Copyright Law Part 2 - Copyright Basics
by Terry Carroll
Part 2 - Copyright Basics.
2.1) What is a copyright?
2.2) What is "public domain?"
2.3) I just wrote a great program/novel/song/whatever. How can I
get a copyright on it?
2.4) How long does a copyright last? Does it need to be renewed?
2.5) What advantages are there to registering my work with the
Copyright Office?
2.6) How can I register a copyright with the U.S. Copyright
Office?
2.7) What advantages are there to including a copyright notice on
my work?
2.8) Can I ever use a copyrighted work without permission of the
copyright holder, or "What is 'fair use?'"
2.9) Fair use - the legal basis of the doctrine.
2.10) [reserved.]
2.1) What is a copyright?
A copyright is a right of intellectual property granted to authors
whereby they obtain, for a limited time, certain exclusive rights
to their works. In the United States, copyright is exclusively
federal law, and derives from the "copyright clause" of the
Constitution (Art. 1, sec. 8, cl. 8), which provides Congress with
the power "to promote science and the useful arts, by securing for
limited times to authors ... the exclusive right to their ...
writings."
Copyright protects only an author's original expression. It
doesn't extend to any ideas, system or factual information that is
conveyed in a copyrighted work, and it doesn't extend to any pre-
existing material that the author has incorporated into a work.
17 U.S.C. 102(b), 103.
The standard for originality is very low. "Original" in this
context means only that the work has its origin in the author.
There is no requirement that the work be different from everything
that has come before: it need only embody a minimum level of
creativity and owe its origin to the author claiming copyright.
To use an extreme example, if two poets, each working in total
isolation and unaware of one another's work, were to compose
identical poems, both of the poems would meet the originality
requirement for purposes of the copyright statute. Feist
Publications, Inc. v. Rural Telephone Service Company, Inc., 111
S.Ct. 1282, 1287-88 (1991).
In the United States, these seven rights are recognized:
1) the reproductive right: the right to reproduce the work in
copies;
2) the adaptative right: the right to produce derivative works
based on the copyrighted work;
3) the distribution right: the right to distribute copies of
the work;
4) the performance right: the right to perform the copyrighted
work publicly;
5) the display right: the right to display the copyrighted work
publicly;
6) the attribution right (sometimes called the paternity
right): the right of the author to claim authorship of the
work and to prevent the use of his or her name as the author
of a work he or she did not create;
7) the integrity right: the right of an author to prevent the
use of his or her name as the author of a distorted version
of the work, to prevent intentional distortion of the work,
and to prevent destruction of the work.
17 U.S.C. 106, 106A.
Not all of these rights apply to all types of works. For example,
the display right applies to literary, musical, dramatic and
choreographic works, pantomimes, and motion pictures and other
audiovisual works. It does not apply to sound recordings and to
architectural works. The attribution right and the integrity
right apply only to works of visual art.
Also, not all rights have the same duration: in the U.S., rights
1-5 normally have a duration of the author's life plus 50 years,
while rights 6-7 endure only for the life of the author.
These rights are not unbounded, and in the U.S., sections 107
through 120 of the copyright law catalog a series of restrictions
on the rights. Some of these restrictions are discussed elsewhere
in the FAQ (see, e.g., sections 2.8, 2.9, and 3.7).
And, by the way, many persons erroneously spell it "copywrite,"
apparently because of the association with written material. The
correct word is "copyright." It derives from an author or
publisher's right to the copy (copy here being used in the sense
that it is used in the newspaper trade: the text of an article).
2.2) What is "public domain?"
In contrast to copyright is "public domain." A work in the public
domain is one that can be freely used by anyone for any purpose.
It used to be that if a work was published without notice, it lost
all copyright, and entered the public domain. That's no longer
true, and now public domain is more the exception than the rule.
There are still a number of ways that a work may be public domain.
- The copyright may have expired (see section 2.4).
- The work might be a work of the U.S. Government; such works
can't be copyrighted (see section 3.6).
- The work might be one that can't be copyrighted. For example,
titles, names, short phrases and slogans can't be copyrighted
(37 C.F.R. 202.1(a)). Note, however, they can be trademarks.
As far as copyright law is concerned, they're public domain,
but as far as trademark law is concerned, they might be
protected.
- The copyright might have been forfeited. For example, the work
may have been published without notice prior to the change in
the law that eliminated the notice requirement (March 1, 1988,
the effective date of the Berne Convention Implementation Act,
PL 100-568, 102 Stat. 2853).
