[Air-l] one last fling at fair use

[Christian Nelson]

Sandra Braman wrote:

> - 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 law states that the amount of a work copied is only one of four
factors to be "considered" in determining fair use. It doesn't  indicate
how these factors are to be weighed, etc. So, I'm not clear what the
clipped comment is referring to. Is there some legal decision that's been
made that indicates the use of "a piece in its entirety is NEVER
considered fair use"? Until there's some judicial opionion about
terrifically short products with little or no market value, I'd be
reticent to assume this is true. But perhaps there has been such a
decision? I'd be interested to learn where to find such if it exists.

> - 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.

But if something has *no* market value, certainly its value couldn't be
affected. Do run-of-the-mill E-mails to lists, or contributions to chats,
have any market value? Perhaps some might claim there's a value to their
contributions to academic E-mail lists, but I'd suggest that isn't so for
the most part--what is expressed in those list posts I've seen would only
have value if incorporated with many other expressed ideas into a research
report, etc., and such incorporation would make the new expression, well,
a new thing. But, as noted, that's ultimately for a judge to decide.
Anyone know of judicial decisions involving the situations just mentioned?

BTW, if a documents lack of market value has no bearing on fair use
determination, wouldn't this mean that copyright was being violated every
time anyone hit reply to a post on this or any other list, thereby
appending the original post (or even just a "signficant" chunk of
it--whatever that might be) to their list contribution? I'd think that
would destroy E-mail lists.

--Christian Nelson