Class 16 Copyright Autumn 2019 Fair Use Randal C Picker James Parker Hall Distinguished Service Professor of Law The Law School The University of Chicago November 26 2019 2 107 Limitations on exclusive rights Fair use ID: 771263
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Class 16Copyright Autumn 2019Fair Use Randal C. Picker James Parker Hall Distinguished Service Professor of Law The Law School The University of Chicago
November 26, 2019 2 107. 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 .
November 26, 2019 3 107 (Cont.) In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include‑‑ (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
November 26, 2019 4 107 (Cont.) (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.
November 26, 20195 Sega and Fair Use
November 26, 20196 Xbox as Loss Leader
Source Code November 26, 2019 7 Colin’s Comp Sci Friend
Object Code November 26, 2019 8 Colin’s Comp Sci Friend
Sega v. Accolade (CA9 1993)Key QuestionsWhy did Accolade want to copy Sega’s work? Does that matter?Should the fact that the copying produced an intermediate work rather than the final work matter? November 26, 2019 9
Sega v. Accolade (CA9 1993)Key QuestionsHow should we understand the copying of the code that invoked the SEGA trademark?November 26, 2019 10
Copying TV Shows IHypoIt is the year 1976 and I buy a Sony Betamax so that I can record TV shows and watch them later.Do I infringe the copyrights in the TV shows when I make those recordings? November 26, 2019 11 TTYN (1 of 2)
Copying the InternetHypoIt is the year 1998 and Google builds a search engine to copy the InternetThey create a searchable text index and display snippets in response to queries.Does Google infringe the copyrights in content that it copies? November 26, 2019 12 TTYN (2 of 2)
Home Time-Shifting is Fair Use November 26, 2019 13 Sony, 464 U.S. 417 (1984)
And the Internet?Perfect 10, 508 F.3d 1146 (9th Cir. 2007)“We conclude that Google is likely to succeed in proving its fair use defense and, accordingly, we vacate the preliminary injunction regarding Google’s use of thumbnail images .” November 26, 201914
November 26, 201915 Google Mission Statement
November 26, 201916 NYT (8 Oct 2004)
Google Books November 26, 2019 17
About Google Books November 26, 2019 18
November 26, 201919 AG Complaint (20 Sept 2005)
November 26, 201920 U.S. Copyright Office (25 Sept 2008) Orphan Works
November 26, 201921 Settlement (28 Oct 2008)
November 26, 2019 22 Key Elements of Settlement Digital Files Collection Rightsholders & Registry Rights License Opt Out Class Action: Key re Orphan Works Division of Project Revenues: 63% to Rightsholders , 37% to Google
November 26, 2019 23 Google’s Use of Digital Files Google Book Search Broad Other Uses: Non-Display Uses (1.91, 2.2) Key Business Models Institutional Subscriptions (1.74, 4.1) Consumer Purchases (1.32, 4.2) Advertising Revenue Model (4.4) New Revenue Models (4.7)
November 26, 2019 24 Orphan Works and the “Private” Public Domain Google Settling Parties Usually Want to Maintain Property Status Against Third Parties: Westlaw/Lexis page numbers fight Hatch Waxman patents v. generics Facilitation of Use of Orphan Works through Opt Out Class Action Scope of Releases (10.1, 10.2): Third parties excluded Active Authors
November 26, 201925 SDNY Opinion (22 Mar 2011)
Copying the BooksHypoIt is the year 2004 and Google decides to copy every book ever writtenIt provides a searchable index of the books, a text database for nonconsumptive research and also displays snippets of the books in response to searches November 26, 2019 26 TTYN (1 of 3)
Copying the BooksDoes Google infringe the copyrights in the books?November 26, 2019 27 TTYN (2 of 3)
Copying TV Shows IIHypoIt is the year 2018 and a new firm creates a service to copy all TV shows.The firm creates a searchable index of all of the words and make available snippets of the video Does the firm infringe the copyrights in the TV shows? November 26, 2019 28 TTYN (3 of 3)
Google Book Search (CA2 2015)Fair use and different usesAn index of terms in a book? In multiple books?A count of the number of terms in a book? In multiple books?Snippets from single books?Are each of these situated identically as to the four factors? November 26, 2019 29
Search on “Intellectual Property” November 26, 2019 30 Google Ngram Viewer (7 Nov 2019)
Licensing and the Fourth Factor November 26, 2019 31 Authors Guild, 804 F.3d 202 (2 nd Cir. 2015)
Licensing and the Fourth Factor November 26, 2019 32 Authors Guild, 804 F.3d 202 (2 nd Cir. 2015)
Licensing and the Fourth Factor November 26, 2019 33 Authors Guild, 804 F.3d 202 (2 nd Cir. 2015)
Understanding TVEyesThe Servicehttps://www.tveyes.com/ November 26, 2019 34
What TVEyes Does November 26, 2019 35
Understanding Fair Use in TYEyesApplying the Fourth FactorIs the TVEyes service substituting for live TV watching?Substituting for own recording of TV using a DVR or DVR service? Preventing Fox from building its own version of the service? November 26, 2019 36
Understanding Fair Use in TYEyesApplying the Fourth FactorPreventing Fox from licensing access to its content to TVEyes?Is this different than the posture of the book authors in Google Books ? November 26, 201937