- The copyright might have been abandoned. This is pretty rare.
Abandonment requires that the copyright holder intend to
abandon the copyright, and generally requires an unambiguous
statement or overt act on the part of the copyright holder that
indicates his or her intent to dedicate the work to the public
domain. National Comics Pub. v. Fawcett Pub., 191 F.2d 594,
598 (2d Cir., 1951). A statement that anyone who wishes to may
reproduce, perform, or display the work without restrictions
might be sufficient. Simply posting it on a computer network
is not abandonment.
There is a common belief that if someone infringes a copyright,
and the copyright owner does not sue or otherwise put a stop to
the infringement, the copyright is lost and the work goes into the
public domain. There is some pre-1988 law on this (e.g., Stuff v.
E.C. Publications, 432 F.2d 143 (2d Cir., 1965) and Transgo v.
Ajac Transmission Parts, 768 F.2d 1001 (9th Cir. 1985)), but it
seems to derive mostly from the fact that the copyright holder had
acquiesced in the publication of the work without notice back when
notice was a requirement. It was the publication without notice,
and not the lack of enforcement, that actually worked to put the
work in the public domain. This is forfeiture of copyright, not
abandonment. Because the notice requirement is now gone from
copyright law, these cases don't have much weight today.
I can't find anything that supports the idea that failure to
assert a copyright against an infringer can alone lead to placing
the work in the public domain (if you have any authoritative
information on this, please drop me a note at one of the addresses
listed in the introduction). Of course, circumstances may be such
that the ability to sue a particular infringer might be waived
(e.g., a statute of limitations may expire (see section 3.4), or
if the infringer has reasonably relied to his or her detriment on
the copyright holder's failure to sue, the doctrine of laches may
bar a suit), but that's only with respect to that particular
infringer, and does not affect the status of the copyright with
respect to others.
Sometimes you'll see a program on the network accompanied by a
statement like "This program is public domain. It may be freely
distributed, but you may not charge more for it than the cost of
the media." Statements like these are contradictory. If the
program is public domain, you can do whatever you want with it,
including charging whatever you want (although you might not get
it). In this example, what the programmer really wants to do is
to retain the copyright, but provide a non-exclusive license to
copy and distribute the work, with a condition on the license that
only the cost of the media may be charged for it. In this case,
where the programmer has, in two consecutive sentences, both
declared the work to be public domain and asserted a copyright in
the work, it's unpredictable whether a court would interpret this
as abandonment.
If there is any restriction upon the use of the work, even the
restriction that it cannot be sold, the work is not public domain.
Rather, it's copyrighted, and the restrictions are essentially
limitations on a licensee using one or more of the exclusive
rights described above. For example, the restriction that a work
may only be given away for free is a limitation using the
distribution right.
Once a work is in the public domain, whether by expiration of
copyright or by expressly being dedicated to the public domain by
its copyright holder, it can never again regain copyrighted
status.
2.3) I just wrote a great program/novel/song/whatever. How can I
get a copyright on it?
Good news. You already have. In the United States, as in most
nations, a work is copyrighted as soon as it is created:
Copyright protection subsists . . . in original works of
authorship fixed in any tangible medium of expression, now
known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with
the aid of a machine or device. 17 U.S.C. 102(a).
and,
A work is "fixed" in a tangible medium of expression when its
embodiment in a copy or phonorecord, by or under the authority
of the author, is sufficiently permanent or stable to permit it
to be perceived, reproduced, or otherwise communicated for a
period of more than transitory duration. 17 U.S.C. 101.
What this means in simple terms is that as soon as you've created
your original work, it's copyrighted. Because of the "either
directly or with the aid of a machine or device" provision, it
doesn't matter whether you've printed it out, or if it's only on
your hard drive or floppy disk.
You don't need any special formalities, such as registering the
work with the Copyright Office, or providing a copyright notice
(notice stopped being a requirement when the U.S. signed the Berne
Convention and enacted Berne Convention Implementation Act in
1988; see section 4.1 for more information).
That being said, you might want to register the work and provide a
copyright notice anyway. There are certain advantages to doing so
(see sections 2.5 and 2.7).
2.4) How long does a copyright last? Does it need to be renewed?
