Required Reading

Judge Richard Posner blogs, sitting in at Lawrence Lessig's.

While he can't talk about pending cases, Judge Posner can revisit Eldred address intelligence reorganization and discuss fair use:

Licensing and Fair Use

the problem for people like Eldred who want to publish old works (works that would have entered the public domain by now were it not for the Act) is transaction costs, not license fees: the costs of locating and negotiating with the current copyright owner. Those costs may well exceed the modest commercial returns from publishing a public domain work (which anyone can copy). The beauty of the old (pre-1976) copyright system, with its requirement of renewal beyond a shortish initial term (like 28 years), was that most copyrights, lacking commercial value by the end of their initial term, were not renewed, and so fell into the public domain, and so licensing costs fell to zero.

Fair Use and Licensing

if someone copies my copyrighted book, that doesn’t interfere with anyone else’s use of the book, or prevent my publisher from continuing to sell copies, though it may reduce his and my income. That’s why “theft” of intellectual property, and such synonyms as “piracy,” are merely analogies, and often misleading ones. It’s hard to see how I could benefit from someone taking a joyride in my car without my permission, but easy to see how I could benefit if a reviewer of one of my books quoted a paragraph of the book in his review without having to get my permission (which would undermine the credibility of the review).

Fair Use Elaborated

The fair use doctrine originated as a judicial doctrine, and like many judicial doctrines was general in terms, setting forth a standard rather than a set of precise rules. Congress put a clumsy thumb in the pudding in 1976, when it “codified” the doctrine. It wasn’t really codification, because Congress did not set down a legislative rule to supplant the judicial one; it just listed four factors for courts to consider, and it made clear, as is sometimes overlooked but as I tried to make clear in my opinion in one of my court’s countless (and fascinating) “Beanie Baby” copyright cases, Ty, Inc. v. Publications Int’l Ltd., that the four factors are neither exclusive nor mandatory.