Re: Kobrin on Copyright of unpublished works: post hoc argument.

wbarwell@Starbase.NeoSoft.COM (William Barwell) wrote:

>In article <806011024snz@sidaway.demon.co.uk>,
>Tony Sidaway wrote:
>>In article <3ucioj$99g@netaxs.com> rkeller@netaxs.com "Rod Keller" writes:
>>
>>[quoth Helena Kobrin, church intellectual property holder's lawyer:]
>>>
>>> "In addition, your downloading of the copyrighted and trade secret OT VII
>>> materials also violates laws prohibiting copyright infringement and trade
>>> secret misappropriation. Your use and disclosure of these materials is
>>> *not* fair use. No case in the United States has ever found fair use to
>>> apply to copying unpublished materials, as even Dennis Erlich's attorney
>>> had to admit in open court.
Ms. Kobrin should know better than to rely upon her adversary to do legal research for her. Arica Institute, Inc. v Helen Palmer and Harper & Row Publishers, Inc., 761 F.Supp. 1056 (SDNY 1991) judged that Palmer's use of largely unpublished material constituted fair use. This opinion was reached *before* the fair use section of the copyright law was amended specifically to include unpublished works. The courts were retreating from the extremist view of unpublished works as untouchable even *before* legislation was passed.

>>>There is also no fair use defense to trade secret misappropriation."
>
>> The trade secret issue will not stand up where the documents quoted
>> are no longer trade secrets: for instance, the OT1-OTVII documents
>> have all been on public file since the Fishman case. Other cult
>> documents may yet count as trade secrets.
>>
>> The "no case in the US has ever found fair use to apply to copying
>> unpublished materials" argument is original, but by what she misses
>> out Ms Kobrin reveals that the issue has not been decided. Otherwise
>> she would have cited cases where fair use was ruled out _because_ a
>> work was unpublished.
>Diane Richardson pointed out that this case WAS decided. And a bunch of
>Publishers leaned on Congress to change that law. Since the law has been
>changed, there is no reason to take this to court except to challenge
>Congress's amendment of this statute.
>The unpublished materials problem seems to be nonexistant, but let us
>chew this over a bit first on the proper groups.
>Diane, can you give us cites on when these amendments were changed?
I'll put in some time in my friendly local law library this week, Pope. In the meantime, here's a fairly concise history of the legislation, quoted from "The Tell-Tale 'Heart': Determining 'Fair' Use of Unpublished Texts," by Karen Burke LeFevre, published in Law and Contemporary Problems, vol. 55, no. 2 (Spring 1992). This article was written before the legislation was actually passed. BTW, this whole issue of Law and Contemporary Problems deals with fair use doctrine and copyright, and is considerably easier to read than most of the law review stuff.

[p. 170] "The controversy over fair use of unpublished works is being debated in political, professional, and legal arenas. Following an outcry from historians, biographers, journalists, book and magazine publishers, and others, legislation was introduced in Congress in 1990. The bills introduced by Representative Robert Kastenmeier and Senator Paul Simon proposed to amend copyright law to clarify that fair use extends to unpublished as well as published works [HR 4263 and S 2370, 101st Cong., 2d Sess 54 (1990)]. According to Representative Kastenmeier, the legislation aimed 'to clarify that, while the unpublished nature of a work is certainly relevant to the fair use analysis, it should not alone be determinative.' [Joint Hearing on HR 4263 and S 2370 before the House Committee on the Judiciary, Subcommittee on Courts, Intellectual Property, and the Administration of Justice and the Senate Committee on the Judiciary, Subcommittee on Patents, Copyrights, and Trademarks (July 11, 1990) (opening remarks of Rep. Robert W. Kastenmeier)].

The bills received a show of support, including supportive Congressional testimony from some of the judges involved in the recent decisions about fair use of unpublished works, such as district court judge Pierre Leval and the chief judge of the Court of Appeals for the Second Circuit, James L. Oakes [Id. (statements of Pierre N. Leval, U.S. District Judge, Southern District of New York, and James L. Oakes, Chief Judge, U.S. Court of Appeals, Second Circuit) . . . .] However, the legislation died in committee. Apparently representatives of the computer software industry had objected to the new law, fearing that it might reduce the protection for unpublished computer source code. A *Wall Street Journal* article described the dilemma: 'A *snippet* may be *fair use* of unpublished material to an author, but a snippet taken from an unpublished software program under fair-use doctrine could be enough to *decompile* the entire program.' [James M. Perry, 'What Publishers Call Quoting, Computer Firms Call Piracy as Industries Face Off in Capitol Hill, Wall St J A24 (April 23, 1991).] Bruce Lehman, counsel for the Software Publishers Association, said, 'They are talking about our crown jewels' [Id.].