Generally, for works created after January 1, 1978, a copyright
lasts for fifty years beyond the life of the work's author, after
which it lapses into public domain. 17 U.S.C. 302(a). If the
work is prepared by two or more authors (a "joint work"), its
copyright lasts for fifty years after the last surviving author
dies. 17 U.S.C. 302(b). For anonymous and pseudonymous works,
and for works made for hire, copyright exists for 100 years from
the date of creation, or 75 years from the date of first
publication, whichever comes first. 17 U.S.C. 302©. No renewal
is necessary or permitted.
For works to which the attribution right and integrity right apply
(see section 2.1), these rights endure only for the lifetime of
the author. 17 U.S.C. 106A(d).
For works created between 1950 and 1978, copyright lasts for 75
years from date of publication. 17 U.S.C. 304(a). Formerly,
renewal was required after 28 years; renewal was made optional in
June 1992 by P.L. 102-307, 106 Stat. 264. If the work was created
but not published prior to 1978, its copyright duration is
calculated as if it had been created on January 1, 1978. 17
U.S.C. 303.
For works created between 1922 and 1950, the copyright lasted for
28 years, renewable for another 28 (a total term of 56 years). If
the copyright was not renewed, the work lapsed into public domain.
In practice, all copyrights granted prior to 1937 lapsed at the
latest in 1992 and are now in public domain. Copyrights granted
between 1937 and 1950 continue to exist only if they were renewed,
and expire between 1993 and 2006.
2.5) What advantages are there to registering my work with the
Copyright Office?
In order to sue for infringement, with some exceptions, your work
must be registered with the Copyright Office. However, you may
register after the infringement occurs, as long as it's before
filing your lawsuit.
The advantage to registering prior to infringement is that it
allows you some additional remedies that aren't available if you
registered after infringement: namely, statutory damages and
attorney's fees. 17 U.S.C. 412.
"Statutory damages" are damages specified in the statute, as
opposed to "actual damages," which are damages that you can
demonstrate in court that you actually suffered. If you
registered your work prior to infringement, you can skip showing
any actual damage, and just elect to receive statutory damages.
17 U.S.C. 504(a).
Statutory damages for copyright infringement are $500 - $20,000,
as determined by the judge. If the infringer proves that he or
she was not aware and had no reason to believe that his or her
acts constituted infringement, the court may lower damages to as
low as $200 per infringement. On the other hand, if the plaintiff
proves that the defendant's infringement was "committed
willfully," the judge may award damages to as high as $100,000 per
infringement. 17 U.S.C. 504©.
In deciding whether to register your work, you must weigh the
probability of an infringement action (and the advantages of
attorney's fees and statutory damages in such an action) against
the $20 cost of registration.
CAVEAT: On February 16, 1993, the Copyright Reform Act of 1993
was introduced in both houses of the 102nd Congress (H.R. 897 in
the House of Representatives and S.373 in the Senate). If the
bill passes, much of the information in this entry will be
rendered incorrect. Specifically, the bill would, among other
things, remove the requirement for registration prior to bringing
suit, and would remove the restrictions on statutory damages that
are described above.
2.6) How can I register a copyright with the U.S. Copyright
Office?
To register a copyright, file the appropriate form with the U.S.
Copyright Office, including the payment for registration costs
($20).
For most types of work being published in the United States, two
copies of the work being registered must be deposited with the
Copyright Office for the use of the Library of Congress. Strictly
speaking, the deposit is not a requirement for copyright.
However, failing to make the deposit at time of publication can
result in fines. Some works are exempt from the deposit
requirement.
Registration forms may be ordered by calling the Copyright Office
Hotline (see section 5.1). When the answering machine answers,
leave a message with your name and address, identifying the
material you are ordering. Ask for the form either by form
number, or by Copyright Office Information Package number. A
Copyright Office Information Package is a collection of
information on registering copyright for a particular type of
work. It includes the appropriate forms, instructions for
completing them and other useful information.
Here is a list of commonly requested forms and Copyright Office
Information Packages, arranged by type of copyrighted work:
- Books, manuscripts and speeches and other nondramatic literary
works: Form TX, Package 109
- Computer programs: Form TX, Package 113
- Music (sheet or lyrics): Form PA, Package 105
- Music (sound recording): Form SR, Package 121
- Cartoons and comic strips: Form VA, Package 111
- Photographs: Form VA, Package 107
- Drawings, prints, and other works of visual arts: Form VA,
Package 115
- Motion pictures and video recordings: Form PA, Package 110
- Dramatic scripts, plays, and screenplays: Form PA, Package 119
- Games: Form TX, Package 108
2.7) What advantages are there to including a copyright notice on
my work?
