I'll bet the book was at least moderately successful, and the person creating the adaptation of it hopes to capitalize on the book's success. It has always seemed fair to me that the person making the adaptation be required to pay a reasonable license fee to the original author. If the author demands too high of a fee, then we (the public) will not have a game derived out of the book. But that likewise is not too troubling to me, because all that has been suppressed is the slightly original adaptation of a pre-existing work, *not* new original expression (which is what I am interested in).

best regards, mike oliver
Bowie & Jensen, LLC
<mikeoliver[_at_]home.com> Received on Thu Aug 19 1999 - 03:22:04 GMT