Super Lawyers
William C. Altreuter

Wednesday, August 25, 2004

Here at Outside Counsel we are big Richard Posner fans: judges that are legal philosophers, and literary critics, and intellectuals are rare, and that's just scratching the surface of Judge Posner. He is "guest blogging" at Professor Lessig's site, and I've just caught up with what he is laying down.

How great would it be to take a class from this guy? Here he is on the fair use doctrine: "The doctrine, which has close counterparts in patent and trademark law, permits a degree of unauthorized copying of copyrighted works. Shocking! If a teenager takes a joyride in my car and is arrested, can he defend by arguing that it was a “fair use”? No, but the example points up an important difference between physical and intellectual property, a difference obscured by the use of words like “theft” and “piracy” to describe unauthorized copying. If someone takes my car, he deprives me of its use. If he copies my copyrighted book, I still can read, use, and sell the book, although my publisher’s and my income may be less because one fewer copy will be sold. But maybe not--maybe the copycat wouldn’t have bought the book if he’d had to pay the retail price. And if instead of copying an entire book, a book reviewer quotes a paragraph from it, I may well be better off (in contrast, say, to someone who doesn’t want to drive my car but just store stuff in the trunk); and if he had to get my permission to quote, I might be worse off, especially since reviews would lack credibility if reviewers needed the author’s permission to quote. Unauthorized quotation by book reviewers is an example of fair use."

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