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April 20, 2004
Bad Faith Fair Use
Posted by Jason Schultz
The Second Circuit Court of appeals today issued a ruling that republication on the Internet of quotes from an illegally acquired seminar manual can still be fair use, despite the fact that they were acquired in bad faith. The Court held that while good/bad faith does factor into the equation, the overall issue of transformation is what is most important to deciding what is fair and what isn't.
While the majority opinion will only hold interest for the true lawgeeks in the audience, I recommend reading Judge Dennis Jacob's concurring opinion which contains many spirited exhibitions on fair use, including this gem:
"Fair use is not a doctrine that exists by sufferance, or that is earned by good works and clean morals; it is a right--codified in § 107 and recognized since shortly after the Statute of Anne--that is “necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of science and the useful arts . . . .’”
Comments (6)
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1. Barry Ritholtz on April 21, 2004 7:20 AM writes...
Nice find . . .
Were they (the music industry) actually that stupid to argue a "bad faith" element to fair usage?
Consider the irony of the concurrence if that were so: What would happen to copyrights if we imposed a doctrine of clean hands on top of the basic property right?
Consider all of the record labels past dealings (payola, MAP pricing, egregious contracts,price fixing, anti-competitive actions, etc.).
They'd better hope there is no good faith component . . .
Permalink to Comment2. Nick Douglas on April 21, 2004 8:28 AM writes...
Does this mean that even if I could feasibly get material from a non-infringing source, it's okay to get it from an infringing source for my fair use (for now ignoring the issue of whether the act of acquiring it was still illegal)?
Permalink to Comment3. Jason Schultz on April 21, 2004 10:09 AM writes...
The majority opinion says that good/bad faith is a part of the analysis, just not a big one. So, yes, it does matter, but if you make a transformative use (like a critique or parody), the transofrmation wil likely trump any bad faith finding and it will still be fair use.
Oh, and BTW, there is an unclean hands doctrine in copyright law.
Permalink to Comment4. Creighton Frommer on April 21, 2004 11:50 AM writes...
This decision should also further support news article, review, and commentary authors discussing DMCA and other copyright violations.
Where the actual substance of an alleged infringing workaround (DeCSS) or alleged infringed copyright (Microsoft's published source code) should be excerpted to add quality to the discussion, the author would not feel as threatened by the original author based on the alleged infringer's intentions.
Permalink to Comment5. Matt Perkins on April 22, 2004 8:46 AM writes...
What am I doing wrong? I get a 'cannot connect to server' error, even when I go through the www.ca2.uscourts.gov site.
Is there a mirror ... ?
Permalink to Comment--matt
6. Jordan on July 6, 2004 2:31 AM writes...
Don't forget about security. Secureroot.org
Permalink to Comment