1. Class 17 Copyright, Autumn, 2016 Fair Use
11/21/2018
Class 17 Copyright, Autumn, 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

2. 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

3. 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

4. 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

5. November 21, 2018
Sega and Fair Use

6. November 21, 2018
Xbox as Loss Leader

7. 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

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

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

10. November 21, 2018
NYT, 8 Oct 2004

11. November 21, 2018
Google Books

12. November 21, 2018
Google Books

13. November 21, 2018
Google Books

14. November 21, 2018
Google Books

15. November 21, 2018

16. “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

17. November 21, 2018
DMCA Rulemaking (Oct 2012)

18. November 21, 2018
DMCA Rulemaking (Oct 2012)

19. November 21, 2018
DMCA Rulemaking (Oct 2012)

20. November 21, 2018
DMCA Rulemaking (28 Oct 2015)

21. November 21, 2018
Orphan Works

22. November 21, 2018
AG Complaint, 20 Sept 2005

23. November 21, 2018
Settlement, 28 Oct 2008

24. 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

25. 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

26. 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

27. November 21, 2018
SDNY Opinion, 22 Mar 2011

28. 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