[Sigia-l] Site Critique Permissions

[Tal Herman]

Okay, now I see what Ziya's point is.  Ziya is focusing on why people sue
for copyright infringement and where the damages primarily are found, rather
than the particular legal arguments that might be raised in support or
opposition of the fair use defense.

It's probably true that people primarily sue because of the actual or
potential monetary damages they have suffered, and these damages may lie
primarily in reduced sales or other economic harm (e.g. loss of license
revenue).  However, it would be a mistake to say that this elevates
subsection 4 to a place of primary importance in the legal arguments that
arise regarding the fair use defense itself.

The argument for damages -- that is what harm the infringed upon party has
suffered and the compensation they are entitled to for that harm -- is
separate from the question of liability itself.  Calculating damages for
copyright infringement is a whole issue separate from the applicability of
the fair use defense and is only truly important once the the defense itself
has failed.  In fact, you may be able to obtain significant damage awards
even in the absence of a high dollar value economic harm if you've properly
registered your copyright in the item.

The evaluation in subsection 4 is not really about the quantity of damage
suffered by the infringed upon, but rather about the character of the
infringement itself.  The question that subsec. 4 asks is whether the use
made of the infringed material is likely to reduce the potential or actual
value of the original or any existing or possible future derivative works of
the original.  There is not a requirement that any specific amount of actual
damages be proven at this point in the argument, only the potential for such
damages.  It used to be that this factor was considered by the federal
courts as the most important factor for evaluation of a fair use claim, but
this viewpoint was changed significantly by the US Supreme Court in the "Oh,
Pretty Woman" case in 1994. See Campbell v. Acuff-Rose Music (92-1292), 510
U.S. 569 (1994).

Anyway, we've probably gotten deeper into this issue than the original
question really warrants.  But the discussion goes to show how complex this
issue can be.

Tal

tal herman||||||||||||||||||||||||||||||||||||
therman-at-seralat.com||http://www.seralat.com
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-----Original Message-----
From: sigia-l-admin at asis.org [mailto:sigia-l-admin at asis.org]On Behalf Of
Ziya Oz
Sent: Friday, May 17, 2002 5:06 PM
To: SIGIA
Subject: Re: [Sigia-l] Site Critique Permissions


"Tal Herman" wrote:

> With apologies to Ziya, the "crux" of the matter is not whether the
> infringer is "adversely impacting "the potential market for or value of
the
> copyrighted work".  That's only one of four statutorily described factors
in
> the 'fair use' determination.  You can lose if any one of the specified
> factors falls too far out of your favor.

The reason  I included a link to the US Code was to let people read for
themselves.

The reason I singled out subsec 4 is because that often is the most critical
one for successful litigation. People sue infringers, for the most part,
either for control or money over the IP.

'Commercial/nonprofit' of subsec 1 is pretty much immaterial for 'control':
you'll be pissed off if somebody abused your IP for intellectual reasons,
regardless of their 'commercial/nonprofit' nature. The nature of IP and
substantiality of infringement  (subsecs 2&3) are really a byproduct of the
arguments over control or money. For example, people don't sue *merely*
because the infringement was too long or was placed in a commercial outlet,
but because the effect of the infringement was loss of either control or
money.

In the end, subsec 4, the market impact, is the one opposing sides get to
argue about and where most of the successful litigants actually collect
money. That's why I said it was the crux of the matter.

Best,

Ziya


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See http://www.asis.org/CM

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