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If you want to disregard what the United States Supreme Court has said directly on the point of fair use, feel free.

I thought it was on point. I could be wrong.

I'm sorry, but I'll give a bit more weight to the Supreme Court's fair use analysis than yours.

You do have better hair than Scalia tho..

Why do you think I am disregarding what they said?

Here is exactly what they said!

HARPER & ROW v. NATION ENTERPRISES, 471 U.S. 539 (1985)
471 U.S. 539
HARPER & ROW, PUBLISHERS, INC., ET AL. v. NATION ENTERPRISES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 83-1632.

Argued November 6, 1984
Decided May 20, 1985



In 1977, former President Ford contracted with petitioners to publish his as yet unwritten memoirs. The agreement gave petitioners the exclusive first serial right to license prepublication excerpts. Two years later, as the memoirs were nearing completion, petitioners, as the copyright holders, negotiated a prepublication licensing agreement with Time Magazine under which Time agreed to pay $25,000 ($12,500 in advance and the balance at publication) in exchange for the right to excerpt 7,500 words from Mr. Ford's account of his pardon of former President Nixon. Shortly before the Time article's scheduled release, an unauthorized source provided The Nation Magazine with the unpublished Ford manuscript. Working directly from this manuscript, an editor of The Nation produced a 2,250-word article, at least 300 to 400 words of which consisted of verbatim quotes of copyrighted expression taken from the manuscript. It was timed to "scoop" the Time article. As a result of the publication of The Nation's article, Time canceled its article and refused to pay the remaining $12,500 to petitioners. Petitioners then brought suit in Federal District Court against respondent publishers of The Nation, alleging, inter alia, violations of the Copyright Act (Act). The District Court held that the Ford memoirs were protected by copyright at the time of The Nation publication and that respondents' use of the copyrighted material constituted an infringement under the Act, and the court awarded actual damages of $12,500. The Court of Appeals reversed, holding that The Nation's publication of the 300 to 400 words it identified as copyrightable expression was sanctioned as a "fair use" of the copyrighted material under 107 of the Act. Section 107 provides that notwithstanding the provisions of 106 giving a copyright owner the exclusive right to reproduce the copyrighted work and to prepare derivative works based on the copyrighted work, the fair use of a copyrighted work for purposes such as comment and news reporting is not an infringement of copyright. Section 107 further provides that in determining whether the use was fair the factors to be considered shall include: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the [471 U.S. 539, 540] copyrighted work as a whole; and (4) the effect on the potential market for or value of the copyrighted work.

Held:

The Nation's article was not a "fair use" sanctioned by 107. Pp. 542-569.

(a) In using generous verbatim excerpts of Mr. Ford's unpublished expression to lend authenticity to its account of the forthcoming memoirs, The Nation effectively arrogated to itself the right of first publication, an important marketable subsidiary right. Pp. 545-549.

(b) Though the right of first publication, like other rights enumerated in 106, is expressly made subject to the fair use provisions of 107, fair use analysis must always be tailored to the individual case. The nature of the interest at stake is highly relevant to whether a given use is fair. The unpublished nature of a work is a key, though not necessarily determinative, factor tending to negate a defense of fair use. And under ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use. Pp. 549-555.

(c) In view of the First Amendment's protections embodied in the Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, there is no warrant for expanding, as respondents contend should be done, the fair use doctrine to what amounts to a public figure exception to copyright. Whether verbatim copying from a public figure's manuscript in a given case is or is not fair must be judged according to the traditional equities of fair use. Pp. 555-560.

