[Air-L] Fair use analysis

[burkx006 at umn.edu]

Well, I dont want to bore the list, but briefly: the question of 
commericality which you raise in two of the factors is pretty much either 
irrelevant or tautological. The notion has been that if someone is taking 
parts of a work, it must have value, and so the question then is whether a 
functioning market exists for it. And courts tend to define the relevant 
market as the market for licenses of the excerpt taken.

So the relevant questions on the fourth factor are first, whether there is 
a ready mechanism to pay for the excerpts, to which I think the answer is 
probably not; and then whether the taking was transformative, that is, 
whether it provides something to the public different than the original 
work(s). I'd say the answer here to the latter question is yes, which is 
very nearly dispositive of the analysis as fair.

The broader message is that its virtually impossible for the average person 
to have any sense of whether a given use is fair or not. Obscurity is the 
real lynch pin in the system. If you get to make use of a work without 
permission, its probably not because your guess about whether it was fair 
or not was correct, its probably just because the copyright owner didn't 
notice (or didnt care) what you were doing.

DLB

On Jan 19 2008, Bill Herman wrote:

>In all due respect, Prof. Burk, please explain. I'm asking publicly 
>because, if I've given an incorrect analysis, I'd like to be corrected 
>on the record.
>
>Cheers,
>
>Bill
>
>
>>> >
>>> > Each of these factors favors a finding of fair use here. The intended 
>>> > use is for nonprofit scholarship and education. The copyrighted work 
>>> > being quoted is something (a post to a free listserv) with absolutely 
>>> > no commercial value. (Posts have intellectual value, but we've 
>>> > already given them away.) The proposed project would reproduce mere 
>>> > fractions of each post. Finally, there is no concern about the effect 
>>> > on the marketability of something with no commercial value.
>>>     
>>
>> Bill's fair use analysis is pretty much wrong, but no worries, the use 
>> is probably fair anyway. DLB
>>
>> -- Dan L. Burk Oppenheimer, Wolff & Donnelly Professor University of 
>> Minnesota Law School 229 19th Avenue South Minneapolis, MN 55455 
>> ********************************** voice: 612-626-8726 fax: 
>> 612-625-2011 bits: burkx006 at umn.edu
>>
>>   
> _______________________________________________ The 
> Air-L at listserv.aoir.org mailing list is provided by the Association of 
> Internet Researchers http://aoir.org Subscribe, change options or 
> unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org
>
>Join the Association of Internet Researchers: 
>http://www.aoir.org/
>

-- 
Dan L. Burk
Oppenheimer, Wolff & Donnelly Professor
University of Minnesota Law School
229 19th Avenue South
Minneapolis, MN  55455
**********************************
voice: 612-626-8726
fax: 612-625-2011