We know from the recent Salinger/Colting case discussed here that prior restraints on speech must be weighed when we look at injunctions in the copyright infringement context.
But what about in the fair use context? Let's look at the statute and think about a documentary filmmaker who wants to make a "fair use" of someone else's copyrighted work:
Section 107 of the Copright Act - 17 U.S.C. § 107. Limitations on exclusive rights: Fair use provides:
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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
The Digital Millenium Copyright Act makes it a crime to circumvent encryption to rip someone else's copyrighted materials. So isn't that criminal statute an impermissible prior restraint on free speech?
Doc filmmakers can't make good quality films without ripping DVDs. They can get lower quality elsewhere.
The Copyright Office should act soon because the International Documentary Association has asked that the exemptions to the DMCA be reviewed. HT to Techdirt, Hillicon Valley, reports here. Mike Masnick at Techdirt is pessimistic, read the link:
Documentary Filmmakers Want DMCA Exemption; But Almost Definitely Won't Get It Techdirt
Purchase Copyright Litigation Handbook from West here
Friday, June 18, 2010
Fair Use Fridays: Ripping DVDs For Documentary Films - Is There A Right To High Quality Free Speech?
Labels: copyright infringement, copyright law, digital millenium copyright act, DMCA, documentary films, fair use doctrine, film law, film production, ip, Law, licensing law, ripping dvds
Partner in Manhattan law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2015-2016). The New York Law Journal called it "an indispensable guide". Serve on the Board of Directors of the Federal Bar Association, served as Chair of the Circuit Vice Presidents, Vice President for the Second Circuit and General Counsel. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.