Friday, October 9, 2009
My piece for Washington Legal Foundation: 'Sony v. Tenenbaum: There Are Limits To Fair Use Defense In Copyright Infringement Cases'
The Washington Legal Foundation asked me to write a short piece about fair use in the Joel Tenenbaum case. Here it is; and here's Judge Gertner's ruling granting summary judgment to the plaintiffs on Tenenbaum's fair use defense. (Her promised "full opinion to follow" has not yet been issued.) Here's the plaintiffs' motion, and Tenenbaum's opposition.
10 comments:
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Bit of a cheap shot against John Perry Barlow, don't you think? That is only identifying him as an ex-Grateful Dead lyricist, when his work for the Electronic Frontier Foundation is much more recent and relevant. Just thought it was unnecessary and a bit undermining of your position--the facts and results of the case are on your side, after all.
ReplyDelete@Anonymous: In his expert disclosure, Barlow focused on his "personal experiences in the music industry":
ReplyDeletehttp://joelfightsback.com/wp-content/uploads/855-2.pdf
And his opinions were excluded by the court as improper "philosophical pronouncements":
http://copyrightsandcampaigns.blogspot.com/2009/06/gertner-nixes-barlow-as-tenenbaum.html
Ben:
ReplyDeleteYou said "A reviewer's quotation of a few lines from a book...is a classic example of fair use..."
That's docrinally wrong. That would normally be insubstantial copying. Only when the copying gets substantial - as it often does in good reviews - would one look to the fair use doctrine.
@Anonymous 9:35:
ReplyDeleteI guess it depends on what we mean by "a few lines." I'm not sure there are any cases discussing fair use where the use is only a few lines of a book in a review (few publishers would waste their time suing). Do you have any cases saying that it's "insubstantial copying" as a matter of law where the reviewer has quoted a few lines of a book in a review?
The book reviews in the Guardian and the London Review of Books, hardly ever quote extensively from the books they are reviewing.
ReplyDeleteI have to weigh in on the side of Anon 9:35A. Provided that those few lines don't consist of the "heart of the work," it seems a classic case of de minimis copyright infringement rather than one of fair use.
ReplyDelete@Anonymous 3:02:
ReplyDeleteDo you have a case saying that copying several lines from a book is de minimis? I'm not saying you're wrong, but merely asserting it, without citation to any authority, isn't particularly helpful.
See e.g. Toulmin v. Rike-Kumler Company, 316 F.2d 232 (6th Cir. 1963) (stating that the copying of a sentence and a half from a copyrighted book is de minimis copyright infringement).
ReplyDeletecf., Bridgeport Music, Inc. v. Dimension Films, which rejects "de minimis" within the 6th Circuit, but otherwise leaves in place all other defenses.
ReplyDeleteAnon 5:25 -
ReplyDeleteBridgeport only rejects de minimis copying in the context of digital sampling of music. Nowhere in the opinion does it lay down a blanket rule, much less with respect to books or other copyrighted works, nor does it expressly overrule prior precedent in those cases.