[WikiEN-l] A very interesting recent "fair use" case ruling

[Ray Saintonge]

James wrote:

>It's interesting for many reasons, not least because it is explicit in
>rejecting many of the misunderstandings people have used to object to
>various fair use cases. Hopefully the explicit statements will resolve
>those misunderstandings. Nothing actually new in the decision but it
>makes some things really obvious (I hope! :))
>
Dream on! For me it does add a little more clarity to findings of fair 
use, but for people who demand absolute certainty on the matter no 
amount of fact will ever be convincing. Ultimately each and every claim 
of fair use must be judged on its own merits, and that makes certainty 
impossible.

>First the case itself: a history of the Grateful Dead group, used many
>pictures of posters and tickets where a copyright holder had refused
>permission under fair use and won in a relatively inexpensive summary
>judgment.
>
Seven pictures, not "many".

>"(noting that a work that comments about "pop culture" is not removed
>from the scope of Section 107 [fair use]simply because it is not
>erudite)."
>
>Sadly for those who dislike articles about popular culture, merely
>being about popular culture doesn't remove fair use. :) You get to use
>Beanie Baby pictures as well as the most admired modern art under fair
>use.
>
It's an interesting comment in the way it broadens the view of "cultured".

>"nearly all of the illustrative uses listed in the preamble paragraph
>of § 107 . . . are generally conducted for profit ... Here,
>Illustrated Trip does not exploit the use of BGA's images as such for
>commercial gain. Significantly, DK has not used any of BGA's images in
>its commercial advertising or in any other way to promote the sale of
>the book. Illustrated Trip merely uses pictures and text to describe
>the life of the Grateful Dead. By design, the use of BGA's images is
>incidental to the commercial biographical value of the book."
>
>For those who wonder about fair use and commercial reusers of content
>placed in Wikipedia by its authors. Those commercial users also get
>fair use and that was part of the original intent of fair use law.
>
While it is conceivable that what the downstream user does with the 
Wikipedia's fair-use material may no longer be fair use, it would take 
considerable effort on his part to do that. Changing the transformative 
nature of the Wikipedia material would likely require the stripping out 
of the Wikipedia context. Taking a photo reduced image and blowing it 
back up to poster size will not restore the lost resolution in that 
image. The nature of the copyrighted work is constant without regard to 
who is using it. As long as the transformative nature of our fair use is 
maintained the effect on the copyright owner's markets is unchanged. It 
is also difficult to imagine how the downstream user could or would use 
Wikipedia's fair use material for a purpose other than one of those listed.

I would be interested to see an example of a use of fair-use material 
from Wikipedia become non-fair-use when applied by a downstream user 
without the example being impossibly contrived.

>"We conclude that such use by DK is tailored to further its
>transformative purpose because DK's reduced size reproductions of BGA'
>s images in their entirety displayed the minimal image size and
>quality necessary to ensure the reader's recognition of the images as
>historical artifacts of Grateful Dead concert events. Accordingly, the
>third fair use factor does not weigh against fair use."
>
>Reduced resolution is helpful but do remember that you can use
>whatever size is required. You do need to use sufficient resolution of
>portion so the viewer can clearly see what you're trying to show!
>We're already using suitable sizes, I think, so no change necessary,
>except reassurance for those who wondered whether small images were a
>problem if it was showing a small version of it all.
>
One argument that does not appear to have been raised about resolution 
is that if the software must choose one representative pixel in a block 
of 25 for a 4% sample that process is irreversible.

>"the parties agree that DK's use of the images did not impact BGA's
>primary market for the sale of the poster images."
>
>This should also be the case for almost all uses in Wikipedia, since
>Wikipedia use isn't the same as the originals
>
The footnote on page 20 of the decision is also interesting: "To the 
contrary, had the book been commercially successful – it was not – it 
might have garnered interest in the original images in full size because 
the reduced images have such minimal expressive impact. An afficionado 
might seek more than a “peek.”" Our uses will often enhance the 
marketability of the illustrated material. Maybe they should be paying 
us to include it. ;-)

>On to a bit that often causes confusion... loss of revenue for the
>copyright holder. Best summarized with the simple sentences
>"[C]opyright owners may not preempt exploitation of transformative
>markets. ... Since DK's use of BGA's images falls within a
>transformative market, BGA does not suffer market harm due to the loss
>of license fees." (because it's not entitled to them anyway). Since
>use in Wikipedia will always be transformative, this is very unlikely
>to be a negative factor for a use in Wikipedia.
>
Entitlement to license fees may very well be a product of negotaitions, 
even if that legal entitlement did not previously exist. The point is 
that a negotiated agreement cannot be used to reverse engineer a 
preexisting condition. Such a rationale is no more valid than a proof 
for the existence of God.

>"Appellant argues that DK interfered with the market for licensing its
>images for use in books. Appellant contends that there is an
>established market for licensing its images and it suffered both the
>loss of royalty revenue directly from DK and the opportunity to obtain
>royalties from others. ...
>
>We have noted, however, that 'were a court automatically to conclude
>in every case that potential licensing revenues were impermissibly
>impaired simply because the secondary user did not pay a fee for the
>right to engage in the use, the fourth fair use factor would always
>favor the copyright holder.'
>
In Canadian law where the four factors are not a part of the fair 
dealing provisions in the Copyright Act the Supreme Court has looked 
favorably upon them. Moreover, in dealing with the fourth factor it has 
determined that the burden of proving that a market hurt must lie with 
the owner of the copyright since the user would not normally have access 
to the owner's business records. There is more to market interference 
than simply making an unfounded claim.

>And that's the reasoning that's going to apply to uses in Wikipedia as
>well, for pretty much the same fundamental reasons: transformative use
>and not primarily of value just because of the images, which are
>accompanied by the articles that provide the main part of the content.
>
There does remain the problem of other countries' laws. For the most 
part there appears to be a lot of wind and little fact for interpreting 
the fair dealing provisions of these places. It would be interesting to 
read court precedents on these matters rather than the simple parotting 
of skeletal statutory provisions.

>But once this legal aspect is taken care of, do remember that it's
>nice to seek to replace fair use images with more freely licensed
>images as those become available. Recruit friends, take pictures on
>vacations and around your town and encourage others to do so, so we
>can gradually replace all those that can be replaced. It'll take a
>while to get everyone on the planet working with us so we have done
>this for everything but it'll happen eventually... meanwhile, remember
>we're a wiki and successive improvement over time is one of the
>fundamental principles of wiki use. We don't insist on perfect first
>versions of an article and nor should we do so for images. But we
>should encourage perfection in both over time.
>
Absolutely, but there will always remain topics that can only be 
illustrated by fair use image.

Ec