My "new" fair use book

West Publishing just put out a "new" treatise of mine on fair use in copyright. Here is a link to buy it ($200, free shipping!). "New" is in quotes because the book goes back to 1985, when BNA published the first edition. The book got off to a good start: the week after it was published the Supreme Court cited it in its Harper & Row, Publishers v. Nation Enterprises opinion, the case about the Nation magazine's unauthorized publication of excerpts from former President Gerald Ford's memoirs before those memoirs were published. The Court later cited it in the 2 Live Crew parody case, as have lots of lower courts. In 1995 a second edition was published. But the book languished beginning in the late 1990s and went out of print. I discovered it was out of print in a funny way: I was asked for two copies of it by an erstwhile client. I called up BNA and asked for the copies. They said they doubted they had them because the book was out of print and they had destroyed all the copies. This was news to me, but at least all rights reverted to me. (This didn't include, btw, the electronic files which were on a funky proprietary system).

In my contract for the book with West, the problem of not notifying the author when the book goes out of print is well taken care of: under the rights given to West for the "new" book, the book can't ever go out of print even if West decides never to publish another copy and pulls it off of Westlaw. Gone, apparently, are the days when authors had their copyrights revert when the book goes out of print, but let's thank our stars for the termination rights in Section 304.

Anyway, to continue the saga of the out of print fair use book. In 2007, West published the 7 volume, 6,000 page general treatise on copyright I wrote. Given that the fair use treatise was out of date, I folded into that general book most of the old fair use treatise as Chapter 10, revised and updated to about 500 pages. (Since I didn't have the electronic files, see above, this meant OCR'ing the hard copy and a lot of clean-up work).

I have come to think though, given the increased importance of fair use, and the fact that the fair chapter was lost amongst the 6,000 pages of the larger treatise, that I should spin it off into its own book again, so that's what this "new" book is. While it remains part of the 6,000 general treatise, the spin off has two new chapters not found in the general treatise. One chapter is on the early 18th century English cases from whence fair use arose, and the other chapter is on current international issues. The old English cases are both interesting and important for showing the boldness of the common law judges in forging the doctrine. I expect to expand the international chapter in the next edition given the increased importance of limitations and exceptions and the debates about the three-step test.

The book will be updated once a year and will be reissued every year as a new soft copy to avoid those ultra-annoying pocket parts as well as loose-leaf inserts.