(d) Taking into account the four factors enumerated in 107 as especially relevant in determining fair use, leads to the conclusion that the use in question here was not fair. (i) The fact that news reporting was the general purpose of The Nation's use is simply one factor. While The Nation had every right to be the first to publish the information, it went beyond simply reporting uncopyrightable information and actively sought to exploit the headline value of its infringement, making a "news event" out of its unauthorized first publication. The fact that the publication was commercial as opposed to nonprofit is a separate factor tending to weigh against a finding of fair use. Fair use presupposes good faith. The Nation's unauthorized use of the undisseminated manuscript had not merely the incidental effect but the intended purpose of supplanting the copyright holders' commercially valuable right of first publication. (ii) While there may be a greater need to disseminate works of fact than works of fiction, The Nation's taking of copyrighted expression exceeded that necessary to disseminate the facts and infringed the copyright holders' interests in confidentiality and creative control over the first public appearance of the work. (iii) Although the verbatim quotes [471 U.S. 539, 541] in question were an insubstantial portion of the Ford manuscript, they qualitatively embodied Mr. Ford's distinctive expression and played a key role in the infringing article. (iv) As to the effect of The Nation's article on the market for the copyrighted work, Time's cancellation of its projected article and its refusal to pay $12,500 were the direct effect of the infringing publication. Once a copyright holder establishes a causal connection between the infringement and loss of revenue, the burden shifts to the infringer to show that the damage would have occurred had there been no taking of copyrighted expression. Petitioners established a prima facie case of actual damage that respondents failed to rebut. More important, to negate a claim of fair use it need only be shown that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work. Here, The Nation's liberal use of verbatim excerpts posed substantial potential for damage to the marketability of first serialization rights in the copyrighted work. Pp. 560-569.

723 F.2d 195, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which WHITE and MARSHALL, JJ., joined, post, p. 579.

No, that is a SUMMARY of what they said. The actual case on Lexis is 75 pages long.


What I posted were quotations directly from the case. I will re-post and put the direct quotes from the case in blue.

The four factors identified by Congress as especially relevant in determining whether the use was fair are: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as a whole; (4) the effect on the potential market for or value of the copyrighted work. Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 560-561 (U.S. 1985)

I believe factors one and four are most important here.

The fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use. "[Every] commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright." Id. Quoting Sony Corp. of America v. Universal City Studios, Inc., 464 U.S., at 451.

The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price. Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 562 (U.S. 1985); See also Roy Export Co. Establishment v. Columbia Broadcasting System, Inc., 503 F.Supp., at 1144; 3 Nimmer § 13.05[A][1], at 13-71, n. 25.3;

A 1-1 KJ paid the customary price for the copyrighted material.

Effect on the Market. Finally, the Act focuses on "the effect of the use upon the potential market for or value of the copyrighted work." This last factor is undoubtedly the single most important element of fair use. n9 See 3 Nimmer § 13.05[A], [**2234] at 13-76, and cases cited therein. HN24"Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied." 1 Nimmer § 1.10[D], at 1-87. Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 567 (U.S. 1985)


Again, A 1-1 KJ paid the customary price for the copyrighted material (CD+G discs). The only argument that a 1-1 media shift materially impairs the marketability of the work copied is the argument that the KJ who 1-1 shifted CD+G product to MP3+G will not re-purchase the same tracks as downloads or other files in MP3 format specifically for computer use in the future.

I think you are missing the big picture when it comes to fair use the copyright laws are sprinkled with four little words throughout that are very significant!

protects all noncommercial copying

making a digital audio copied recording for private use

commercial use not a protected

When these laws were inacted the distinction between private noncommercial use and commercial use were carefully placed!

According to you, commercial use can NEVER be fair use? I respectfully dissent.

Yes what I posted was the summary and final opinion of the case not excerpts from it, this is what the final judgement of the court was on the case.

A summary is what they do when they post their decision. They found that Nation's did infringe the copyright of Harper and Row and they weighed carefully the fair use clause in the copyright law which were the excerpts you posted.

The point is regardless or in spite of the exceptions to the rights of the copyright holder they still infringed because they simply used too much of the Ford manuscript in their article and damaged the viability of the market for the product.

But my question is where do you see in any of this for a KJ using transfered product in a commercial setting as being protected under 107?

