From: medic@hardy.u.washington.edu (Travis Lauricella)
Newsgroups: misc.legal.computing,misc.legal
Subject: Re: Out of print material and copyright law
Date: 8 Jan 1993 18:24:10 GMT
Organization: University of Washington
NNTP-Posting-Host: hardy.u.washington.edu


On Fri, 8 Jan 1993, Terry Carroll wrote:

> medic@hardy.u.washington.edu (Travis Lauricella) writes:

> > How does US copyright law pertain to out of print material (whether it be
[snip, snip]

> Looking at 17 USC 107 (the US fair use provision) and its associated 
> doctrine, there are three points necessary to the analysis.  
> 
> First, the fair use qualification not only discusses the market, but, as you 
> noted, the "potential market".
[snip]
> Second, not only are we talking about the market for the work, but also the 
> value of the work.  One of the rights protected by copyright is the right to 
> prepare derivative works.
[snip]
> Third, there are three other fair use considerations which must at a minimum 
> be considered in any judgment of fair use: the purpose and character of the 
> use, the nature of the copyrighted work, and the proportion of the amount 
> used (we're talking 100% here, and that's not a good indicator).
[snip]

Yes.  I had these three points listed in a text at home (Boston University
has a really good Journalism Law class which touches on virtually every
law pertaining to the first amendment) but couldn't remember each of them.

> It's probably also worth remembering that the origin of fair use was to 
> permit criticism and comment, not to make wholesale copies.

Was it?  I thought it also pertained to short term educational use, such
as a teacher copying an article from a newspaper for his/her students.  I
don't remember it speaking of criticism and comment exclusively, although
I could be mistaken.  Either way, I do see that this wouldn't pertain to
copying CW for personal use.

> The statute 
> implicitly assumes that the copyrighted work is being used in another work, 
> not simple wholesale copying.

> All that being said, the fact that it's not in print _does_ have an effect on 
> the fourth factor, and in many cases, that could help you.  But it's not 
> dispositive.

I don't remember, but is fair use an "all of the above" law (meaning
that all three points must be considered) or is it a "one of the above"
law (like the definition of non-obscenity, which states that if one of the
three opints is met, the work is not obscene).

> > In a nutshell, is it illegal to copy software which is out of print?
> 
> Almost certainly.  By copying it, you're devaluing the derivative works right 
> considerably.

I have to disagree with you on this point.  If you change to "..., you're
_often_ devaluing the derivative works right...", then I can agree. 
That's why I made the distinction between CW (an old, old game on a
defunct computer system which has had much better "derivative works," such
as Wolf 3d, designed for working computers) and Windows 3.0 (a work which,
although now outdated, if made free would have substantial impact on the
market for Windows 3.1).  I don't see that free copying of CW (or just
about any Apple //e (or Commodore Vic 20, or TI99/4A) software would have
any real effect on the market.  Because I don't see that any market exists
for it.  However, even though I may not agree, I do see that it is illegal.

[snip]
> My guess, though, is that 
> either one will likely to be deemed an infringement, in which case what the 
> really important question is, is how much will the relative age and market 
> share determine the damages the defendant will be awarded?

Agreed.

> [Digressing footnote deleted]

> (Citation of the case is available on request.  I know where to find it, I 
> just don't have it handy).

I'm familiar with it - it too was in the text.

One more question: I believe the coyright on a work lasts 50 years after
the death of the author (pursuant to the Copyright Act of 1978 - correct
me if I'm wrong.. this is from a faulty memory).  How is the author
determined when the work is from a company?  50 years after the
dissolusion (sp) of the company?  But if the company no longer exists,
there is no one to check with to get permission to copy, nor is there any
chance to have derivative copies made.  I would guess, also, that there
would be no one left to be sued by, either, though, so perhaps this
question is pointless.

-- 
J. Travis Lauricella     | In the 1500's, we called it witchcraft.
<medic@u.washington.edu> | In the 1900's, we called it Murphy's Law.
                         | In the 2300's, we call them chronotron fields.
"Be good, and you will be lonesome." -- Mark Twain
Newsgroups: misc.legal.computing,misc.legal