Re: Fair use / fair dealing - a fantasy?

[sgt3@psu.edu]

Here is some further analysis from another lawyer, Marc Lindsey, 
who as it happens is a new member of the AAUP Copyright Committee 
for 2007/8 and is Peggy Hoon's successor at Washington State 
University, where she first prepared an excellent guide to 
copyright that Marc has later rewritten and updated. (It is the 
best medium-length guide to copyright law as it affects the 
academic community I have seen anywhere, and you can order it 
here: 
http://wsupress.wsu.edu/newsandevents/reviews/copyrightlawoncampus.htm).

As Marc's analysis (reproduced with his permission) shows, this 
is anything but a clear area of the law. I was clearly premature 
in confidently asserting that contract law trumps copyright law. 
The court opinions are mixed, and until the Supremes rule, we 
can't say for sure what is the "correct" position.

By the way, I think I said that fair use is a defense, not a 
right, though it is commonly referred to in the language of 
rights.

At 12:59 PM -0700 6/7/07, Lindsey,S Marc wrote:

>This is a highly complex debate which appears nearly as 
>controversial as fair use as you point out. I didn't get Peggy's 
>opinion in the thread and I'm not yet subscribed to the 
>liblicense list serve so I'm unable to comment on her opinion. 
>What we have to determine the legal position of this issue is 
>the opinions of the copyright law titans, Melville and David 
>Nimmer, the split opinions of a few federal courts and a law 
>review article pretty much on point in this discussion by Mathew 
>Walden that I'll share with you.
>
>You are correct in your research that the scholars proclaim that 
>federal preemption trumps the breach of contract claim of the 
>rightsholder. The premises of this conclusion are based in part 
>on the legislative history of section 301 of the Copyright Act. 
>Under the old Copyright Act, section 301 expressly listed breach 
>of contract claims would NOT be preempted. However, under the 
>new Copyright Act, the listing of breach of contract claims as 
>those matters that would not be preempted, disappeared. Thus, a 
>court might very likely consider this as the intention of 
>Congress to now make the Copyright Act - as in Section 107 (fair 
>use) - preempting the breach of contract claim of the publisher.
>
>There is also a distinction made between the line of cases that 
>uphold preemption and those cases that deny preemption. Walden's 
>article focuses on Internet contracts but that would not change 
>the analysis of a written publication agreement. He concludes,
>
>Therefore, the question is whether a claim of breach of an 
>Internet contract is equivalent to a right under copyright law 
>and comes within the subject matter of copyright law, or if such 
>claim contains an element that makes it qualitatively different 
>from a claim of copyright infringement. Many courts have 
>analyzed this preemption issue and reached different 
>conclusions. However, despite the disagreement among courts, a 
>court should find that in the case of a breach of the copyright 
>provisions of an Internet contract, federal copyright law 
>preempts the state law claim.
>
>Walden, Matthew D., Washington and Lee Law Review, Fall 2001 
><http://findarticles.com/p/articles/mi_qa3655/is_200110/ai_n8957262/pg_1>http://findarticles.com/p/articles/mi_qa3655/is_200110/ai_n8957262/pg_1>
>
>So until the issue is clarified by the Supremes or new 
>legislation, it tenuously appears that authors may assert fair 
>use to copying their work that all rights were assigned to the 
>publisher. But true fair use would seem to rule out any copying 
>for commercial purposes or even for any other purpose that 
>potentially may affect the publisher's market (4th factor of 
>fair use). I think also, that the vast majority of authors, 
>knowing that they assigned all their rights to their work to the 
>publisher, will honor the contract, because they have no clue 
>that fair use can be asserted as a defense. In real psychology, 
>they believe in the literal interpretation of the contract they 
>signed and do not have a copyright expert lawyer to advise them 
>otherwise.
>
>I realize this doesn't clarify things very much, but hopefully 
>adds to your good research.
>
>Marc

It seems, in short, that there are as many different opinions on 
this issue as there are differences of opinion about what "fair 
use" itself means. Heaven help us all!

Sandy Thatcher
Penn State University Press

>Peggy Hoon wrote:
>
>I am a lawyer.  There are a number of elements that must be met 
>before a contract is enforceable.  Certainly if an individual 
>understands that they are signing away all the rights I 
>previously enumerated, the contract would likely be enforceable. 
>I should also add that I do agree with Mr. Thatcher that fair 
>use is a right, and not a defense.

[SNIP]