From: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Newsgroups: misc.legal.computing
Subject: Re: Facts about USENET distribution
Date: 30 Jul 92 04:38:32 GMT
Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Organization: Amdahl Corporation

In article <14510.Jul2819.31.5692@virtualnews.nyu.edu>, brnstnd@nyu.edu (Dan 
Bernstein) writes:
> Is an individual reader liable for saving articles from a USENET site?
> Generally, no, because the copying is fair use. Taking my recent article
> on export regulations, chopping my name off it, and selling it as part
> of an information booklet is not fair use. Printing it out and sticking
> it on your refrigerator is fair use.

I agree with the conclusion, but not necessarily the logic.  I don't think 
those uses are necessarily fair use (although they might be, and probably 
are; we'll have to run them through the old fair use algorithm, and that 
requires more facts).

I think it's unnecessary to reach the fair use question in two of the 
examples.  I say that a posting to usenet includes an implied license, which 
license includes personal archival and refrigerator-sticking, but which does 
not include sale in a commercial booklet.  Once you've shown the license, you 
need not even decide on whether the use is fair (of course in real life, a 
lawyer would plead both, in case he lost on th license issue).

My logic would go like this:

Is article copyrighted? yes.
Does user have a license? yes, an implied license.
Does license extend to ...
  personal archival?  Yes; no infringement.
  refrigerator-sticking? Yes; no infringement.
  publication in a booklet for sale? No.

     Is publication in booklet for sale a fair use?  Examine each of the four 
fair use components:

        1) Is the use educational in nature?  If so, then this factor favors 
fair use.  If not, it favors  a finding of infringement.  In this case the 
answer is probably "no", in the institutional sense of the word (which is how 
it's applied), so it favors infringement (if it were being used in 
classrooms, it'd be different).

        2) What is the nature of the copyrighted work?  If factual in nature, 
then this factor favors fair use; if entertainment, then it favors a finding 
of infringement.  Since the hypothetical situation here refers to an 
"information booklet", the leaning is toward "fair use".

        3) What is the amount and substantiality of the portion used, in 
relation to the copyrighted work as a whole?  If only a small percentage of 
the work is used, then this factor favors fair use; if a large percentage is 
used, it favors  a finding of infringement.  In this case, assuming they took 
the whole wazoo posting, it would favor infringement.

        4) The effect of the use on the potential market for or the value of 
the work.  If the market or value is not significantly reduced, this factor 
favors fair use; if the market or value is significantly reduced, it favors a 
finding of infringement.  This factor has been characterized by the US 
Supreme Court as the most important of the four factors.  This is hard to 
characterize in this case, but if someone takes the work and makes money from 
it, the work must have had at least "potential market", and this use prevents 
the copyright owner from giving someone else an exclusive license, so I'd say 
that it did affect the potential market and value for the work (even if the 
owner did not intend to market it).  So this factor favors infringement. 

So, since 3 of the 4 factors (including the most important) favor 
infringement, and only one favors fair use, I think it'd probably be found to 
be infringement.

So like I said, same result as Dan, but a different way of getting there, the 
way I believe would be used in court.

Terry Carroll - tjc50@juts.ccc.amdahl.com - 408/992-2152
The opinions presented above are not necessarily those of a sound mind.