And now:Ish <[EMAIL PROTECTED]> writes: http://www.utsystem.edu/OGC/IntellectualProperty/copypol2.htm#test Using the Four Factor Fair Use Test The Rules of Thumb do not describe the outer limits of fair use; they describe a "safe harbor" within the bounds of fair use. So, a use that exceeds the suggestions of the Rules of Thumb may still be fair. Most people think that the fair use test is difficult. Actually, it's not so much difficult as it is uncertain - susceptible to multiple interpretations. Two people can review the same facts about a proposed use and come to different conclusions about its fairness. That's because one must make many judgments in the course of weighing and balancing the facts. Attorneys read the "judgments of judges" to learn how to make judgments ourselves, but judges see things differently (one from another) too. Because "reasonable minds can disagree" about fair use, perhaps it is unrealistic to try to predict what a judge would think about a proposed use. But that's just what this test is about. Here's how it works: With a particular use in mind, Read each question and the comments about it Answer each question about your use See how the balance tips with each answer Make a judgment about the final balance: overall does the balance tip in favor of fair use or in favor of getting permission? The four fair use factors: 1.What is the character of the use? NONPROFIT TO AID THOSE IN NEED 2.What is the nature of the work to be used? A LIST OF ADDRESSES FOR TRIBAL CONTACT 3.How much of the work will you use? A PORTION FROM ONE OF FIFTY STATES 4.What effect would this use have on the market for the original or for permissions if the use were widespread? NONE FACTOR 1: What is the character of the use? Nonprofit Educational Personal Criticism Commentary Newsreporting Parody Otherwise "transformative" use Commercial Uses on the left tend to tip the balance in favor of fair use. The use on the right tends to tip the balance in favor of the copyright owner - in favor of seeking permission. The uses in the middle, if they apply, are very beneficial: they add weight to the tipping force of uses on the left; they subtract weight from the tipping force of a use on the right. Imagine that you could assign a numerical weight to each use. A nonprofit educational use other than the middle uses, for example, making a copy of a journal article for a university class, might weigh 5 in favor of fair use. But a nonprofit educational use that is also criticism, for example, the inclusion by a faculty member of a quote from another's work in a scholarly critique, would weigh even more in favor of fair use: about 6 or 7. That's because the uses in the middle are "core" fair uses; the ones most dearly protected. Even if they are for-profit, they weigh in favor of fair use: that's why they subtract from the weight against fair use of a commercial use. A commercial duplication of an article from a journal might weigh 5 against fair use. But a commercial commentary, while still weighing against fair use because it's commercial, would only weigh about 2 or1. This is not to suggest that fair use can be precisely quantitatively analyzed. Numbers are just a tool to illustrate how the facts interact and affect each other. Actually, numbers wouldn't make the analysis any easier: copyright owners and users would have just as much trouble agreeing on weights as we have agreeing on any other judgment about fair use. FACTOR 2: What is the nature of the work to be used? Fact Published A mixture of fact and imaginative Imaginative Unpublished Again, uses on the left tip the balance in favor of fair use. Uses on the right tip the balance in favor of seeking permission. But here, uses in the middle tend to have little effect on the balance. Where is your balance tipping after you have assessed the first two factors? FACTOR 3: How much of the work will you use? Small amount More than a small amount This factor has its own peculiarities. The general rule holds true (uses on the left tip the balance in favor of fair use; uses on the right tip the balance in favor of asking for permission), but if the first factor weighed in favor of fair use, you can use more of a work than if it weighed in favor of seeking permission. A nonprofit use of a whole work will weigh somewhat against fair use. A commercial use of a whole work would weigh significantly against fair use. For example, a nonprofit educational institution may copy an entire article from a journal for students in a class as a fair use; but a commercial copyshop would need permission for the same copying. Similarly, commercial publishers have stringent limitations on the length of quotations, while a student writing a paper for a class assignment could reasonably expect to include lengthier portions. Where is your balance tipping after you have assessed the first three factors? The answer to this question will be important in the analysis of the fourth factor! FACTOR 4: If this kind of use were widespread, what effect would it have on the market for the original or for permissions? After evaluation of the first three factors, the proposed use is tipping towards fair use Original is out of print or otherwise unavailable No ready market for permission Copyright owner is unidentifiable Competes with (takes away sales from) the original Avoids payment for permission (royalties) in an established permissions market This factor is a chameleon. Under some circumstances, it weighs more than all the others put together. Under other circumstances, it weighs nothing! It depends on what happened with the first three factors. Here's why: This factor poses a "circular reasoning" problem: we do the fair use analysis to find out whether we might owe the copyright owner some money for a particular use. But this fourth factor asks, "Is the owner losing money because of this use?" We don't know that yet, do we, because until we are through, we don't know whether he is entitled to any money that he could then lose. If we knew that he was entitled to some money and that he was therefore losing it because of our use, we would not be doing the fair use test; we would just pay the money.<<END EXCERPT I apologize for posting your list without attribution. since you have failed to post the URL your needs to be acknowledged appear to go begging, without this I can not acknowledge your site as the source, as yours (SINCE no identification has been forthcoming as yet) and yours was allegedly one of many searched for this info. Under the Fair Use guidelines and rule of thumb posted above, it would appear that Larry's contribution and my re-post is also covered. Respectfully, Ishgooda Reprinted under the fair use http://www4.law.cornell.edu/uscode/17/107.html doctrine of international copyright law. &&&&&&&&&&&&&&&&&&&&&&&&&& Tsonkwadiyonrat (We are ONE Spirit) Unenh onhwa' Awayaton http://www.tdi.net/ishgooda/ &&&&&&&&&&&&&&&&&&&&&&&&&&
