From: Sandy Thatcher <[log in to unmask]>
Date: Tue, 27 Oct 2015 22:49:46 -0500

In the Perfect 10 case the Ninth Circuit called Perfect 10's market
for its thumbnail images "speculative" even though a company was
already set up tp license such uses (on cell phones, for instance).
So, for some courts at least, it appears not to make a difference
whether the market really exists or not if the court, as Georgia
Harper said, wants to reach a certain policy outcome.

Sandy Thatcher

P.S. This didn't seem to bother Judge Leval when I pointed it out to
him even though he assured me that he would not think that way about
the actually existing market for paperback editions of monographs. I'm
not sure how he can consistently ignore one existing market and accept
the reality and importance of another.


> From: Kevin Smith <[log in to unmask]>
> Date: Tue, 27 Oct 2015 00:03:00 +0000
>
> Please read my post more carefully, Joe.  I am not saying anything
> like what you attribute to me.  Of course established business can
> enter new areas.  And such business are often capable of great
> creativity. Those points are obvious, and irrelevant to what I was
> arguing, which was about fair use and the exclusivity of copyright.
> In the context of fair use, a rights holder should not be able to
> undermine a transformative use simply by asserting that the use usurps
> a potential market they might decide later to exploit.  In other
> words, one business should not be able to use  copyright to circumvent
> the creativity you speak so highly of by another business.  Copyright
> is, by its nature, anti-competitive, and this careful delineation of
> what markets copyright can and cannot foreclose to others is all about
> keeping that anti-competitive Impact within reasonable bounds. Mead
> could not have developed Lexis Nexis, nor Lockhead Dialog, if a
> competitor could get a court to shut down the new, creative business
> by claiming that the market for that new idea was exclusively theirs,
> whether or not they had tried to enter it, or even thought about it.
>
> Fair use exists to keep copyright from overreaching, so as to protect
> some cherished values.  One is free speech, and another is free market
> competition.  Rights holders, of course, want the most expansive
> market exclusivity they can get, since no established business really
> wants competition.  But when it comes to fair use, the courts have
> engaged in a careful delimitation of what markets really should be
> reserved to the rights holder and which ones are, at least, more
> amenable to the creativity of a fair user.  In those markets the
> rights holder is still free to enter if they wish, they just might
> have to compete on an even basis, the way other businesses must.
>
> Kevin L. Smith, M.L.S., J.D.
> Director, Copyright and Scholarly Communications
> Duke University Libraries