From: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Newsgroups: misc.legal.computing,misc.legal
Subject: Re: Out of print material and copyright law
Date: 8 Jan 93 03:35:16 GMT
Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Organization: Amdahl Corporation

In article <1iigq7INNji@shelley.u.washington.edu>, 
medic@hardy.u.washington.edu (Travis Lauricella) writes:
> How does US copyright law pertain to out of print material (whether it be
> books, recordings, software, etc.)  My first instinct would be to apply
> the standard copyright law to it (the life of the author + 50 years, isn't
> it?), but under the Fair Use qualifications, a copy made for personal use
> of an out of print material wouldn't affect the potential market for the
> material at all, since being out of print, it has no market.

Looking at 17 USC 107 (the US fair use provision) and its associated 
doctrine, there are two points necessary to the analysis.  

First, the fair use qualification not only discusses the market, but, as you 
noted, the "potential market".  Which means the possibility that the 
copyright owner might choose to re-issue the copyrighted work.  The fact that 
the copyright owner is not currently selling the work means only that the 
work has no market, not that it has no potential market.  

It sounds like I'm playing semantics here, but I'm not.  I recall one case 
where some one sold copies of television "newsclips", by taping news shows 
off the air, and contacting the person who was the subject of the item.  This 
was held to be not fair use, because the television station might have chosen 
to market its clips itself, even though it was not doing so at the time [see 
footnote below for an interesting digression].

Second, not only are we talking about the market for the work, but also the 
value of the work.  One of the righte protected by copyright is the right to 
prepare derivative works.  If you copy an out of print work, there is less of 
a market for any works derived from it.  Given that, there's a reduction in 
the value of the derivative works right, and therefore, in the value of the 
work, even though there may be no effect on the market for the work.  So 
although the statute does not directly call for a weighing of the market 
(actual or potential) of any work other than the work being used (copied), it 
indirectly does so, because the market for derivative works based on the 
copyrighted work determines the value of the derivative works right of the 
copyright.

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).  At least 
these four factors have to be considered in determining whether the use is a 
fair one.

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

> 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.

> If the answer is "not entirely," what would be the difference between
> copying, say, the old Apple //e's Castle Wolfenstein versus copying
> MS Windows 3.0 (since neither are still in print, although Windows 3.0 has
> much more current use).

In each case, it'd be a fact-determined situation.  Assuming C.W. has no 
derivative works likely to be made from it, a copying of C.W. will affect the 
value of the right far less than would a copying of Windows 3.0, which 
clearly is having derivative works being made from it.  That means that it's 
more likely that a copying of C.W. is going to be held to be an infringement 
than would a similar copying of Windows 3.0.  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?


[Digressing footnote:]  IMHO, the court was wrong in finding that the market 
was affected by the defendant's copying of the news clippings.  In the facts 
of the case, the TV station actually destroyed the news shows after a short 
period, so there was nothing they could sell.  In my opinion, each show was 
an individual work with its own copyright.  The television stations 
apparently agree, because when a show airs, you'll note that it displays the 
current year in its copyright notice.  That date is supposed to be the year 
of first publication of a work.  As such, if it is a single work, one must 
suppose that it would have a stable date of first publication.  Given that, 
once the station destroyed their only copies of the work, there was _no_ 
market, actual or potential.  The courts finding that the news station might 
choose to create such a market in the future was mistaken.  The station could 
only create a market for clippings from future shows, not the ones that had 
been destroyed by the station and were being copied by the defendant.

Of course, as I noted above, there are three other factors in a determination 
of fair use.  The purpose and character of the defendant's use _was_ 
commercial, which was a strike against him.  But the nature of the 
copyrighted news show was a work of fact, not of entertainment, which is a 
strike in the defendant's favor; similarly, I think (I could be wrong, my 
memory is foggy here) he sold only the news story in which the particular 
customer appeared, not the whole news show.  If this is the case, then that's 
another point in defendant's favor.  Coupled with the _correct_ finding that 
there is no effect on the market, I think that this should have been found to 
be a fair use.  (Hell, I think that when a copyright owner destroys the last 
remaining authorized copy of a work, there's a good argument that he's 
renounced the copyright;  the courts have rejected that view, though).

All that being said, while I believe the case was wrongly decided, the 
particular premise for which I cited it (that the potential, and not merely 
the actual, market is what must be considered in a determination of fair use) 
is sound.

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

 -tc


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