In weighing whether Georgia State went too far in its use of unlicensed e-reserves, the judge considered four factors laid out in Section 107 of the U.S. Copyright Act. Those factors are: 1. whether the use is for commercial or nonprofit educational purposes; 2. the nature of the copyrighted work; 3. how much of the whole work is used and how substantive that portion is; and 4. what effect the use in question has on the "potential market for or value of the copyrighted work."Like I said, IANAL. And the difficult thing about Fair Use is that it's a defense after getting hauled into court, not a protection against sued in the first place.
In the judge's analysis, factors Nos. 1 and 2 "favor the defendant every time," Mr. Butler said. He noted that factor No. 4 played somewhat better for the publishers. "She basically said, If there's a licensing market, that favors the rights holder," he said. If the amount of copyrighted material used is small enough, though—a question covered by factor No. 3— "then the judge says, essentially, this is not affecting the market for licensing," he said.
Ms. Sims said that the judge took the educational purpose of each use seriously and did not focus just on market considerations. "That was one of the contentions here—that if you can pay for it, you should be," she said. "And that's clearly not what the court is saying." (source)
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posted by spunweb at 8:05 PM on August 6, 2012