The only question I would add is that just because the prior edition is out of print doesn't mean that the supplement problems are not continuing to be used in the current in print supplemental materials. Since copyright law protects expression not ideas, your friend could take the time to re-write example with new company names and language describing the situation in order to avoid the question of infringement altogether. My possible factual change would make fair of continuing materials, if there are any, even more questionable. I would want to check the amount of continuing materials that are continuing to be used, if any. It could affect arguments under the amount used, if he should argue that the copyrighted item is the entire book of test questions (or presentation slides or whatever) and he is using a small proportion of the currently in print test questions. But of course the out of print materials are almost certainly still under copyright protection, so at that point I would negotiate informally (but document the result) with my book rep.
BTW, I ran across an interesting study of books offered by Amazon that indicated, contrary to advocates of copyright extension who argued extending copyright would extend time of book availability, that Amazon offers lots of books from recent years and lots of reprints of old books whose copyright has expired, but there is a noticeable drop in the number of books from years where out of print but still copyright covered is likely.
Ross D. Petty
Professor of Marketing Law and Faculty Scholar
Babson College
Division of Accounting and Law
Babson Park, MA 02457 USA
781 239 5529
-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Lee B. Burgunder
Sent: Friday, April 17, 2015 3:22 PM
To: [log in to unmask]
Subject: Re: Fair Use Question
Brian,
You are right. So right that even your accountant, who can only see things as right or wrong, should have been able to recognize it.
Lee
----- Original Message -----
From: "Brian Halsey" <[log in to unmask]>
To: [log in to unmask]
Sent: Friday, April 17, 2015 12:04:04 PM
Subject: Fair Use Question
Hi everyone;
I'd like some help - if you care to - to settle a little debate between myself and a member of our accounting department.
Accountants tend to see things as right or wrong (to the penny), so when I get into discussions of balancing tests and fair use and "maybe" I tend to lose the faculty member because we attorneys can't always give clear cut answers.
The substance of our debate is about copyright and fair use. My colleague contends that his proposed theoretical use of the test banks and PowerPoints from a previous edition accounting text that he once adopted but has now abandoned is a fair use exception to the copyright statutes. He theoretically provides his own primary materials, but still relies on the old edition's supplements. His statement was that "you can't copyright a debit or credit." My response was that he was correct - you can't copyright debit or credit. Just like I can't copyright the elements of a valid contract or the text of the 4th Amendment. But you can copyright the PowerPoint or problem or example that illustrates it.
Let's assume that the publisher has not granted him a license to use these materials unless he actually has currently adopted the corresponding text. Again, he provides his own primary materials.
My understanding is that the basic concept of fair use under 17 U.S.C.A. ยง 107 permits the use of copyrighted works for purposes of criticism, comment, news reporting, teaching, scholarship, or research. In a determination of the applicability of a fair use defense, courts have generally placed the most emphasis "on the effect of the use upon the potential market for the plaintiff's work."
The statute gives us a balancing test too. My contention is that using a non-adopted (or previously adopted and then abandoned) text's copyrighted supplements for educational purposes in the same type of course that the copyrighted text originally covered, would, using the factors of the four part balancing test, be a copyright violation.
1. The courts will look to the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. Here, this is for non-profit purposes.
2. The courts will also look to the nature of the copyrighted work. Here this is a supplement targeted towards the exact same type of course - there is no transformational use or repurposing. He'd use the same test banks, PowerPoints and sample problems that came from the original, out of print text.
3. The courts will also look to the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Here, for the purposes of our discussion, substantially all of the supplemental materials (PowerPoints and problems) that were in the original supplemental are theoretically being used in the current course.
4. The courts will also look to the effect of the use upon the potential market for or value of the copyrighted work. Here, I contend that this would directly undercut the potential market for the publisher's existing text. ". . . the central question . . . is not whether Defendants' use of Plaintiffs' works caused Plaintiffs to lose some potential revenue. Rather, it is whether Defendants' use-taking into account the damage that might occur if "everybody did it"-would cause substantial economic harm such that allowing it would frustrate the purposes of copyright by materially impairing Defendants' incentive to publish the work." Cambridge University Press v. Patton, 769 F.3d 1232, 1276 (11th Cir. 2014).
Does anyone have any insight? Does it matter that the edition is out of print? Anything that you may know on this is appreciated.
Thanks! Brian
______________________________
Brian J. Halsey, J.D., LL.M., CISSP
Associate Professor of Business Law, West Chester University Chair, Course Delivery, CAPC Academic Review Committee
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