The End of Innovation? 323
Simone writes: "2001 has been a bad year not just for dot-coms but also for people interested in preserving the public's right to fair use of copyright materials. From the shutdown of Napster and the DeCSS case to the prosecution of Dmitry Sklyarov, federal prosecutors and U.S. courts have acted in support of copyright interests and against the public's ability to use technology to secure fair-use rights. OpenP2P.com editor Richard Koman talks about these turns of events with Lawrence Lessig." Not particularly coincidentally, Lessig has a new book coming out on this very topic.
Re:Lawrence Lessig = Wanker (Score:4, Informative)
No, it was the open relay that MIT was running. If someone is running a relay that takes all comers, and someone else is using it to send spam to my network, I'll ask the admin to deny relaying. If they won't, I'll blackhole it. If someone doesn't prevent their resources from using mine in a manner I don't want, I disallow them the right to use my resources.
The key point is I don't tell someone how to use their resources. If they want to allow relay, fine. I just won't allow them to use my resources.
Napster Fair Use? Give Me a Break! (Score:1, Informative)
Re:Definition of "Fair Use"? (Score:2, Informative)
"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- (1) the purpose and character of the use, including whether 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. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."
Those four factors are how a court determines if an otherwise infringing use (e.g., quoting a book in a book review of that book) is actually a fair use. Fair use is not really a right of the user, but a limitation on the right of the copyright holder.
However, the Supreme Court, in the 1985 case Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, stated that these four factors were not exclusive of all the things that should be considered when determining if a use is fair. The factors are a guide. In reality, any court dealing with a fair use defense is going to start with those four factors and only deviate from that analysis in exceptional circumstances.
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This post is not intended to provide legal advice.