Re: Seinfeld, Transformation, Fair Use

On Sat, 28 Aug 1999, Nick Zales <zales[_at_]execpc.com> wrote:
>
> Yes! I submit that copying up to 25% of a work should give rise
> to a rebuttable presumption of fair use. I like to copy parts of
> on-line articles and post them to e-lists. I usually copy about
> 10-20% and include the URL to the entire article. But it can be
> a pain wondering "am I copying too much." Many cyber articles on
> technology expressly state "pass this on and attribute it" but
> many do not.

The problem with this is that it really implies a certain size of work. However, works can be of almost any size. On a very large work, 10% copying may not be fair use. On the other hand, for a very small work, you may get fair use on say 30-40% or more.

This also assumes a constant level of original expression, etc. In the case of software, actual copying of say 10% of the code is probably not going to be considered fair use (assuming of course that the copying would be infringement in the first place -- i.e. after A/F/C analysis in most Circuits).

> As a judicial law clerk I saw countless instances of lawyers
> copying, word-for-word, case law language and failing to attribute
> it. This is not only plagiarism but really stupid. ...

But this has little if any relevance to fair use -- esp. since the decisions being copied are either in the public domain already (federal cases) or are impliedly licensed (state law cases).

Besides, who ever quoted (or copied) even 25% of a case in a brief?

-- 
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The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 1999 Bruce E. Hayden,all rights reserved
My work may be copied in whole or part, with proper attribution,
as long as the copying is not for commercial gain.
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Bruce E. Hayden                      bhayden[_at_]acm.org
Phoenix, Arizona                     bhayden[_at_]ieee.org
                                     bhayden[_at_]copatlaw.com