[Air-l] one last fling at fair use

[Sandra Braman]

have  been travelling, but did want to add the following thoughts to
the now aging fair use thread regarding treatment of web texts and
e-mail.  when last we heard from our hero, the statement that market
value concerns were found in regulations regarding fair use had been
made along with the suggestion that works with no market value could
therefore be taken in their entirety, which prompted the following
clarifications.

re "market value":

- this is taken into consideration in determining whether or not there
is fair use, but is NOT, as was the original point under discussion,
taken into account in determining whether or not a piece  is
copyrightable or copyrighted.

- taking a piece in its entirety is NEVER considered fair use,
irrespective of any question of market value -- unless an item is
completely out of print and is otherwise unavailable.

- the issue of market value in determining fair use is not whether or
not there is any, but the EFFECT of the use claimed covered by fair
use UPON market value.  if there is enormous market value in the work
being used but no effect upon that value in the use, it's fair use.
some market value is demonstrated by any use for which fair use is
being claimed.  if the market value is low but the effect is high,
it's not ok. etc.

- fair use is not a matter of regulation but judicial interpretation
of the statutory law of copyright, which itself is based on the
intellectual property rights provision in the us constitution.

sandra braman