• http://www.copybites.com Cory Hojka

    I have a redacted outline of the case available here, in case that is of interest to you or any of your readers:

    http://www.copybites.com/2006/05/second_circuit_.html

    I’m honestly surprised that this case hasn’t received much mention so far. Especially considering that the Second Circuit cited Kelly v. Arriba Soft. Corp. quite a few times in its opinion.

  • Joe Buck

    Elaborate, please. We non-lawyers could use a good explanation of why you think so.

  • http://www.absurdmusic.com gurdonark

    The Second Circuit’s result certainly shows some progress on the “fair use” front. The challenge, to choose a less dire word than “problem”, remains the unpredictability of “fair use” analysis on a case by case basis. Here a circuit decision upholds a non-journalistic commercial use as “fair use”, on grounds that make sense. But the decision does not give one the sense of certainty of what will and will not be “fair use”, due to the fact-specific nature of these inquiries.

    “Fair use” is inherently hard to define, and will be a challenge under a more enlightened regulatory regime. Although I applaud the Second Circuit decision, I am concerned that it is a step in the right direction, but not truly a comfort for those other than DK who assess these thorney issues pre-publication. The issuance of better regulations, which quasi-codify decisions such as this, might help.

    Thanks for pointing it out. It’s an interesting decision.

  • http://gnuosphere.blogspot.com Peter Rock

    I’m not a lawyer either but after reading the document, I agreed with the decision. A part that I found particularly interesting was on p.17 concerning the use of the entire work -

    [...] courts have concluded that such copying does not necessarily weigh against fair use because copying the entirety of a work is sometimes necessary to make a fair use [...]

    Here, the defendant made thousands of copies of an entire work and it was ruled that this was fair use. How will the emerging technologies of DRM and TC allow this without enforcing a predefined version of what fair use is? Are the factors of fair use a set of guidelines to be used in defense or guidelines to be molded (through technology) as the entertainment industry sees fit?