tag:blogger.com,1999:blog-12505562.post5691208887753793604..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: Two from JapanWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-12505562.post-16571560320481722552008-06-04T07:37:00.000-04:002008-06-04T07:37:00.000-04:00Tomoki, see there are two benefits to being in the...Tomoki, see there are two benefits to being in the States: a weak dollar and not having to study the Gordon article(s). Here by the way is a link to Professor Netanel's article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1066241William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-64549196480308227352008-06-04T00:28:00.000-04:002008-06-04T00:28:00.000-04:00Dear Mr. Patry:Thank you so much for your detailed...Dear Mr. Patry:<BR/><BR/>Thank you so much for your detailed explanation. Since I am staying in the United States and could not attend that symposium, I am not sure about the discussions among the participants about Professor Gordon's theory. Your explanation was very helpful to me.<BR/><BR/>Following your recommendation in this blog, I am studying Professor Netanel's "Copyright Paradox". I would then read the paper you mentioned above.<BR/><BR/>Again, thank you so much.<BR/><BR/>Best,Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-82011041782853106802008-06-03T07:03:00.000-04:002008-06-03T07:03:00.000-04:00Tomoki, thank you for comment. I am very sorry to ...Tomoki, thank you for comment. I am very sorry to hear that Japanese (or any) lawyers would study Professor Gordon's market theory of fair use, which in my opinion, fundamentally misunderstands and underprotects copyright. In my 28 years of studying and litigating fair use, testifying before Congress about it, and revising section 107 as a congressional staffer, it is in my view the worst article ever written about fair use.<BR/><BR/>Professor Neil Netanel has done a great job of explaining why in his article "Why has Copyright Expanded" which I previously blogged about. I refer readers to his piece, pages 17 n.48 and page 19.<BR/><BR/>The highlights of Professor Netanel's critique are: using the trappings of neoclassical economics (trappings because she is not an economist, but instead that all-too-common species of law professor who is not a specialist in an area but writes ostensibly as one)Professor Netanel points out that she analyzes fair use "principally in terms of the 'consensual exchange of goods' ..." As Professor Netanel observes "Neoclassicism ... sharply reduces the availability of fair use. In the neoclassical view, fair use reduces to anomolous cases of endemic and insuperable market failure. ... For [Gordon], fair use serves merely to effect a market bargain that cannot otherwise take place because transaction costs are too high. Under that reasoning, fair use will rarely apply." This is directly contrary to Judge Leval's admonition that fair use is not to be a rarely and barely tolerated phenomenon, but rather an essential part of the whole copyright scheme. One would never know it from Professor Gordon's writings.<BR/><BR/>Professor Gordon also looks at the dog from the wrong end: her approach asks whether the copyright owner would license the work. That is an extremely pernicious gutting of fair use, since it focuses the inquiry on what a hypothetical reasonable copyright owner might do, rather than at what use defendant made. <BR/><BR/>In short, I regret deeply the utter waste of time spent by examining an important doctrine from a perspective that is extremely hostile to it and incompatible with it.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-72735312082625362252008-06-03T04:06:00.000-04:002008-06-03T04:06:00.000-04:00The second article raises a worrying question of s...The second article raises a worrying question of scope - I have no objection to the 'blank tape' levy or equivalents on products which are primarily intended to receive imprinted copies of material likely to be copyrighted (a blank tape <I>can</I> be used for copying works owned by the user but it's statistically very unlikely) - however to extend the logic to HDD-based devices makes me wonder over the application of the 'primary purpose by volume' argument. If a HDD-based music player should be subject to a levy, then surely so must the computer which was involved in the copying process onto the player, and why would the logic <I>not</I> therefore apply to flash drives, digital cameras, cellphones, etc. - all of which are capable of being used to store infringing works even if that isn't their 'intended' primary function?<BR/><BR/>I'm not arguing that the logic should be used in reverse to stop charges on blank tapes, as they are accepted by everyone as being used en-masse for storing copied audio and video - but a line has to be drawn somewhere between pre-emptive charging for a <I>likely</I> use, as opposed to a <I>possible</I> one. Surely an exhaustive argument on that route would lead to applying a levy on blank paper, in case someone used it to photocopy a book?UVSARhttps://www.blogger.com/profile/08969926423222987214noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-52381530788199149832008-06-03T03:37:00.000-04:002008-06-03T03:37:00.000-04:00The main topic of the symposium of the Copyright L...The main topic of the symposium of the Copyright Law Association of Japan held on May 24 was "limitation on copyright" and Professor Gordon's market failure theory and related significant cases were also introduced. <BR/><BR/>As a Japanese attorney who is studying copyright law in the U.S., I hope that Japanese scholars would push this trend and in the near future, Japan could draft a new Japanese fair use clause, taking pros and cons of the Article 107 of current U.S. Copyright Act and its several reformation proposals into consideration.Anonymousnoreply@blogger.com