LAW OFFICES OF RICHARD KOMAN

Archive for April, 2009|Monthly archive page

Students v iParadigm: Archiving papers in database is Fair Use

In Uncategorized on April 21, 2009 at 6:08 am

iParadigms’ TurnItIn.com is a service marketed to high schools and colleges in which student papers are entered into a database and then pattern-checked for signs of plagiarism. Several students in Northern Virginia came up with a clever attack on the service: a lawsuit claiming copyright infringement.

But iParadigms argued their use of the student papers was fair use and not a copyright infringement. The District Court agreed and granted summary judgment in iParadigms’ favor.

Last week, the Fourth Circuit Court of Appeals upheld the district court’s decision. The case adds some interesting perspective on fair use doctrine.

Read the decision here

By statute, courts must consider four factors in determining if there was fair use. Here’s a look at how the court addressed each of the factors.

1. Tranformation

Despite the Supreme Court’s warning that the fourth factor, the impact on the market for the original work, is the most important factor, I would argue that it is this idea of a transformative alteration of the work that is most important as it pervades all four of the factors.
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The Fair Use Statute

In Uncategorized on April 21, 2009 at 5:27 am

Here’s the text of 17 U.S.C. § 107, the federal statute that sets the standard for the Fair Use Doctrine.

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Pirate Bay founders guilty

In Uncategorized on April 18, 2009 at 11:27 pm

It is not fair use – at least in Sweden – to point to millions of copyright-infringing torrents and sell advertising on the portal. As I reported on government.zdnet.com, a Swedish court found the four founders of the Pirate Bay guilty of criminal and civil copyright offenses. It’s doubtful they would be convicted in the U.S., since they didn’t actually host any content. My govtech post is below:

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