Re: Fair use / fair dealing - a fantasy?

[Sandy Thatcher <sgt3@psu.edu>]

I respectfully disagree with our moderator over her flat assertion
under #2. The larger question at issue here is the preemption of
state law (governing contracts) by federal copyright law. As it turns
out, on further researching the issue, I find that neither Ann nor I
am right, at least in asserting our conflicting positions confidently
as reflective of judicial reality.

A good discussion of the issue occurs in the authoritative NIMMER ON
COPYRIGHT, sec. 101(B)(1), which begins with the general statement
that "contract-based rights themselves are typically not subject to
preemption," but then goes on to argue that where the subject matter
of the contract coincides with the exclusive rights enumerated in
sec. 106 of the Copyright Act, preemption should be upheld. That is
Nimmer's own view. However, in his discussion of a number of cases,
especially involving shrinkwrap licenses, he shows that a number of
higher-level courts have disagreed with his analysis, notably the 7th
Circuit Court of Appeals in  ProCD v. Zeidenberg (1996), the 1st
Circuit in Bowers v. Baystate Techs. (2003), and the 8th Circuit in
Davidson & Assocs. v. Jung (2005), which all held that breach of
contract negated the fair use defenses of the defendants. Nimmer
cites some other cases tending in the opposite direction, including
one where the opinion was written by Judge Richard Posner. Overall,
though, it seems pretty clear that, like much else in copyright, this
is still a matter that has not reached any final resolution in the
courts, there having been no Supreme Court ruling on it yet.

I would also question Ann's recommendation of a license (under #4)
that gives publishers only nonexclusive rights. Such rights, under
the law, do not entitle the owner of them to sue for infringement.
Hence any publisher accepting such a license would have no legal
ground on which to defend the economic investment in the publications
where such nonexclusively licensed materials appeared. As a
university press director, I would consider it irresponsible to put
my university in a position of not being able to make good on its
economic investment in our journals by thus giving up the right to
contest infringements of the copyright in their contents.


> Moderator's note:  I suspect that the correspondents on this
> topic are speaking about slightly different things and all are to
> that extent correct:
>
> 1.  If an author transfers all rights under copyright to a
> publisher or anyone else, then s/he has also transferred the
> rights of 'distribution,' which then belong to the new owner.
>
> 2.  The rights of fair use (in the US) remain for all including
> the author.
>
> 3.  These rights, as we all know, are generally defined in
> Section 107 of the US Copyright Act.  And we all know that the
> specifics and boundaries of fair use can be particularly in
> dispute given new communications technologies.
>
> 4.  If the author has signed some other type of agreement, other
> than full transfer, then that agreement will govern the rights of
> the two parties.  These agreements are changing shape.  (The
> LIBLICENSE web site, for example, was the first to mount in 1997
> a simple Author License -- to the publisher -- which retains all
> copyright rights for the author but gives the publisher the
> necessary non-exclusive rights required for publication in a
> journal.)
>
> Ann Okerson
Sanford G. Thatcher, Director
Penn State University Press
USB1, Suite C
820 N. University Drive
University Park, PA 16802-1003
e-mail: sgt3@psu.edu
Phone: (814) 865-1327
Fax: (814) 863-1408
http://www.psupress.org

"If a book is worth reading, it is worth buying."-John Ruskin (1865)