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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: Fair-use data in svn
Date Sun, 07 Nov 2010 02:45:02 GMT

You ask good questions. But I'd rather answer the real question you asked earlier than hypothetical
questions that merely test my knowledge of the edges of copyright law.

You said earlier, in essence, that you intended to copy entire web pages owned by others and
that you would store them in an Apache repository somewhere. I see nothing to suggest that
isn't a derivative work, at least as a first guess by a somewhat experienced copyright lawyer.
Doing that would probably be copyright infringement.

Fair use is a defense to the tort of copyright infringement. So the fair use question only
comes up if you admit -- or are found guilty of -- copyright infringement, perhaps because
in this case you created a derivative work. At that point, the court will expect the attorneys
to argue the fair use factors for your particular infringing use, among which are the substantiality
of your copies, the purposes to which you have put them, the effects on the copyright owner's
commercial opportunities, etc. If the amalgam of that analysis is deemed "fair use" by the
court, you don't have to pay infringement damages for your unauthorized derivative works;
otherwise you do.

You have asked below somewhat different questions. If, for example, you calculate the frequencies
of all the letters (or words, or concepts) in a copyrighted work, I don't believe that is
a derivative work at all. Or if you take a copyrighted work and "run it through a statistical
process and then hand out the result," I'd argue in court that that isn't a derivative work
at all. Because there is no copyright infringement, the fair use defense won't be needed at

Just like murder: Unless someone is actually killed, you don't have to plead self defense.
Unless there is actual copyright infringement, you don't have to plead the fair use defense.

So for your earlier question, first let's decide if you are creating a derivative work. I
think you will if you make copies of other people's web sites. Then we have to ask, is your
infringing use a "fair use"? My article summarizes the fair use factors. Perhaps you can make
a first pass at that multi-factor analysis once you convince yourself that you are (or will
be) a copyright infringer by doing what you suggest with web pages?


> -----Original Message-----
> From: Benson Margulies [mailto:bimargulies@gmail.com]
> Sent: Saturday, November 06, 2010 7:13 PM
> To: legal-discuss@apache.org
> Subject: Re: Fair-use data in svn
> Larry, if we ignore, for the moment, the issue of 'publishing' via
> checking text into a public svn, there's a question of fair use which
> I don't feel illuminated on after reading your article.
> If I absorb a stack of copyrighted material, and run it through a
> statistical process, and then hand out the result, have I 'used' it at
> all, fairly or otherwise? The constitutional principle and following
> discussion all seems to be discussing 'information in, recognizable
> derivative of information out.' In an extreme case, if I make a chart
> of the frequencies of all the letters in a copyrighted work, and
> publish the resulting chart, what's the situation?
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