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Isaac
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Re: patent or copyright?
« Reply #5 on: Dec 21st, 2005, 8:08am »
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I don't know what year you were referring to because your post has a smiley replacing the final digit. All the hits I get on google show that the case year is 1998
 
I would have thought that a fair use defense ought to have justified the defendant's use in Castle Rock, but fair use decisions are generally easy to second guess.
 
« Last Edit: Dec 21st, 2005, 8:13am by Isaac » IP Logged

Isaac
Mark McCormick
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Re: patent or copyright?
« Reply #6 on: Dec 21st, 2005, 2:21pm »
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I believe the courts ruled in Seinfeld  favor because it was a market that Castle Rock could potentially exploit in the future.  The courts said the copyright owner controlled potential future markets that it has not yet exploited.  I had this in a copyright class this year.
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Isaac
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Re: patent or copyright?
« Reply #7 on: Dec 21st, 2005, 4:18pm »
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The affect on a potential market is certainly relevant to one of the statutory factors not supporting fair use, but the Supreme Court has said no single factor, not even commercial use is dispositive (Acuff Rose).
 
Four statutory factors, with no statutory guidance as to how they ought to be weighed butwith express wording that the factors are not exhaustive.  The only guidance is to do equity.   Given that to work with, predicting fair use in a situation where there is no close precedent is not an easy game.
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Isaac
mactheknife
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Re: patent or copyright?
« Reply #8 on: Dec 21st, 2005, 4:48pm »
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This is actually very interesting.  I think it's kind of silly to weigh the fourth factor in Castle Rock's favor simply because it would "in general develop or license to develop" a market for quiz games.  I mean, Les Kelly could have licensed to develop or license to develop a market for thumbnails of his photos.  Sony could have developed or licensed to develop Playstation emulation software.  Yet in these instances (Kelly v. Arriba Soft, Sony v. Connectix) the activities of the "infringers" were eventually found to be fair use.  And if I've shot amateur footage of a police beating, I would certainly try to develop a market for its inclusion in newscasts.  What will be interesting is in the Google copyright suits, if a court buys the publishers' "we were just about to license the internet indexing of all our books, but Google beat us to it by a day!" argument.
 
In addition, the first factor analysis (whether the quiz is "transformative") seems a little mucky to me as well.  The purpose may have been "entertainment," but what was the purpose of Pretty Woman in Campbell?  Academic discourse?  To me, if the Supreme Court can stretch 2 Live Crew's lyrics to be criticism or commentary on the original Orbison work, certainly the 2nd Cir. could have applied the same stretching to a quiz game.
 
Oh well, whatever.  First set of exams are done.  Going to dinner to celebrate...
 Grin
 
Justin
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Isaac
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Re: patent or copyright?
« Reply #9 on: Dec 21st, 2005, 8:00pm »
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In Acuff Rose, the Supreme Court never said that the Crew's parody was fair use.  Instead they said treating commercial use as dispositive of the issue was improper.
The raunchy boys music did not really survive the test of time, but they made it into IP law casebooks.
 
Sometimes it's hard to avoid a cynical conclusion that fair use analyses are results driven.
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Isaac
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