I agree 100% that we need better guidance on how to apply the fair use test. From what i've read, it appears that depending on the type of use at issue, certain factors will weigh into the balancing more than others, and in other types of uses, the other factors weigh more heavily. Fair use cases are very unpredictable because we don't know how the court is going to come down. So many reversals and then re-reversals occur in fair use cases on their way up to the USSC.

With regard to the campbell v. acuff decision, that case said the fourth factor wasn't important here because the issue was parody/criticism. The purpose of using the underlying work was a transformative purpose. That case held that because it was a transformative use, the commercial aspect of it weighed less in the balance. There is no "protectable derivative market for criticism" so there was not much regarding the 4th factor in that case. However, in other cases, the 4th factor does carry extreme weight and this is often the case because of the fact that the derivative market is extremely broad.

My discussion about the 106 derivative work right is certainly a 106 problem but the point was that by fixing 106, it will help to fix fair use and the balancing test. So it is a 106 problem, but it necessarily implicates the fair use analysis.

I will look into patent stuff. Ive never studied patents and know almost nothing about it (except from what i've read in your first paper on Bielski). Thank you for your thoughts

-- AustinKlar - 09 Dec 2011