As noted in section 2.3, under U.S. law, a work is copyrighted as
soon as it is created. No notice is required to retain copyright.
While most of the world has operated this way for some time, this
is a comparatively recent change in U.S. copyright law, as of
March 1, 1988, the effective date of the Berne Convention
Implementation Act, PL 100-568, 102 Stat. 2853 (See sections 4.1
and 4.2 for a discussion of the Berne Convention).
Although notice is no longer a requirement, there are still some
sound reasons for using one anyway.
If you include a copyright notice on a published copy of your work
to which the defendant in an infringement suit had access, he or
she may not plead "innocent infringement" (i.e., that he or she
was not aware and had no reason to believe that his or her acts
constituted infringement, the so-called "innocent infringement"
defense) in mitigation of actual or statutory damages. 17 U.S.C.
401(d), 402(d).
Unlike the decision of whether to register your work, this is a
no-brainer, since it's simple and free: just include a notice on
every published copy of the work.
A proper copyright notice consists of three things: 1) the letter
"C" in a circle (called, logically enough, the "copyright
symbol"), or the word "Copyright," or the abbreviation "Copr."; 2)
the year of first publication; 3) the name of the copyright owner.
17 U.S.C. 401(b).
Using "(C)" in place of a copyright notice is not a good idea. To
the best of my knowledge, no court has expressly ruled one way or
another whether "(C)" is a sufficient substitute for a copyright
symbol. One case, Videotronics v. Bend Electronics, 586 F.Supp.
478, 481 (D. Nev. 1984), implies that it is not sufficient;
another, Forry v. Neundorfer, 837 F.2d 259, 266 (6th Cir., 1988),
implies that it might be. While courts are generally lenient in
allowing for what makes up a valid notice, it's best to be
squarely within the statute. If you can't make a copyright
symbol, either spell the word out, or use the "Copr."
abbreviation.
As a side note with regard to international protection, the
Universal Copyright Convention requires that, at a minimum, all
signatory nations that require notice must accept the C-in-a-
circle variant; it does not provide a provision for a spelled out
variant. On the other hand, most nations that have signed a
copyright treaty are signatories to the Berne Convention, which
forbids requiring a notice as a condition to copyright. See
section 4.1 for details.
For a sound recording, the notice requirement is similar, except
that it uses the letter "P" (for "Phonorecord") in a circle, plus
the year and owner name. 17 U.S.C. 402(b). The statute does not
provide a spelled out alternative to the P-in-a-circle.
2.8) Can I ever use a copyrighted work without permission of the
copyright holder, or "What is 'fair use?'"
In any analysis of copyright, it's important to remember the law's
constitutional purpose: to promote science and the useful arts.
"Fair use" is a doctrine that permits courts to avoid rigid
application of the copyright statute when to do otherwise would
stifle the very creativity that copyright law is designed to
foster. The doctrine of fair use recognizes that the exclusive
rights inherent in a copyright are not absolute, and that non-
holders of the copyright are entitled to make use of a copyrighted
work that technically would otherwise infringe upon one or more of
the exclusive rights. Although fair use originated "for purposes
such as criticism, comment, news reporting, teaching, ...
scholarship, or research," it also applies in other areas, as some
of the examples below illustrate. However, courts seem more
willing to accept an assertion of fair use when the use falls into
one of the above categories.
Perhaps more than any other area of copyright, fair use is a
highly fact-specific determination. Copyright Office document
FL102 puts it this way: "The distinction between 'fair use' and
infringement may be unclear and not easily defined. There is no
specific number of words, lines, or notes that may safely be taken
without permission. Acknowledging the source of the copyrighted
material does not substitute for obtaining permission."
The document then quotes from the 1961 Report of the Register of
Copyrights on the General Revision of the U.S. Copyright Law.,
providing the following examples of activities that courts have
held to be fair use:
- Quotation of excerpts in a review or criticism for purposes of
illustration or comment;
- Quotation of short passages in a scholarly or technical work
for illustration or clarification of the author's observations;
- Use in a parody of some of the content of the work parodied;
- Summary of an address or article with brief quotations, in a
news report;
- Reproduction by a library of a portion of a work to replace
part of a damaged copy;
- Reproduction by a teacher or student of a small part of a work
to illustrate a lesson;
- Reproduction of a work in legislative or judicial proceedings
or reports;
- Incidental and fortuitous reproduction in a newsreel or
broadcast, of a work located in the scene of an event being
reported.