And to clarify

HARPER & ROW v. NATION ENTERPRISES, 471 U.S. 539 (1985)
471 U.S. 539
HARPER & ROW, PUBLISHERS, INC., ET AL. v. NATION ENTERPRISES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 83-1632.

Argued November 6, 1984
Decided May 20, 1985


This is the summary (that the court does of the case)

In 1977, former President Ford contracted with petitioners to publish his as yet unwritten memoirs. The agreement gave petitioners the exclusive first serial right to license prepublication excerpts. Two years later, as the memoirs were nearing completion, petitioners, as the copyright holders, negotiated a prepublication licensing agreement with Time Magazine under which Time agreed to pay $25,000 ($12,500 in advance and the balance at publication) in exchange for the right to excerpt 7,500 words from Mr. Ford's account of his pardon of former President Nixon. Shortly before the Time article's scheduled release, an unauthorized source provided The Nation Magazine with the unpublished Ford manuscript. Working directly from this manuscript, an editor of The Nation produced a 2,250-word article, at least 300 to 400 words of which consisted of verbatim quotes of copyrighted expression taken from the manuscript. It was timed to "scoop" the Time article. As a result of the publication of The Nation's article, Time canceled its article and refused to pay the remaining $12,500 to petitioners. Petitioners then brought suit in Federal District Court against respondent publishers of The Nation, alleging, inter alia, violations of the Copyright Act (Act). The District Court held that the Ford memoirs were protected by copyright at the time of The Nation publication and that respondents' use of the copyrighted material constituted an infringement under the Act, and the court awarded actual damages of $12,500. The Court of Appeals reversed, holding that The Nation's publication of the 300 to 400 words it identified as copyrightable expression was sanctioned as a "fair use" of the copyrighted material under 107 of the Act. Section 107 provides that notwithstanding the provisions of 106 giving a copyright owner the exclusive right to reproduce the copyrighted work and to prepare derivative works based on the copyrighted work, the fair use of a copyrighted work for purposes such as comment and news reporting is not an infringement of copyright. Section 107 further provides that in determining whether the use was fair the factors to be considered shall include: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the [471 U.S. 539, 540] copyrighted work as a whole; and (4) the effect on the potential market for or value of the copyrighted work.

This is the final decision (it is not a summary)

Held:

The Nation's article was not a "fair use" sanctioned by 107. Pp. 542-569.

(a) In using generous verbatim excerpts of Mr. Ford's unpublished expression to lend authenticity to its account of the forthcoming memoirs, The Nation effectively arrogated to itself the right of first publication, an important marketable subsidiary right. Pp. 545-549.

(b) Though the right of first publication, like other rights enumerated in 106, is expressly made subject to the fair use provisions of 107, fair use analysis must always be tailored to the individual case. The nature of the interest at stake is highly relevant to whether a given use is fair. The unpublished nature of a work is a key, though not necessarily determinative, factor tending to negate a defense of fair use. And under ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use. Pp. 549-555.

(c) In view of the First Amendment's protections embodied in the Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, there is no warrant for expanding, as respondents contend should be done, the fair use doctrine to what amounts to a public figure exception to copyright. Whether verbatim copying from a public figure's manuscript in a given case is or is not fair must be judged according to the traditional equities of fair use. Pp. 555-560.