In early 1991, the Authors Guild established a Committee to Preserve Fair Use to work to eliminate the presumption against using unpublished material. According to Committee Chair J. Anthony Lukas, the presumption 'threatens truly independent biography.' ['Other People's Words: Fair Use or Fair Game?' NY Times E7 (Feb 24, 1991). See also Roger Cohen, 'Writers Mobilizing Against Restrictions on Using Quotations,' NY Times C11 (Feb 20, 1991). Following discussions with representatives of various concerned groups, a new version of an amendment to the Copyright Act fair use section was introduced in the House by Representative William J. Hughes and in the Senate by Senator Simon. Like the previous 1990 bill, the 1991 legislation attempted to clarify that unpublished work is eligible for fair use, but with some qualification [In the 102d Congress, Senator Simon, with Senator Leahy, proposed the following addition to section 107 of the Copyright Act, concerning fair use: 'The fact that a work is unpublished is an important element which tends to weigh against a finding of fair use, but shall not diminish the importance traditionally accorded to any other consideration under this section, and shall not bar a finding of fair use if such a finding is made upon full consideration of all of the above factors.' S 1035, 102d Cong, 1st Sess (May 9, 1991). The previous bill had simply stated that both published and unpublished works could be eligible for fair use. In the House of Representatives, additional testimony was heard in 1991 by the Subcommittee on Intellectual Property and Judicial Administration [Perhaps because the wording of this new version was arrived at through compromise among the interested parties (including representatives of authors, publishers, and the computer software industry) before it was introduced, there was apparently little controversy in the Senate. S 1035 was reported favorably out of the Senate Judiciary Committee (June 13, 1991), and passed by the full Senate in September 1991. The legislative history is summarized in 'Fair Use of Unpublished Works,' S Rep No 102-141, 102d Cong, 2d Sess (July 8, 1991). In the House of Representatives, Title I -- Fair Use of HR 2372, introduced by Representative William J. Hughes with Representative Moorehead, was identical to the Senate version except for the last sentence, which read, 'if such a finding is made upon full consideration of all the factors set forth in paragraphs (1)-(4).' HR 2372, 102d Cong, 1st Sess (May 9, 1991). This bill did not advance beyond the subcommittee; however, another version was introduced in the House in March of 1992, as discussed in text that follows above and in (later footnote)]. Subsequent discussion apparently revealed some concern in this House subcommittee about language. Representative Hughes later introduced a new bill regarding fair use of unpublished material in the House (HR 4412) in March of 1992 [The text of HR 4412, introduced March 5, 1992, amends section 107 of title 17 to read as follows: 'The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the factors set forth in paragraphs (1) through (4).' The House Subcommittee on Intellectual Property later changed the end of the sentence to read 'upon consideration of all the above factors' and then approved and sent the bill to the House Judiciary Committee, where is was awaiting mark-up at the time this article was completed.]"

>We might need them.
The bill was finally passed as Public Law 102-492, an amendment to the fair use statute.

Just to make sure that Ms. Kobrin understands the purpose of this legislation, here's some more from "Floor Statement of the Honorable Paul Simon on Introduction of Legislation to Clarify Fair Use Doctrine under Copyright Law," May 9, 1991, United States Senate. The quote also comes from Karen Burke LeFevre's article cited above:

"In introducing the 1991 bill, Senator Paul Simon said that this legislation would clarify the matter 'that the unpublished nature of a work should not create a virtual *per se* bar to its use. Unpublished works, he said, would receive the complete analysis currently used for all copyrighted works. This bill was intended to 'restore the appropriate balance between copyright owners and the interests of scholarship and journalism,' a balance that recent court decisions had disturbed."

LeFevre also writes:

"If and when new legislation passes, speculation about its effects will continue for some time until more cases are decided by the courts. If this legislation clearly legitimizes some use of unpublished works, then even if it is not perfect, it will certainly be an encouraging step, especially if the courts consider not only the letter of the law but also the legislative history and intent. Furthermore, the process of legislative review has been helping to heighten the awareness of many people about what is at stake and why it matters."

[snip]

>Legal expert? Is there someway to challenge something liek this
>without having to go to court in a tort to decide these things
>with assholes determined to put a head on a pike of those who try to use
>their fair use rights under the copyright provisions and trade law statutes?
>Or do we have to spend years and $$ fighting for our first amendment
>rights in such cases to decide we do have rights?
You know IANAL, Pope, but as a relatively well-informed citizen it certainly looks to me as though Ms. Kobrin's current e-mail campaign involves a great deal more posturing and puffing than it does legal acumen. Unfortunately, as long as the "Church"<spit> of Scientology[tm] is willing to spend nearly one-third of their not insignificant annual income litigating the heck out of anyone they don't like, an individual could spend an awful lot of time and money proving Ms. Kobrin's employers wrong.

>Pope Charles SubGenius Pope Of Houston Slack!
>Remember Paulette Cooper!
>Remember Paulette Cooper!
>Remember Paulette Cooper!
I remember, Pope.

Diane Richardson referen@ibm.net