Document FL102 is included in Copyright Office information kit 102
("Fair Use"), which can be ordered from the Copyright Office (see
section 5.1).
Carol Odlum <[email protected]>, a free-lance editor, has
provided a set of guidelines used by one publisher as rules of
thumb. These certainly have no legal force, but it's instructive
to note at least one publisher's interpretation of what "fair use"
means in the real world. The publisher uses the following
criteria for determining when permission of the copyright holder
must be sought in order for the work to be used:
- Prose quotations of more than 300 words from a scholarly book.
(If a source is quoted several times for a total of 300 words
or more, permission must be obtained.);
- Prose quotations of more than 150 words from a popular,
general-market book;
- Prose quotations of more than 50 words from a scholarly
journal;
- Quotations of more than 2 lines of poetry or lyrics;
- Quotations of more than 1 sentence from a popular magazine or
newspaper;
- Quotations of any length from letters or other personal
communications, interviews, questionnaires, speeches,
unpublished dissertations, and radio or television broadcasts.
- Illustrations -- including drawings, graphs, diagrams, charts,
maps, artwork, and photographs -- created by someone else;
- Music examples of more than 4 measures;
- Tables compiled by someone else.
2.9) Fair use - the legal basis of the doctrine.
Section 2.8, above, describes fair use in a nutshell. This
follow-on entry provides a more detailed description of the
doctrine for those interested in the nuts and bolts.
There are four factors used to decide whether a particular use of
a copyrighted work is a fair use:
(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.
17 U.S.C. 107.
The remainder of this answer discusses how each of these factors
has been interpreted.
(1) The purpose and character of the use: In considering the
purpose and character of the use, courts have looked to two
characteristics of the use: whether the use is commercial and,
somewhat less frequently, whether the use is a "productive" one.
If the copyrighted work is being used commercially, e.g., all or
part of a copyrighted drawing being used in a commercially
published book on drawing techniques, that's a strike against it
being fair use. On the other hand, if the same drawing were used
in a non-profit school to teach children to draw, then this factor
would be in favor of finding a fair use. Most situations are
somewhere in between. That is, a use might not be commercial, but
it's not necessarily non-profit educational, either.
Note, though, that the statute does not command this
"commercial/non-profit educational" balance, and not all courts
use it, at least not by itself. Commercial use might be forgiven
if the use is characterized as a "productive" or "transformative"
use, i.e., a use of the material that interprets or otherwise adds
value to the material taken from the copyrighted work. See
Consumers Union v. General Signal Corp., 724 F.2d 1044, 1047 (2nd
Cir. 1983) (noting that the use of one of Consumer Report
magazine's reviews of a vacuum cleaner in an advertisement was a
fair use, in part because the purpose and character of the
advertisement was in part to educate consumers). The Supreme
Court has noted that the distinction between "productive" and
"unproductive" uses is not wholly determinative, but is helpful in
balancing the interests. Sony Corp. v. Universal City Studios,
464 U.S. 417, 451 n.40 (1983).
(2) The nature of the copyrighted work: If the work being used is
one that is factual or functional in nature, then that's a point
in favor of use of that work being a fair use. That's because
copyright isn't available for facts themselves, and the courts
recognize that it's kind of dumb to force someone with a newspaper
clipping to completely rewrite it to avoid infringement (besides,
a paraphrase is still an infringement, because it qualifies as
creating a derivative work, even if it's not a direct copy). If
the work is a fictional or artistic one, though, taking the work
is taking much more than any underlying facts. A fictional or
artistic work is more expressive than a factual one, so the
copyright (which is designed to protect expression) is stronger.
Even in factual works, however, where the portion used includes
subjective descriptions whose power lies in the author's
individualized expression, this factor might go against a finding
of fair use, if the use exceeds that necessary to disseminate the
facts. See Harper and Row v. Nation Enterprises, 471 U.S. 539
(1985) (finding no fair use for infringement of former U.S.
President Ford's memoirs despite its factual content).
Another point that's often examined in looking at the nature of
the copyrighted work is whether the work has been published.
Courts will generally consider a use of an unpublished work as
more likely to infringe than a similar use of a published work.
