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: 815978
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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
Slide2November 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
.
Slide3November 26, 2019
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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;
Slide4November 26, 2019
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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.
Slide5November 26, 20195
Sega and Fair Use
Slide6November 26, 20196
Xbox as Loss Leader
Slide7Source Code
November 26, 2019
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Colin’s Comp Sci Friend
Slide8Object Code
November 26, 2019
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Colin’s Comp Sci Friend
Slide9Sega 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
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Slide10Sega v. Accolade (CA9 1993)Key QuestionsHow should we understand the copying of the code that invoked the SEGA trademark?November 26, 2019
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Slide11Copying 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
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TTYN (1 of 2)
Slide12Copying 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
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TTYN (2 of 2)
Slide13Home Time-Shifting is Fair Use
November 26, 2019
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Sony, 464 U.S. 417 (1984)
Slide14And 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
Slide15November 26, 201915
Google Mission Statement
Slide16November 26, 201916
NYT (8
Oct
2004)
Slide17Google Books
November 26, 2019
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Slide18About Google Books
November 26, 2019
18
Slide19November 26, 201919
AG
Complaint (20
Sept
2005)
Slide20November 26, 201920
U.S. Copyright Office (25 Sept 2008)
Orphan Works
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Settlement (28
Oct
2008)
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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
Slide23November 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)
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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
Slide25November 26, 201925
SDNY
Opinion (22
Mar
2011)
Slide26Copying 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
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TTYN (1 of 3)
Slide27Copying the BooksDoes Google infringe the copyrights in the books?November 26, 2019
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TTYN (2 of 3)
Slide28Copying 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
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TTYN (3 of 3)
Slide29Google 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
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Slide30Search on “Intellectual Property”
November 26, 2019
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Google
Ngram
Viewer (7 Nov 2019)
Slide31Licensing and the Fourth Factor
November 26, 2019
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Authors Guild, 804 F.3d 202 (2
nd
Cir. 2015)
Slide32Licensing and the Fourth Factor
November 26, 2019
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Authors Guild, 804 F.3d 202 (2
nd
Cir. 2015)
Slide33Licensing and the Fourth Factor
November 26, 2019
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Authors Guild, 804 F.3d 202 (2
nd
Cir. 2015)
Slide34Understanding TVEyesThe Servicehttps://www.tveyes.com/
November 26, 2019
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Slide35What TVEyes
Does
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Slide36Understanding 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
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Slide37Understanding 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