Leval on fair use

At a talk today (should be posted in about a week), Judge Leval gave a beautiful explanation of
why good faith/bad faith shouldn’t matter to fair use. Boiled down and stripped
of its eloquence: (1) A publisher should be able to examine the relevant works
side by side and determine whether the use is fair, without investigating the
good faith of the second author/the means by which the second author acquired
access to the first work. (2) The inquiry should be done on the
pleadings/summary judgment, and considering good faith makes that
difficult.  (3) The ultimate interest in
fair use is the public’s, and if the public is entitled to the new work/new use
and benefits from it there’s no reason that the defendant’s means of access
should matter.
Judge Leval also insisted that the fourth fair use factor was the
key, even more than factor one, and that therefore the result in TVEyes was
correct.  I wish he had addressed the
record evidence in that case that Fox didn’t license everything—it put video it
was later embarrassed by in the Memory Hole. 
That seems to me quite relevant even from a market-focused perspective,
especially since people looking at news shortly after broadcast, when they’re
scanning for topics, can’t be sure what moments will later be awkward for Fox
to acknowledge.

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