Copyright 3

[BenProfane at aol.com]

Because I am both partially responsible for the discussion re copyright
infringements and a law student, I would like to add my two cents worth to
the discussion. I do not have all of the past dialogue, so please forgive any
redundancy on my part.

History of Copyright Law & Fair Use Doctrine

Art. I sec. 8 of the U.S. Const. provides the basis upon which copyrights are
afforded congressional protection: "The Congress shall have the power . . .
[t]o promote the progess of science and useful arts, by securing for limited
times to authors and inventors the exclusive right to their respective
writings and discoveries." The purpose for this protection is "to stimulate
the creation of useful works for the general public good." Harper & Row v.
Nation Enters., 471 U.S. 539 (1985). The Fair Use Doctrine, which is an
affirmative defense to a copyright infringement allegation, was set forth in
the common law by Justice Story in Folsom v. Marsh, 9 F. Cas. 342 (C.C.D.
Mass. 1841) and later adopted into statutory law in 17 U.S.C. sec. 107. The
factors to be considered in deciding whether  the Fair Use Doctrine applies
are: 1) the nature and character of the use, including wheter such use is of
a commercial nature or is for nonprofit educational purposes; 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. Sec 107 also
provides that uses of copyrighted works "for purposes such as criticism,
comment, news reporting, teaching (incld. multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright."

Two Important Decision re Present State of the Law

1. Campbell v. Acuff-Rose Music, 114 S.Ct. 1164 (1994).
    Acuff-Rose sued 2 Live Crew for copyright infringement of Roy Orbison
song, Oh Pretty Woman. Dist. Ct. granted summary judgement to 2 Live Crew:
their song "pretty woman" was a parody and made fair use of original. Ct.
App. rev'd: not fair use b/c commercial purpose, took too much of original,
and market harm caused commerical use. USSC rev'd: commercial parody is fair
use w/in meaning of 107.

2. Ameican Geophysical Union v. Texaco, 37 F.3d 881 (2nd Cir.         1994).
    Texaco scientist photocopied 8 articles from scientific and technical
journals to be used in his research. AGU, owner of copyrights to artices,
sued for copyright infringement. Dist.  Ct.