Harper and Row v. Nation Enterprises, 471 U.S. 539, 564 (1985).
This is for two reasons. First, the first publication is often
the most valuable to the copyright holder. Second, it affects the
copyright holder's ability to choose not to publish the work at
all. See Salinger v. Random House, 811 F.2d 90, 97 (2nd Cir.
1987).
As with the first factor, while the "fact/fiction" balance and
"published/unpublished" balance are two of the most common, they
are not commanded by the statute, which only requires considering
the "nature of the copyrighted work." For example, in Sega v.
Accolade, 977 F.2d 1510, 1525 (9th Cir., 1993), the Court of
Appeals noted that the nature of most computer programs
distributed in object code is that the functional (and therefore
unprotected) elements cannot be discerned without disassembly.
This supported the court's opinion that, in certain limited
instances, disassembling of a competitor's product to find
interface information that cannot be obtained in any other way is
a fair use of the work, despite the fact that code disassembly
necessarily involves making a copy of the copyrighted program.
(3) The amount and substantiality of the portion used in relation
to the copyrighted work as a whole: This appears simpler than it
really is. On the face of it, it means that if you incorporate
95% of a copyrighted work into another work, it's a lot less
likely to be a fair use than if you take only a small portion,
say, 5%. And that's true. However, assessing this factor is a
bit more complex than that simple statement. Even if only a small
portion of the work is used, if that portion is "qualitatively
substantial," e.g., if the portion used is essentially the heart
of the work, that use will be deemed to have been "substantial,"
and could go against a finding of fair use. See Harper and Row v.
Nation Enterprises, 471 U.S. 539 (1985) (finding no fair use for
infringement of former U.S. President Ford's memoirs, where the
portion used (which described Ford's decision to pardon former
President Nixon) included "the most interesting and moving parts
of the entire manuscript"), and Roy Export Co. v. Columbia
Broadcasting System, 503 F.Supp. 1137 (S.D.N.Y. 1980) (taking of
55 seconds out of 89-minute film deemed "qualitatively
substantial").
To confuse matters further, some courts have (probably
erroneously) interpreted this factor by looking at what percentage
of the work _using_ the material is composed of material from the
copyrighted work, rather than what percentage of the copyrighted
work was used. See, e.g., Association of American Medical
Colleges v. Mikaelian, 571 F.Supp. 144 (E.D. Pa, 1983), aff'd 734
F.2d 3 (3rd Cir., 1984), aff'd 734 F.2d 6 (3rd Cir., 1984). While
this interpretation is probably erroneous, it's worth bearing in
mind that, at least in one judge's courtroom in the Eastern
District of Pennsylvania, that's how the statute will be
interpreted.
(4) The effect of the use upon the potential market for or value
of the copyrighted work: The U.S. Supreme Court has stated that
this factor is "undoubtedly the single most important element of
fair use." Harper and Row v. Nation Enterprises, 471 U.S. 539
(1985). The late Professor Melvin Nimmer, in his treatise on
copyright law, paraphrased it, "Fair use, when properly applied,
is limited to copying by others which does not materially impair
the marketability of the work which is copied." Nimmer on
Copyright, section 1.10[D]. If the use impacts the market for the
work, the use is less likely to be held to be a fair use.
Note also that the weighing is of the impact on the potential
market, not on the actual market. For example, although Playboy
magazine does not distribute its pictures in machine-readable
form, it may choose to do so in the future. One might argue that
digitizing a picture and posting it on the net does not impact the
current market for the magazine originals. However, it impacts
the potential (but currently non-existent) market for machine-
readable copies. Because there is an impact on the potential
market, an analysis of this factor in such a situation would not
support a finding of fair use.
If all this sounds like hopeless confusion, you're not too far
off. Often, whether a use is a fair use is a very subjective
conclusion. In the Harper and Row case cited above, for example,
the Supreme Court was split 6-3. In the famous "Betamax case,"
Sony v. Universal City Studios, 464 U.S. 417 (1984) (in which the
Supreme Court found that off-air non-archival videotaping of
broadcast television was a fair use), the split was 5-4. In both
of these cases, the District Court ruled one way (no fair use in
Harper and Row, fair use in Sony) and was reversed by the Court of
Appeals, which was then itself reversed by the Supreme Court.
This goes to show that even well-educated jurists are capable of
disagreeing on the application of this doctrine.
2.10) [reserved.]
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