(d) Taking into account the four factors enumerated in 107 as especially relevant in determining fair use, leads to the conclusion that the use in question here was not fair. (i) The fact that news reporting was the general purpose of The Nation's use is simply one factor. While The Nation had every right to be the first to publish the information, it went beyond simply reporting uncopyrightable information and actively sought to exploit the headline value of its infringement, making a "news event" out of its unauthorized first publication. The fact that the publication was commercial as opposed to nonprofit is a separate factor tending to weigh against a finding of fair use. Fair use presupposes good faith. The Nation's unauthorized use of the undisseminated manuscript had not merely the incidental effect but the intended purpose of supplanting the copyright holders' commercially valuable right of first publication. (ii) While there may be a greater need to disseminate works of fact than works of fiction, The Nation's taking of copyrighted expression exceeded that necessary to disseminate the facts and infringed the copyright holders' interests in confidentiality and creative control over the first public appearance of the work. (iii) Although the verbatim quotes [471 U.S. 539, 541] in question were an insubstantial portion of the Ford manuscript, they qualitatively embodied Mr. Ford's distinctive expression and played a key role in the infringing article. (iv) As to the effect of The Nation's article on the market for the copyrighted work, Time's cancellation of its projected article and its refusal to pay $12,500 were the direct effect of the infringing publication. Once a copyright holder establishes a causal connection between the infringement and loss of revenue, the burden shifts to the infringer to show that the damage would have occurred had there been no taking of copyrighted expression. Petitioners established a prima facie case of actual damage that respondents failed to rebut. More important, to negate a claim of fair use it need only be shown that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work. Here, The Nation's liberal use of verbatim excerpts posed substantial potential for damage to the marketability of first serialization rights in the copyrighted work. Pp. 560-569.

723 F.2d 195, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which WHITE and MARSHALL, JJ., joined, post, p. 579.


And you need to pick colors that work with the gray background here you can't read the dark colors against the gray!

It's not according to me, it's in black and white in Title 17 of the U.S. Code!

True. I see it all so clearly now. Why were those silly US Supreme Court Justices discussing fair use in a commercial context when it is spelled out so clearly in black and white in Title 17 of the US Code? What morons!

And again we are arguing points that aren't even in contention the lawsuits are being filed under trademark violations!

Show me the one case where they were arguing fair use for commercial use!

Here let me help you this is an excerpt from one of your listed cases, (please not the bolded portions)!

Sony Corp. of America v. Universal City Studios, Inc., 464 U.S., at 451.

[46] Even unauthorized uses of a copyrighted work are not necessarily infringing. An unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific exclusive rights conferred by the copyright statute. Twentieth Century Music Corp. v. Aiken, 422 U.S., at 154-155. Moreover, the definition of exclusive rights in � 106 of the present Act is prefaced by the words "subject to sections 107 through 118." Those sections describe a variety of uses of copyrighted material that "are not infringements of copyright" "notwithstanding the provisions of section 106." The most pertinent in this case is � 107, the legislative endorsement of the doctrine of "fair use." [n29] [p*448] That section identifies various factors [n30] that enable a court to apply an "equitable rule of reason" analysis to particular claims of infringement. [n31] Although not conclusive, the first [p*449] factor requires that "the commercial or nonprofit character of an activity" be weighed in any fair use decision. [n32] If the Betamax were used to make copies for a commercial or profit-making purpose, such use would presumptively be unfair. The contrary presumption is appropriate here, however, because the District Court�s findings plainly establish that time-shifting for private home use must be characterized as a noncommercial, nonprofit activity. Moreover, when one considers the nature of a televised copyrighted audiovisual work, see 17 U. S. C. � 107(2) (1982 ed.), and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact [p*450] that the entire work is reproduced, see � 107(3), does not have its ordinary effect of militating against a finding of fair use. [n33] This is not, however, the end of the inquiry because Congress has also directed us to consider "the effect of the use upon the potential market for or value of the copyrighted work." � 107(4). The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder�s ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author�s incentive to create. The prohibition of such noncommercial uses would [p*451] merely inhibit access to ideas without any countervailing benefit. [n34] although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.

Yep it looks like those morons read it after all!;)

Um, the dark blue parts I posted above. They (SUPREME COURT JUSTICES) were basically saying (IMHO) that commercial use cuts against fair use, but if you pay for the product, and the copy doesn't take market share from the original, it might be fair use.

here's another case where "they" were arguing fair use for commercial use: Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).

