Re: digital-copyright Digest 18 Mar 2009 15:00:00 -0000 Issue 872

[Lmtimallmtima@xxxxxxx]

John has provided an excellent summary of the law- the only thing I would
add concerns the limited reach of the Tasini decision. Unfortunately the only
issue that reached the Supreme Court was whether was the digital use in that
case qualified as a revision under section 201, consequently, whether the
parties' contractual arrangements covered the use (your issue), or whether the
use constituted a Fair Use (issues that had been raised in the lower courts)
was
 not decided. As an interesting side note, the Court did make a  "dicta
observation" regarding microfilm use, and essentially assumed that  such use
would
constitute a revision; I don't think that's correct, however,  given that
copying on to microfilm is simply making a copy (as John so  thoroughly
explained). I've written a piece discussing all of these issues and
suggesting a way to
draft and interpret these kinds of agreements  (bTasini and Its Progeny: The
New Exclusive Right Or Fair Use  on the Electronic Publishing Frontier?b 14
Ford. Intell. Prop., Media &  Ent. L. J. 369 (2004)) if you'd like further
background, but I agree with John  that it all comes down to interpreting the
agreement, with a possible Fair Use  defense available as well.

lateef


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