Class 17 Copyright, Autumn, 2016 Fair Use 11/21/2018 Class 17 Copyright, Autumn, 2016 Fair Use Randal C. Picker James Parker Hall Distinguished Service Professor of Law Ludwig & Hilde Wolf Teaching Scholar The Law School The University of Chicago

107. Limitations on exclusive rights: Fair use 11/21/2018 107. Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. November 21, 2018

11/21/2018 107 (Cont.) In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include‑‑ (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; November 21, 2018

107 (Cont.) (2) the nature of the copyrighted work; 11/21/2018 107 (Cont.) (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. November 21, 2018

November 21, 2018 Sega and Fair Use

November 21, 2018 Xbox as Loss Leader

Sega v. Accolade (CA9 1993) Key Questions Why did Accolade want to copy Sega’s work? Does that matter? Should the fact that the copying produced an intermediate work rather than the final work matter? November 21, 2018

Sega v. Accolade (CA9 1993) Key Questions How should we understand the copying of the code that invoked the SEGA trademark? November 21, 2018

“Google’s mission is to organize the world‘s information and make it universally accessible and useful.” November 21, 2018

November 21, 2018 NYT, 8 Oct 2004

November 21, 2018 Google Books

November 21, 2018 Google Books

November 21, 2018 Google Books

November 21, 2018 Google Books

November 21, 2018 www.copyright.gov

“Under Google’s contracts, those libraries must deploy ‘technological measures’ to prevent other libraries, digital archives, researchers, competing search engines, and others from downloading and analyzing the content of those public domain books. That’s wrong. Public domain books should always be accessible by the public, and not locked up by Google’s technology.” November 21, 2018

November 21, 2018 DMCA Rulemaking (Oct 2012)

November 21, 2018 DMCA Rulemaking (Oct 2012)

November 21, 2018 DMCA Rulemaking (Oct 2012)

November 21, 2018 DMCA Rulemaking (28 Oct 2015)

November 21, 2018 Orphan Works

November 21, 2018 AG Complaint, 20 Sept 2005

November 21, 2018 Settlement, 28 Oct 2008

Key Elements of Settlement 11/21/2018 Key Elements of Settlement Digital Files Collection Opt Out Class Action: Key re Orphan Works Rights License Division of Project Revenues: 63% to Rightsholders, 37% to Google Rightsholders & Registry November 21, 2018

Google’s Use of Digital Files 11/21/2018 Google’s Use of Digital Files Key Business Models Institutional Subscriptions (1.74, 4.1) Consumer Purchases (1.32, 4.2) Advertising Revenue Model (4.4) New Revenue Models (4.7) Google Book Search Broad Other Uses: Non-Display Uses (1.91, 2.2) November 21, 2018

Orphan Works and the “Private” Public Domain 11/21/2018 Orphan Works and the “Private” Public Domain Facilitation of Use of Orphan Works through Opt Out Class Action Scope of Releases (10.1, 10.2): Third parties excluded Active Authors Settling Parties Usually Want to Maintain Property Status Against Third Parties: Westlaw/Lexis page numbers fight Hatch Waxman patents v. generics Google November 21, 2018

November 21, 2018 SDNY Opinion, 22 Mar 2011

Google Book Search (CA2 2015) Fair use and different uses An index of terms in a book? In multiple books? A count of the number of terms in a book? In multiple books? Snippets from single books? Are each of these situated identically as to the four factors? November 21, 2018