tag:blogger.com,1999:blog-12505562.post114925944477649161..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: An Instructive Fair Use CaseWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-12505562.post-1156885357420274472006-08-29T17:02:00.000-04:002006-08-29T17:02:00.000-04:00Nice try with Copyright .. but maybe the Gulfstrea...Nice try with Copyright .. but maybe the Gulfstream's lawyer should have argued a misappropriation of proprietary information - a state Law cause of action under the Uniform Trade Secrets Act. . . Did Camp explain why they bypassed Gulfstream's proprietary legends that are all over these kinds of documents ? OR, Maybe Gulfstream has not marked these documents ? - In this case - nice try !Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1149393951766826542006-06-04T00:05:00.000-04:002006-06-04T00:05:00.000-04:00Insofar as the FAA requires owners of the plan to ...Insofar as the FAA requires owners of the plan to refer to a copyrighted manual, the case also reminds me of cases involving copyrights claimed on private works referred to in governmental laws or processes.<BR/><BR/>The governmental requirement that the copyrighted manual be used necessitates infringment in the service market; the significance of this order should therefore be considered in judging fair use.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1149290275529865012006-06-02T19:17:00.000-04:002006-06-02T19:17:00.000-04:00Mike:I thought of Kalitta too, one of Judge Alex's...Mike:<BR/>I thought of Kalitta too, one of Judge Alex's less successful opinions, I think. The thing that I like about the opinion is what bothers you and I appreciate why it does. And that is, what is fair use? What do we want it to be? I would be happy with the idea of defendant's acts not being infringement, as I think Google's book search copying is not a prima facie copying either. But if there is disagreement, as Gulfstream surely does and book publishers too, then fair use should perform a safety valve role. To paraphrase the great Jewish sage Hillel, "If not fair use, what, then?"William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1149281845559588062006-06-02T16:57:00.000-04:002006-06-02T16:57:00.000-04:00The court reaches a sensible result, and the impli...The court reaches a sensible result, and the implicit rationale ("your copyright doesn't reach that far") is surely right, but I wonder about the court's (and the defendant's) reliance on fair use. The problem, as I see it, is that if fair use becomes an all-purpose explanation for "no infringement," then fair use is even less meaningful than it is today.<BR/><BR/>How might the case be analyzed without fair use? First: In what but the most uncritically literal sense did the defendant infringe the copyright in the first place? It strikes me that the defendant was accused not of reproducing the manual but of "using" it without permission -- a situation that should fall outside section 106 in the first place. Second: I could imagine applying 102(b) or the doctrine of merger or Baker v. Selden (to the extent that merger and 102(b) don't exhaust Baker's applicability). There are probably other options.<BR/><BR/>To be fair to the plaintiff, I can appreciate the instinct that the defendant appropriated something of value in the course of building a competing business. But copyright may have been the wrong container for the claim. Because case involves aircraft, I have in mind Judge Kozinski's opinion in G.S. Rasmussen & Associates, Inc. v. Kalitta Flying Service, Inc.<BR/>958 F.2d 896 (9th Cir. 1992). That case has its problems, but it's worth noting that while defendants sometimes warp copyright law when they use fair use instead of other, better tools, copyright owners sometimes warp copyright (and hurt their own interests) by defaulting to statutory copyright law when state common law, and some shrewd "no preemption" arguments, would better suit their needs.<BR/>(Sorry to sound so law-professor-ish late on a Friday afternoon!)Mike Madisonhttps://www.blogger.com/profile/02804134848037086951noreply@blogger.com