Fair use and case analysis (was: Re: #1166 Quotations from RFCs and I-Ds - suggested resolution)

> -----Original Message-----
> From: John C Klensin [mailto:john-ietfjck.com]
> Sent: Thursday, April 27, 2006 3:20 PM
> To: Brian E Carpenter
> Cc: ipr-wgietf.org; Spencer Dawkins
> Subject: Fair use and case analysis (was: Re: #1166 
> Quotations from RFCs
> and I-Ds - suggested resolution)
> 
>  
> 	(1) "Fair use", as I have understood it,
isn't a rule,
> 	but, with the exception of a small number of
enumerated
> 	cases, a principle.  If Alice does something with
Bob's
> 	document, she is relying on an assumption that Bob
will
> 	consider the use fair.  If Bob doesn't, then he goes
off
> 	and persuades a judge to decide.  For most "fair
use"
> 	cases, Alice has no guarantee that the use will be
> 	considered fair by that hypothetical judge until there
> 	is a decision.   So, for the purpose of Alice knowing
> 	what she can safely do, "fair use" is
really not helpful
> 	(again, except for a series of very narrowly-defined
> 	situations).
> 	

FYI, below is the actual definition of "fair
use" from the US Copyright
Act.  The specific fair use exceptions are criticism,
comment, news reporting,
teaching, scholarship and research.  Other "fair
use" exemptions that have
been established through case law include parody and,
recently, the
use of thumbnail images for image indexing purposes.

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the
fair use
 of a copyrighted work, including such use by reproduction
in copies 
or phonorecords or by any other means specified by that
section, for 
purposes such as criticism, comment, news reporting,
teaching (including
 multiple copies for classroom use), scholarship, or
research, is not 
an infringement of copyright. In determining whether the use
made of a 
work in any particular case is a fair use the factors
 to be considered shall include - 


(1) the purpose and character of the use, including whether
such use is
 of a commercial nature or is for nonprofit educational
purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in
relation to 
the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or
value of the
 copyrighted work.

The fact that a work is unpublished shall not itself bar a
finding of 
fair use if such finding is made upon consideration of all
the above factors.

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