Mr. Conrad-
I agree that copyright is a difficult question. Since there are no "hard and fast"
rules, and courts have looked at copyright on a case-by-case basis, it is difficult
to point fingers and say "You are violating copyright." A good example of this is
the recent Napster decision. It took a court many months of testimony, many experts,
and there is still no consensus on whether the outcome they reached was the correct
one.
>
> The NYTimes does have a hyperlink on this article that allows a registered
> reader (i.e. user of their website) to e-mail it to another address. When used,
> that link forwards the article with advertisements from the NYTimes. Whether
> the NYTimes would consider one reader forwarding the article (with adverts) to a
> second reader the same as one reader forwarding the article (without adverts) to
> an unknown number -- potentially quite large -- of readers is not a question I
> can answer definitively. But I suspect they would not consider the two "uses"
> equivalent, and they were not contemplating that as the intended use of the
> hyperlink.
>
Without a statement from the New York Times, I suspect that we won't ever know what
they intended. But until one is sure a violation has occured, wouldn't it be better
to privately suggest to the suspected "violator" to check the legality of their
actions
before repeating said action?
I am sure you know that a third party cannot try to enforce someone else's copyright
for them. However, it was noble of you to try to police the list-serv and make sure
that there are no copyright violators.
>
> Regarding the 17 USCA 107 considerations:
>
> The statute contains four considerations in evaluating "fair use," none of which
> (and no combination of which) is key to a decision under the statute. One of
> the considerations is the portion "fairly used" in relation to the copyrighted
> work as a whole. In cases where the portion is unusually small (say, one
> sentence used out of a 300 page book), the other factors are of lesser
> importance. Where the portion is quite large (certainly where, as here, it is
> 100%), the other factors are of much more importance.
>
Well, I suppose it depends on how you look at it. This article was a small drop in
the bucket of the entire New York Times on-line edition. So if you are looking at
it from the view that this article is part of New York Times' web site, then it is
only a small portion. But if you want to look at the article as a stand-alone
object, then you have a point. You did point out that the "fair use" exception
relies on several factors. This is true. However, in the statute, there is no
factor that is given more weight than other factors. They all go in _together_ to
make up the "fair use" exception.
>
> I can't predict whether "any court in the nation" would accept the suggestion
> that sending this article (about the Association of Dead People and its
> activities in Azamgarh, India) in the "spirit of the upcoming holidays"
> [possibly not an exact quote] could be characterized as, in any way,
> educationally intended. However, I suspect none would.
>
You are entitled to your opinion, and I am entitled to mine. The only way to settle
it would be to go to court or to see if a court makes a ruling on point.
>
> Whether the NYTimes has suffered any financial damage by doing this (or might
> suffer any) is another factor in 17 USCA 107, but it's not an overriding factor.
>
Once again, there are no overriding factors. The language of the statute is clear on
this.
> And Sony v University City Studios (a case about whether selling VCRs to the
> public violated anyone's copyrights in broadcast TV programs ) has next to
> nothing to say directly about this specific situation.
Well, as far as I know, no court has addressed this particular situation. That is
why we are having this discussion, no? The Sony case does have some implications,
in my humble opinion, as it says, "All reproductions of the work, however, are not
within the exclusive domain of the copyright owner; some are in the public domain.
Any individual may reproduce a copyrighted work for a fair use; the copyright owner
does not possess the exclusive right to such a use." Further, the court goes on to
say,
(a) The protection given to copyrights is wholly statutory, and, in a case like
this, in which Congress has not
plainly marked the course to be followed by the judiciary, this Court must be
circumspect in construing the
scope of rights created by a statute that never contemplated such a calculus of
interests.
I'm sure Congress didn't envision e-mail when it wrote the copyright statute.
>
>
> Saying a use was "educational and non-commercial" isn't all it takes. It's much
> more complex than that.
>
Very true. And that is why we have statutes and cases to help us sort it out. And
as we have seen, there is a lot of interest in this topic, so perhaps in the future
there will be a case specifically on-point to help guide us in the maze. Until
then, I do not presume to label others as copyright violators without a specific
case or statute to back it up.
Sincerely,
Amy Hale Janeke
-- __________________________________ Amy Hale Janeke (619)531-4437 Reference Librarian (619)238-7716 (fax) San Diego County Public Law Library ahale@sdcll.org http://www.sdcll.org
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