But read the whole case. NOT the summary.

Um... It is a summary. The text of the entire case can be read here: http://www.law.cornell.edu/copyright/ca ... US_539.htm


I'm tired of arguing this point. You think a 1-1 media shift is illegal without permission, I'm not so sure. Let's leave it it at that.

So did the outcome change?

Decision taken directly as you posted from" Cornell University Law Schools publication"

[1] This case requires us to consider to what extent the "fair use" provision of the Copyright Revision Act of 1976 (hereinafter [p*542] the Copyright Act), 17 U.S.C. � 107, sanctions the unauthorized use of quotations from a public figure's unpublished manuscript. In March, 1979, an undisclosed source provided The Nation Magazine with the unpublished manuscript of "A Time to Heal: The Autobiography of Gerald R. Ford." Working directly from the purloined manuscript, an editor of The Nation produced a short piece entitled "The Ford Memoirs -- Behind the Nixon Pardon." The piece was timed to "scoop" an article scheduled shortly to appear in Time Magazine. Time had agreed to purchase the exclusive right to print prepublication excerpts from the copyright holders, Harper & Row Publishers, Inc. (hereinafter Harper & Row), and Reader's Digest Association, Inc. (hereinafter Reader's Digest). As a result of The Nation article, Time canceled its agreement. Petitioners brought a successful copyright action against The Nation. On appeal, the Second Circuit reversed the lower court's finding of infringement, holding that The Nation's act was sanctioned as a "fair use" of the copyrighted material. We granted certiorari, 467 U.S. 1214 (1984), and we now reverse.

versus


the decision taken directly from http://supreme.justia.com/us/471/539/ (Note that would be the U.S. Supreme Court)

Held:

The Nation's article was not a "fair use" sanctioned by 107. Pp. 542-569.

(a) In using generous verbatim excerpts of Mr. Ford's unpublished expression to lend authenticity to its account of the forthcoming memoirs, The Nation effectively arrogated to itself the right of first publication, an important marketable subsidiary right. Pp. 545-549.

(b) Though the right of first publication, like other rights enumerated in 106, is expressly made subject to the fair use provisions of 107, fair use analysis must always be tailored to the individual case. The nature of the interest at stake is highly relevant to whether a given use is fair. The unpublished nature of a work is a key, though not necessarily determinative, factor tending to negate a defense of fair use. And under ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use. Pp. 549-555.

(c) In view of the First Amendment's protections embodied in the Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, there is no warrant for expanding, as respondents contend should be done, the fair use doctrine to what amounts to a public figure exception to copyright. Whether verbatim copying from a public figure's manuscript in a given case is or is not fair must be judged according to the traditional equities of fair use. Pp. 555-560.

(d) Taking into account the four factors enumerated in 107 as especially relevant in determining fair use, leads to the conclusion that the use in question here was not fair. (i) The fact that news reporting was the general purpose of The Nation's use is simply one factor. While The Nation had every right to be the first to publish the information, it went beyond simply reporting uncopyrightable information and actively sought to exploit the headline value of its infringement, making a "news event" out of its unauthorized first publication. The fact that the publication was commercial as opposed to nonprofit is a separate factor tending to weigh against a finding of fair use. Fair use presupposes good faith. The Nation's unauthorized use of the undisseminated manuscript had not merely the incidental effect but the intended purpose of supplanting the copyright holders' commercially valuable right of first publication. (ii) While there may be a greater need to disseminate works of fact than works of fiction, The Nation's taking of copyrighted expression exceeded that necessary to disseminate the facts and infringed the copyright holders' interests in confidentiality and creative control over the first public appearance of the work. (iii) Although the verbatim quotes [471 U.S. 539, 541] in question were an insubstantial portion of the Ford manuscript, they qualitatively embodied Mr. Ford's distinctive expression and played a key role in the infringing article. (iv) As to the effect of The Nation's article on the market for the copyrighted work, Time's cancellation of its projected article and its refusal to pay $12,500 were the direct effect of the infringing publication. Once a copyright holder establishes a causal connection between the infringement and loss of revenue, the burden shifts to the infringer to show that the damage would have occurred had there been no taking of copyrighted expression. Petitioners established a prima facie case of actual damage that respondents failed to rebut. More important, to negate a claim of fair use it need only be shown that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work. Here, The Nation's liberal use of verbatim excerpts posed substantial potential for damage to the marketability of first serialization rights in the copyrighted work. Pp. 560-569.

