Thank you Judith. It looks like you read the entire decision (at least, wait for it... the good parts) and understand the specifics and the exceptions of this particular decision.
Each case is only more case law, not (so far) a definitive decision on fair use. Well-reasoned analyses with a minimum of typographic errors are always welcome. - - Roger Brown Manager UCLA Instructional Media Collections & Services 46 Powell Library Los Angeles, CA 90095-1517 office: 310-206-1248 fax: 310-206-5392 [email protected] From: "Shoaf,Judith P" <[email protected]<mailto:[email protected]>> Reply-To: <[email protected]<mailto:[email protected]>> Date: Tuesday, May 15, 2012 12:42 PM To: "[email protected]<mailto:[email protected]>" <[email protected]<mailto:[email protected]>> Subject: Re: [Videolib] Permissible amounts in fair use I once took that personality test online and it said I am most like Lucy in Peanuts. My husband, who is most like Schroeder, doesn’t let me forget it. Nickels welcome. Judge Evans talks about the Kinko’s and Michigan Documents cases, and disagrees about the “good parts” argument. In only one of the cases she considers does she say that the excerpt constituted “the heart of the work.” I’m not sure whether this is because a plaintiff argued it or it was her own analysis. NB she looks at 74 cases, of which 27 fail the prima facie copyright violation test because either the plaintiffs were not able to show they had the rights, or else the excerpt was never accessed by students (e.g. the course was cancelled). So there are 47 cases where she looks at fair use. In 100% of them she considered that the library providing free access to the excerpts (factor 1) strongly favored the defendants, and that the nature of the works (scholarship relevant to the courses) favored the defendants (factor 2). In the 5 cases where she found violations, factor 3 had to favor the plaintiffs (that is, the amount had to be more than “distinctly small”) AND factor 4 had to strongly favor the plaintiffs (not only was permission available in a reasonably convenient way, but the book in question actually made money on such permissions). There is no 10% rule. The rule is that an amount under 10% of a book with fewer than 10 chapters, or one chapter of a book with more than 10 chapters, is “distinctly small.” So in some cases 5% of a book could be more than a distinctly small portion (if it was a huge book with many chapters). I suppose that if you had a book with 12 chapters, and one chapter took up 20% of the book, that chapter could be used and still be “distinctly small.” But if the permission is difficult to come by, the amount is irrelevant. In 13 cases, factor 3 favored or even (in one case—30% of the book!) strongly favored the plaintiffs but the judge found for the defendants based on factor 4.. I shall now go fly a kite into the kite-eating tree. Judy Shoaf ____________________ Good points -- I see another healthy debate on the horizon. Hold football for Lucy, hope for the best, rinse, repeat. If I'm not mistaken it was the Kinko's case here in Ann Arbor, where some of these specific percentages were discussed. I think the prof. had copied 30-40% of a book, but the additional argument that had some substance centered not so much on the large percentage but that the "good parts" were primarily what was copied. "Good parts" > core > substantive argument, etc. Qualitative, not quantitative. At any rate, it seems to me that stating something as exact as 10% is an effort in futility -- doesn't that miss a lot of the point, even though it is one part of the fair use review? (disclosure: I have not read even 1% of the decision yet, so I shan't go opinionating beyond this little wondering!). Randal Baier
VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors.
