Quote:
Originally Posted by bill_mchale
The basic problem is that fair use is by definition a nebulous concept. How do you tell consumers what they can or can't do with a copyrighted text unless it is a case the courts have already taken up?
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Bill
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Bill is exactly correct on this. Fair Use is a concept that has arisen entirely through case-law; it is not found in written statute. This means that we know some examples (because courts have ruled on them). Similarly, the courts have said that fair use rights extend beyond those specifically identified in particular court cases... but how far do they go? What is "inside the line" of fair use, and what is not? These questions typically get answered only through litigation and court rulings.
We do, however, know a few other interesting things. For example, companies are not allowed to invoke the DMCA to prohibit uses of their products that were not already prohibited via ordinary copyright law -- at least in two Federal circuit courts. There's no ruling yet in the others, and the Supremes haven't spoken, so those cases are not yet precedent in the rest of the country.
We also know that contracts may place restrictions that go beyond copyright -- but only if they pass all the legal tests for being valid contracts, which standard is (probably? possibly???) not met by click-wrap, shrink-wrap, and web-site terms-of-use 'contracts.' The parenthesized weasel-words are there because, once again, there are some cases that seem indicative in some circuit courts but there are not yet any perfectly clear precedents.
Xenophon
P.S. As a reminder -- circuit courts sometimes use rulings from other circuits (or even the same level in their own circuit) as precedent, but are not bound to do so. Appeals court rulings bind all the lower courts
in that circuit, but may or may not be treated as binding precedent in other circuits. The Supreme Court sorts out the conflicts if and when they deem that the confusion has gotten too bad (and there is a suitable case before them in which to address the issue).
P.P.S. I am not a lawyer and this is not legal advice. Should you need advice on which you may place reliance, please consult a real lawyer. Your mileage may vary. Past performance is not a guarantee of future results...