Friday, March 21, 2008

According to the March 7, 2008 edition of the Courts Consumer Electronics Daily, Judge Pierre Leval, speaking on the Wednesday just two weeks ago at the State Bar of California's annual Copyright Office Comes to California event in San Francisco, explained that the lower courts had been making a mess out of the fair use doctrine
until Justice David Souter's "magnificent opinion in Campbell v. Acuff Rose" in 1994, Leval said. The ruling followed Leval's analysis in explaining that the key questions in fair use are whether a work accused of infringing has a "different objective" from the plaintiff's, and so is "transformative," and whether it competes with the original work, the judge said. The fair-use debate is polarized between "extremist points of view," including a copyright-enforcement "protectionist" position that criticizes Campbell and the 9th Circuit decision in Perfect 10 v. Google as protecting "perfect copies as fair use," Leval said. Perfect 10, which allowed Google to present searchers with thumbnail versions of Perfect 10 photos of naked women, has been called "a triumph of the mind sound bite over reasoned analysis," but "to the contrary," it's "a truly thoughtful and reasoned opinion," he said. Of course an exact a copy can be a fair use, Leval said: Otherwise, a museum wouldn't be free to use small copies of famous paintings like the Mona Lisa on wall signs and floor maps to send visitors to the originals. Newspapers have to be able to publish images of stolen paintings, and publishers must be able to decide whether they lawfully can distribute investigative articles by looking at them, without determining whether a writer used the deceit sometimes needed to get copyrighted documents to write them, he said. "The free expression camp" at the other end of the spectrum also is off-base in contending that copy-making should be protected unconditionally as freedom of speech, Leval said. Getting rid of copyright would "fatally damage" creation, he said. Even "moderates" make "exaggerated" complaints that the standards for fair use are too loose to make outcomes predictable enough, Leval said. A shifting terrain is bound to create some uncertainty, but "bright line" rules might not be worth the bad results they would produce, he said. (hyper links added)

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