723 F.2d 195, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which WHITE and MARSHALL, JJ., joined, post, p. 579.

I fail to see the difference!

Yes, I agree when faced with the facts that commercial use is not sanctioned as fair use in any case presented that there is no point in debating that issue further.

I posted the name of a case. Guess you missed it. Here's a link. There are more, but one at a time for now...

http://www.law.cornell.edu/supct/html/92-1292.ZS.html


By the way, you must click on the link titled Opinion [ Souter ] to read the ACTUAL LAW from the case, Souter's Majority opinion. The rest is just a SUMMARY.

Ok, how bout this one.

http://scholar.google.com/scholar_case? ... 1977220880

Still smug in your assertion?

I'll keep posting cases if you like.

I guess you missed this



And again you really need to read the case you are refering to. 2 Live Crew did not use the entire Roy Orbison song nor the music in it, it was an entirely different song used to critisize the orgional Song "Pretty Woman", now where do you see that in a reflection to our using a copy of an entire work for commercial gain?

And once again I must point out that we are arguing a point that is not even in contention the issue is not copyright it is trademark!

Sure keep posting them and I will keep pointing out where you are wrong.

but first yoiu really need to read the actual rulings of the case

CONCLUSION

We hold that Arriba's reproduction of Kelly's images for use as thumbnails in Arriba's search engine is a fair use under the Copyright Act. However, we hold that the district court should not have reached whether Arriba's display of Kelly's full-sized images is a fair use because the parties never moved for summary judgment on this claim and Arriba never conceded the prima facie case as to the full-size images. The district court's opinion is affirmed as to the thumbnails and reversed as to the display of the full-sized images. We remand for further proceedings consistent with this opinion. Each party shall bear its own costs and fees on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.


And Arriba wasn't selling or profitting from the images just posting them as a function of a search engine, posting the thunbnails was ruled fair use but it wasn't for commercial gain. The part about the larger images (which were capable of being reproduced by the general public) was reversed and remanded.

Care to take a stab at what the results were in the rehearing?

I presented the 2 cases to debunk your point that commercial use can NEVER be fair use. If you still hold that stance, any further debate is useless.

You point out different facts in each of the cases. To what end? Of course all cases are based on different factual scenarios.

You have your opinion on how a judge may apply the four "fair use" factors in the case of a a 1-1 media shift, and I have mine.

IMHO the Trademark claim is intertwined with "fair use" in the copyright context; however I need to do more research on this before I form a final opinion. (which would still only be just that: the opinion of a person who is NOT an IP attorney.)

The problem is that the two cases you presented to "debunk" my position only go to reinforce it. Of the cases you presented the only one that you can even come close to saying it was for commerical use is the 2 Live Crew case, and I am sorry but I covered that one with the PARODY exclusion much earlier. And as I posted the actual judgement of the court in that decision and pointed out to you that the 2 Live Crew song was a totally different song using one line from the Roy Orbison song should have registered with you.

All of the cases you presented so far (except for 2 Live Crew) had final decisions directly in conflict for your conclusions and as I pointed out above the 2 Live Crew song was covered under PARODY.

Actually I don't have my opinion of how the judges would apply the four corners of fair use we both have the actual opinions of the Judges and how they did actually apply 107!

But I truly enjoy your efforts and if you could possibly hit one I will be the first to give you a big hurah!