tag:blogger.com,1999:blog-12505562.post113509061347164209..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: Fair Use: The Source CopyWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-12505562.post-1135105273851068682005-12-20T14:01:00.000-05:002005-12-20T14:01:00.000-05:00gemlaywer raises some good points. Since fair use ...gemlaywer raises some good points. <BR/><BR/>Since fair use is an unconsented to use, the mere fact that permission wasn't sought, or was sought and refused, can hardly matter: in 2 Live Crew, the Supreme Court indicated that it wanted to encourage people to ask for permission. So what would bad faith be?<BR/><BR/>In the Nation case, it was knowingly receiving an unauthorized manuscript for the purpose of scooping the authorized release. But what if it was a Pentagon papers like situation, or the current NSA spying? Leaving aside the lack of protection because of Section 105, the fact that the work was intended to be kept unpublished might, as Judge Leval has written, actually argue in favor of fair use. <BR/><BR/>The Atari case is another example, where there was, as I recall, false statements made to gain access to a deposit copy for the purpose of reverse engineering. But if the reverse engineering was otherwise OK, say because it was being done to study a process, at least Judges Leval and Jacobs believe that bad behavior should be dealt with separately; in Atari's case say by a criminal prosecution. I doubt the majority in the harper & Row Court would agree, however, and perhaps there is a spill-over from the (historically false) view that fair use is an equitable doctrine.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1135101421166468062005-12-20T12:57:00.000-05:002005-12-20T12:57:00.000-05:00To me, these perennial discussions of good/bad fai...To me, these perennial discussions of good/bad faith in fair use are really little more than pointless pontifications about the evils of infringement. <BR/><BR/>As the good Professor asks, what is "bad faith"? To me, it would be copying for no other reason than to advance the interests of the copier, whether commercial or otherwise. But this is clearly covered by the first factor--how is "good" or "bad" faith not encompassed by a consideration of the "purpose and character of the use"?<BR/><BR/>It would seem that any consideration of "faith" would be duplicative.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1135099453708960002005-12-20T12:24:00.000-05:002005-12-20T12:24:00.000-05:00I would like to think I have learned a bit more si...I would like to think I have learned a bit more since the passage from me cited in the Sega case. The access via the deposit copy in the Atari case occurred while I was at the Copyright Office, and I remember the circumstances quite well. There was talk at the time of referring the matter to the Justice Department for possible criminal prosecution, but nothing came of it.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1135097434330559242005-12-20T11:50:00.000-05:002005-12-20T11:50:00.000-05:00per thos's comment - judges here in Florida have t...per thos's comment - judges here in Florida have thrown out scores of DUI cases because the breathalyzer source code is not available to the defendant. The manufacturers are worried about trade secret disclosure.<BR/>http://www.duiblog.com/discuss/msgReader$274<BR/><BR/>Also, per Prof. Patry's post, Atari filed an impending litigation notice with the Copyright Office to obtain Nintendo's source code which it had trouble deciphering via chemical peels and clean room techniques. This trickery counted against Atari as the court found that Atari was precluded from a fair use defense since its copy was not authorized. (But can't one technically assume that there would, indeed, be pending litigation given the circumstances of the case? One of my profs found it to be quite strategic. But I think he was kidding. I hope.)<BR/><BR/>Anyway - it is important because in other interoperability cases, courts have found some amount of literal infringement was okay - for the sake of interoperability (see Sega v. Accolade - the appeal, not the district court which cites Prof. Patry!). So maybe Atari's arguable bad faith was more damaging than they could have realized.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1135094695076062242005-12-20T11:04:00.000-05:002005-12-20T11:04:00.000-05:00Former Chief Judge Oakes of the Second Circuit wro...Former Chief Judge Oakes of the Second Circuit wrote an interesting article about the impact of injunctive relief on fair use determinations, "Copyrights and Copyremedies: Unfair Use and Injunctions," 18 Hofstra L. Rev. 983 (1990).William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1135093713371168732005-12-20T10:48:00.000-05:002005-12-20T10:48:00.000-05:00The issue of abusive control of information might ...The issue of abusive control of information might be better addressed at the remedial level, where public policy or exercise of judicial discretion may deny a remedy to a copyright owner otherwise entitled. Take, for example, the 1985 UK case, Lion Laboratories v Evans, where defendants sought to publicise the inaccuracy of plaintiffs' alcohol breath-testing device. Interim injunction denied on public interest grounds. "Fair use" is not always the solution to a perceived problem about the extent of protection.Anonymousnoreply@blogger.com