Exploring my ridiculously large file of "Interesting - I'll get to that later" e-mail messages, I ran across this one, below. Interesting indeed for IP SIG and all Fair Use fans out there. Old news, perhaps, but better late than never.
Amalyah Keshet Chair, MCN IP SIG ----------------------------------------------------------------------------------------------------- For people interested in fair use issues, two recent and important cases are worth reading. The first is Bill Graham Archives v. Dorling Kindersley Limited, which the Second Circuit decided on May 9, 2006: http://www.copybites.com/2006/05/second_circuit_.html In that case, the Second Circuit found that the use of reduced images in a biographical work constituted transformative fair use. Relying in part on Kelly v. Arriba Soft Corp., the Second Circuit rejected arguments that the use of the reduced size images required additional commentary and criticism beyond their placement in a biographical timeline. In addition, they declined to consider the market for the transformative use of these images as relevant to fourth factor analysis, where the only relevant market harm to consider according to the court was harm to traditional non-transformative uses. The other case of interest is Wall Data Incorporated v. Los Angeles County Sheriff?s Department, which the Ninth Circuit decided on May 17, 2006: http://www.copybites.com/2006/05/ninth_circuit_s.html Here, the Ninth Circuit found the defendants liable for copyright infringement. The essential point of condemnation was the defendant?s unauthorized duplication of computer software to achieve the same purpose as provided in their software licenses. Of particular interest is the Ninth Circuit?s point of view on heightened vulnerability of computer software to illegal copying, which indicates that this court is less likely to grant fair use rights over computer software relative to other types of protected works such as books or photographs. While the breadth of the opinion's discussion on this heightened fair use standard is limited to computer software, one could see it as potentially signaling the appeals court's future approach to fair use exceptions over protected digital content in general. Also, the Ninth Circuit reaffirmed it's position that licensees of copyrighted works cannot seek protection under Section 117(a)'s "essential step" exception to Section 106 exclusive rights. -- Cory Hojka Editor of "Copybites: A Copyright Law Blog" http://www.copybites.com
