Comments on: More on New Moon and Copyright Piracy … http://madisonian.net/2009/12/15/more-on-new-moon-and-copyright-piracy/ a blog about law, tech, culture, and related things Thu, 10 May 2012 20:32:56 -0500 http://wordpress.org/?v=2.8.4 hourly 1 By: david Sanger http://madisonian.net/2009/12/15/more-on-new-moon-and-copyright-piracy/comment-page-1/#comment-306406 david Sanger Fri, 18 Dec 2009 06:59:13 +0000 http://madisonian.net/?p=3573#comment-306406 No doubt the contractual question is a separate issue and I was interested to read some of the background on controversies about EULAs. As for allowing a small amount of copying as part of the process of producing a "fair use" work, <a href="http://williampatry.blogspot.com/2007/09/and-in-end.html" rel="nofollow">Patry notes:</a> <blockquote>"courts have held that one is permitted to start with a copyrighted work and make sufficient changes so long as the end product is not substantially similar. This approach makes sense .... because intermediate copying should not be infringement at all."</blockquote> Convincing the court that the user actually was in the process of producing of a "fair use" work would be another matter. No doubt the contractual question is a separate issue and I was interested to read some of the background on controversies about EULAs.

As for allowing a small amount of copying as part of the process of producing a “fair use” work, Patry notes:

“courts have held that one is permitted to start with a copyrighted work and make sufficient changes so long as the end product is not substantially similar. This approach makes sense …. because intermediate copying should not be infringement at all.”

Convincing the court that the user actually was in the process of producing of a “fair use” work would be another matter.

]]> By: Jacqui L http://madisonian.net/2009/12/15/more-on-new-moon-and-copyright-piracy/comment-page-1/#comment-306124 Jacqui L Wed, 16 Dec 2009 15:03:59 +0000 http://madisonian.net/?p=3573#comment-306124 You raise an excellent point, David. So the question is should we interpret copyright law as necessarily allowing a small amount of copying of in order to make a later fair use? If so, there is a secondary question of contract. For example, if the movie theater regards the notices it posts forbidding recording devices in theaters as part of its contract for allowing you to see the movie, then is this a contractual attempt to negate fair use? If so, it's kind of like the debates that come up with EULAs that require a user of digital video content to waive his/her "right" to make a fair use of content. I understand that's still somewhat of an unresolved question in modern copyright law. You raise an excellent point, David. So the question is should we interpret copyright law as necessarily allowing a small amount of copying of in order to make a later fair use? If so, there is a secondary question of contract. For example, if the movie theater regards the notices it posts forbidding recording devices in theaters as part of its contract for allowing you to see the movie, then is this a contractual attempt to negate fair use? If so, it’s kind of like the debates that come up with EULAs that require a user of digital video content to waive his/her “right” to make a fair use of content. I understand that’s still somewhat of an unresolved question in modern copyright law.

]]> By: david Sanger http://madisonian.net/2009/12/15/more-on-new-moon-and-copyright-piracy/comment-page-1/#comment-306073 david Sanger Wed, 16 Dec 2009 00:15:38 +0000 http://madisonian.net/?p=3573#comment-306073 How would fair use possibly interact with camcording a film (not in this specific case, but in general)? If a user wanted to produce a critical review and include a snippet of a film (and thus take advantage of the fair use exemption), they would first have to record the excerpt, then subsequently produce the review. This leaves a period of time between the recording and the final review when there is only an unfulfilled intent to make fair use of a copyrighted work. Would the initial recording always be considered infringing and ineligible for a fair use exemption during this time? And could such a recording then later be considered a fair use, but only after the critical review had been completed? Is there any way anyone could ever claim a fair use exemption for recording part of a film, if they are interrupted before completing the "fair use" work? How would fair use possibly interact with camcording a film (not in this specific case, but in general)?

If a user wanted to produce a critical review and include a snippet of a film (and thus take advantage of the fair use exemption), they would first have to record the excerpt, then subsequently produce the review.

This leaves a period of time between the recording and the final review when there is only an unfulfilled intent to make fair use of a copyrighted work.

Would the initial recording always be considered infringing and ineligible for a fair use exemption during this time?

And could such a recording then later be considered a fair use, but only after the critical review had been completed?

Is there any way anyone could ever claim a fair use exemption for recording part of a film, if they are interrupted before completing the “fair use” work?

]]>