tag:blogger.com,1999:blog-12505562.post8952003222160956635..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: Eleventh Circuit: Fair Use, Laches, and Kitchen SinkWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-12505562.post-17222813337806529382008-07-14T15:15:00.000-04:002008-07-14T15:15:00.000-04:00Hi Scott, you raise very important questions. I th...Hi Scott, you raise very important questions. I think the court on this case adopted a pretty searching look at the issue, and helpfully eschewed labels in favor of actual practices, and in the end I think that is the best way: forget about the label out of print in favor of the publisher or copyright owner's past and reasonably future plansWilliam Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-72893905226625830872008-07-14T13:19:00.000-04:002008-07-14T13:19:00.000-04:00One comment you made piqued my interest, William. ...One comment you made piqued my interest, William. You noted that "The court held that the fact that a book is out of print will tend to favor fair use (p. 46-47). But in this case, the plaintiff withheld the book in order to make a decision about when and how to re-release it; hence the book was not out-of-print in the usual sense, i.e., no immediate plans to republish it."<BR/><BR/>How is the distinction made between a book which is "out of print"--in other words, whoever it is who controls publication rights has decided to permanently (or at least indefinitely) discontinue making it available, and one which the publisher or author is only temporarily withholding? Given that being out of print makes a potentially-infringing use or a work more likely to be fair use; it is often to the publisher's advantage to take the posture that <B>nothing</B> they have published is truly out of print--it's just, as the folks at Disney like to say when they cease making a DVD available for a while, "in the vault"--that the publisher reserves the right to resume publication at any time, and may do so without notice. Indeed, many publishers find it useful to restrict the availability of a work in the marketplace--by geography or time-- for reasons both good and bad: in order to further drive up prices, increase the cachet or the work (cf "limited editions"), better utilize limited production resources, or at least make demand more predictable.<BR/><BR/>The existence (or lack) of a publication or release plan for a work may indicate that it is or is not out of print; but may such plans may be trade secrets of the publisher--only available through discovery--and often don't represent any sort of commitment to the marketplace.EngineerScottyhttps://www.blogger.com/profile/11005863528905991434noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-72055091966994558012008-07-14T09:59:00.000-04:002008-07-14T09:59:00.000-04:00I admit lqp, I have no idea what you are talking a...I admit lqp, I have no idea what you are talking about.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-75302458104039758122008-07-14T08:42:00.000-04:002008-07-14T08:42:00.000-04:00Looks like a fascial attack on fair use as such.Looks like a fascial attack on fair use as such.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-59440234404467158042008-07-12T20:59:00.000-04:002008-07-12T20:59:00.000-04:00Copyright, though, is not ordinary in respect of a...Copyright, though, is not ordinary in respect of a continued use of the work as an infringement; to which laches could not apply because the infringements, in terms of timeliness, are refreshed with each sale, distribution, manufacturing, display, performance, transmission and so forth.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-72819870134748959462008-07-11T15:35:00.000-04:002008-07-11T15:35:00.000-04:00The court added,: "Even where such extraordinary c...<I>The court added,: "Even where such extraordinary circumstances exist, however, laches serves as a bar only to the recovery of retrospective damages, not to prospective relief."</I><BR/><BR/>I would have thought that laches would also matter -- in fact, matter primarily, in your ordinary case -- to the availability of equitable relief, i.e. an injunction.Bruce Boydenhttps://www.blogger.com/profile/02247768315353108904noreply@blogger.com