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> My guess is that they are arguing fair use, but I just don't see how that applies here when they make copyrighted works available, for free, over the Internet
by mlyle 3y ago
> My guess is that they are arguing fair use, but I just don't see how that applies here when they make copyrighted works available, for free, over the Internet.
The fourth part of the fair use test rests on whether the use of the work impacts the commercial market for the work.
Given these works are often:
- Not offered in their original form
- Would likely have little residual commercial value if so offered
- And, the article states, are only accessed by one researcher per month
Indicates that the research, educational, and cultural value from this use likely far outweighs the impact to the commercial use of these works.
- hn_throwaway_99 3y agoJust wanted to say I very much appreciate your thoughtful response. I wasn't aware of the details on the 4 tests of fair use, and your comment led me to some helpful searches. For anyone else who is interested: https://nwtc.libguides.com/c.php?g=43772&p=7188025 https://nwtc.libguides.com/c.php?g=43772&p=7188025
- ramraj07 3y agoCouldn’t one argue that while there’s _minimal_ commercial viability of this work now, it’s still not zero? And that by making these available they could make it zero?
- AnthonyMouse 3y agoZero and minimal are the same thing when it costs non-minimal resources to bring something to market and reach potential customers through advertising etc. When it costs you $15 to make a $10 sale you are not losing money to abandon the market.
- mlyle 3y agoThe test doesn't require there to be no impact on the commercial viability of the work; rather, benefits exceeding the loss in commercial value of the work is one (important) factor arguing in favor of fair use.
- HWR_14 3y agoIf there is value to them, why are the copyright owners not offering a way to pay them?
- rwmj 3y agoBe interesting to know if Sony et al are selling these songs (as MP3s, rather than 78s, I'd assume) and if so how much they make. That would presumably be used to judge the actual commercial value. And this would only apply to the songs which are still in copyright - sadly not zero given they're all by definition at least 70 years old.
- deleted 3y ago[deleted]
- mannyv 3y agoNote that the Supremes recently ruled that commercial use isn't necessarily a gate to fair use. I'm not thinking about the Warhol case. Maybe it was the Oracle/Java case? Also, there are some odd fair use things, like the google books case, which may tilt the court in the archive's favor. Here's a nice site that talks about fair use. https://fairuse.stanford.edu/overview/fair-use/cases/ https://fairuse.stanford.edu/overview/fair-use/cases/
- nottrobin 3y agoI am completely on the IA's side here, and I hope they win the case. Down with copyright. However, "on average, each recording in the collection is only accessed by one researcher per month" seems to me like a dishonest way to present the data. Surely surely there are one or a few recordings in the project that are vastly more popular than others. That's always how it goes. So "on average" completely obscures how popular the most popular ones might be.
- mlyle 3y agoI disagree. A median value might be really misleading (you could have very high usage for 49% of the collection, and nothing for the rest). But assuming average means "mean..." You might have a few hotspots, but there's a very tight upper bound on how many downloads of each item. Further, it argues that the overall collection has a very high research and preservation value compared to the total number of downloads.
- nottrobin 3y agoI don't agree. The size of the set is of paramount importance to that point. They can always bring the mean down by just adding more recordings to the set, to further obscure how popular the most popular recordings are. In a set of 10 billion, of course people aren't listening to most of them. Quite clearly what the plaintiffs are afraid of is that there are a few very popular works in there that they could be making real money from. There's no way to know this from the mean alone.
- dmbche 3y agoThey got 400 000 records in the collection, I don't think they're being dishonest here
- 6510 3y agoThat is far from the truth. The companies have very successful legal departments. They go after the next lowest hanging fruit. They are just working, it's their job description to do this. This is why they will never stop, it never gets too absurd or overly unreasonable. edit: Deleted fake example