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Class  16 Copyright Autumn 2019 Class  16 Copyright Autumn 2019

Class 16 Copyright Autumn 2019 - PowerPoint Presentation

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Class 16 Copyright Autumn 2019 - PPT Presentation

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

2019 november books google november 2019 google books fair work copying shows book fourth key service authors ttyn snippets

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Slide1

Class 16Copyright Autumn 2019Fair Use

Randal C. Picker

James Parker Hall Distinguished Service Professor of Law

The

Law School

The University of Chicago

Slide2

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

.

Slide3

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;

Slide4

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.

Slide5

November 26, 20195

Sega and Fair Use

Slide6

November 26, 20196

Xbox as Loss Leader

Slide7

Source Code

November 26, 2019

7

Colin’s Comp Sci Friend

Slide8

Object Code

November 26, 2019

8

Colin’s Comp Sci Friend

Slide9

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

Slide10

Sega v. Accolade (CA9 1993)Key QuestionsHow should we understand the copying of the code that invoked the SEGA trademark?November 26, 2019

10

Slide11

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)

Slide12

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)

Slide13

Home Time-Shifting is Fair Use

November 26, 2019

13

Sony, 464 U.S. 417 (1984)

Slide14

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

Slide15

November 26, 201915

Google Mission Statement

Slide16

November 26, 201916

NYT (8

Oct

2004)

Slide17

Google Books

November 26, 2019

17

Slide18

About Google Books

November 26, 2019

18

Slide19

November 26, 201919

AG

Complaint (20

Sept

2005)

Slide20

November 26, 201920

U.S. Copyright Office (25 Sept 2008)

Orphan Works

Slide21

November 26, 201921

Settlement (28

Oct

2008)

Slide22

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

Slide23

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)

Slide24

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

Slide25

November 26, 201925

SDNY

Opinion (22

Mar

2011)

Slide26

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)

Slide27

Copying the BooksDoes Google infringe the copyrights in the books?November 26, 2019

27

TTYN (2 of 3)

Slide28

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)

Slide29

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

Slide30

Search on “Intellectual Property”

November 26, 2019

30

Google

Ngram

Viewer (7 Nov 2019)

Slide31

Licensing and the Fourth Factor

November 26, 2019

31

Authors Guild, 804 F.3d 202 (2

nd

Cir. 2015)

Slide32

Licensing and the Fourth Factor

November 26, 2019

32

Authors Guild, 804 F.3d 202 (2

nd

Cir. 2015)

Slide33

Licensing and the Fourth Factor

November 26, 2019

33

Authors Guild, 804 F.3d 202 (2

nd

Cir. 2015)

Slide34

Understanding TVEyesThe Servicehttps://www.tveyes.com/

November 26, 2019

34

Slide35

What TVEyes

Does

November 26, 2019

35

Slide36

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

Slide37

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