Indirect Infringement and Fair Use Intro to IP – Prof Merges 2.24.10.

Indirect Infringement and Fair Use

Intro to IP – Prof Merges

2.24.10

Indirect infringement

• Acts which fall short of copyright infringement

– Instructing, guiding or facilitating infringement: inducement (e.g., landlord-music hall cases)

– Selling something which naturally or inevitably leads to infringement: e.g., an “infringement machine”

Sony v. Universal Studios

• Contributory infringement intertwined with fair use

• If no infringement by consumers (because of fair use), then no contributory infringement by Sony for selling Betamax

Time shifting vs. archiving

• Why different treatments?

• Effect on the mkt for the copyrighted work?

Factors favoring fair use

• Some program copyright owners authorize home taping, or at least acquiesce in it

• District court found time shifting at home to be “non-commercial, non-profit” activity

– P. 538

Was the district court correct?

• Yes and no

• DVD sales now a big part of movie studios’ income

• But online access is a threat . . .

“substantial noninfringing use”

• Different from, but related to, the question of whether consumers infringe at all

• Prof Menell/David Nimmer writings on this

• Brief in Grokster case; more Monday

Sec. 107. Limitations on Exclusive Rights: Fair Use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

The 4 Factors

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;(3) the amount and substantiality of the portion

used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

A different view?

• Tort law-common law perspective

• Balance harm with benefit; possible alternative designs?

Harper & Row v. Nation

• Gerald Ford Memoir

• Clear and definite financial harm: loss of $12,500 payment by Time Magazine

• Held: Reversed, Not Fair Use

“Implied Consent” Theory – p. 525

• Does this hold up in subsequent cases?

• Compare: classic defense of fair use for criticism, e.g., book reviews

Unpublished Nature of Work

• P. 526: Author’s right to control prepublication of works, creative control and financial returns . . .

• True for all time? What about long unpublished works?

First Amendment Defense

• Fair Use should be informed by First Amendment

• First Amendment protection built into copyright in idea/expression dichotomy

• First Amendment argument would eliminate market for political memoirs, etc.

Commercial Use

• Commercial uses are presumptively not fair uses

• P. 528

• “Market Failure” theory of fair use – p. 530 n.9

Wendy Gordon: Fair Use as Market Failure

1992 Amendment

“The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” – Sec. 107

AGU v. Texaco

• Copying of academic journal articles

• Exhaustive analysis of 4 factors

Judge Newman opinion

• “[I]t is sensible that a particular unauthorized use should be considered ‘more fair’ when there is no ready market or means to pay for the use, while such an unauthorized use should be considered ‘less fair’ when there is a ready market or means to pay for the use.”

• -- p. 550

Bill Graham Archive v. Dorling-Kindersley Press

• Tickets and posters – images of Dead shows

• Incorporated into Defendant’s book

Lennon v. Premise Media

• 15 second excerpt from “Imagine”

• Incorporated into film about creationism and “academic freedom”

• "I'm extremely gratified to hear that Yoko Ono's attempts to silence our little film have not succeeded and that free speech is still alive and well in America," noted Stein. "There is a culture war going on in this country, but the numbers are with the traditionalists. While a few Americans may be interested in films like Bill Maher's Religulous, Expelled is the kind of film that most mainstream/traditionalists Americans are going to most resonate with and we are looking forward to great numbers when the DVD comes out."

Companion Case

• New York State Supreme Court, Aug. 13, 2008

• Preliminary Injunction for Capitol Records denied