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Doug_Pardee
Posts: 5,504
Kudos: 3,957
Registered: ‎03-09-2010

Fair use

[ Edited ]

doncr wrote:

 

I'm exempted under the Fair Use clause.  


[In the US,] aside from the Audio Home Recording Act of 1992, there is no definitive legal definition of what constitutes "fair use" and what doesn't. The courts have very studiously avoided setting anything that could be conceived of as being precedent. Fair use is decided on a case-by-case basis. You can say that you believe that what you're doing is fair use, but you can't say that it is fair use. That's up to a court to decide.

 

In order to be fair use, all four of the following factors must be considered by the court, and the court must find in favor of the person making the copies on all four factors:

  1. The purpose and character of the use, including whether such use is of 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
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

Note item #3. If you copy something in its entirety, there is no way you're ever going to get a court to rule that was fair use [personal digital copying of music in its entirety can be legal under AHRA].

 

Wordsmith
doncr
Posts: 492
Registered: ‎12-29-2010

Re: Fair use


Doug_Pardee wrote:

doncr wrote:

 

I'm exempted under the Fair Use clause.  


[In the US,] aside from the Audio Home Recording Act of 1992, there is no definitive legal definition of what constitutes "fair use" and what doesn't. The courts have very studiously avoided setting anything that could be conceived of as being precedent. Fair use is decided on a case-by-case basis. You can say that you believe that what you're doing is fair use, but you can't say that it is fair use. That's up to a court to decide.

 

In order to be fair use, all four of the following factors must be considered by the court, and the court must find in favor of the person making the copies on all four factors:

  1. The purpose and character of the use, including whether such use is of 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
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

Note item #3. If you copy something in its entirety, there is no way you're ever going to get a court to rule that was fair use [personal digital copying of music in its entirety can be legal under AHRA].

 


That's not necessarily true.  All four of the factors must be weighed against the suspected violation.  From what I've read on the subject, they carry different weights as well.

 

Again, I'm willing to be convinced.  Just show me precedent where a court has found that making an analog-to-digital copy of a book owned by a consumer for their own use has been determined to be copyright infringement.

 

What about software?  That's not covered by the AHRA and yet the courts have determined that users making copies of copyrighted software is determined to be Fair Use.  What makes you think that the courts would not decide the same way for someone making a copy of a book?  What makes literary works so special?

 

 

Distinguished Bibliophile
roustabout
Posts: 3,574
Registered: ‎03-31-2011
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Re: Fair use

"MP3.com lost a huge lawsuit for doing that with music CDs"

 

I had not realized last night that 1dollarscan is so similar to mp3.com -- I agree that by housing the material themselves they expose themselves much more.

 

My post had assumed - incorrectly, yes - that they were doing the smart thing and having you download a file, whereupon they were deleting it.  But it does look as if they are setting themselves up as a personal electronic library.

 

 

"no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Fourth Amendment to the US Constitution.
Distinguished Bibliophile
patgolfneb
Posts: 1,718
Registered: ‎09-10-2011
0 Kudos

Re: Fair use

The historical basis for fair use relys heavily on personal use. Any loan to a third party with an intermediate step, copying, electronic transmission etc has at best weak support. The ability to access your e books on multiple devices seems to satisfy this purpose. Even printing copyrighted news articles if any profit is made can be dicey. One news org. suggested that the high photo copy or prining charges of schools and libraries was a way to hide improper profits on copyrighted material, no legal action was taken but gives you an idea of how jealously they view fair use. I don't feel the balance of rights is what I would prefer but I see little reason to believe that any transfer except loaning a device you own with a copy on it can meet current legal standards.