COPYRIGHT : FAIR USE CONT’D Professor Fischer The Catholic University of America Columbus School of Law April 2, 2003

Wrap-up: Fair Use Fair use was originally a judge-made doctrine, but it was codified in the 1976 Act at 17 U.S.C. s. 107 Affirmative defense 4 non-exclusive fair use factors are weighed Highly fact-specific

Sega v. Accolade What was the issue for the Ninth Circuit to decide? Did they find fair use? In Sony v. Connectix, did the Ninth Circuit apply the same approach?

Kelly v. Arriba (CB p. 539) How did Arriba allegedly infringe Kelly’s copyrights? To what extent did fair use apply? To the thumbnails? To the full-sized images Is Google’s image search engine at protected by fair use? Why or why not?

Theories of fair use Fair use more likely to be found where fair use is Productive Reasonable Customary (socially acceptable? Implied consent?)

Copying for Personal Use: When is it fair use? Can simple copying ever be “productive”? What if it is “reasonable” and “customary”? In Sony, did the Supreme court adopt either of these theories in finding fair use or some other theory?

Market Failure This is a different theory of fair use. What is the market failure argument? How would it resolve Sony? Acuff-Rose?

The Debate over Market Failure Theory What are Professor Lydia Loren’s criticisms of the market failure theory? Do you agree with them?

Fair Use Generally Are all these fair use cases we’ve read just hopelessly inconsistent? Are some of the fair use factors more important than others? How does one advise a client on the issue of fair use? How, if at all, should the doctrine be changed?