On what basis is it the textbook case? I'm not a copyright lawyer (or a lawyer of any kind), but here's the relevant section of the USC:
1. the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational
purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value
of the copyrighted work.
Note in particular item 3.
Mind you, the list is not exhaustive and judges are able to give their own interpretation on questions of substantiality. But very small units of copyrighted material (a few hundred words from a book, a 1 second sample from a 4 minute song) can break fair use. So I don't see how copying the entire work passes the substantiality test.
Furthermore, the NYT could have tracked down the source. They got the copy from Booth, Booth wrote it for the Real Paper, and a bit of legwork of the kind journalists are meant to be good at would have revealed that the Real News had been subsumed by the Phoenix.
Even if it's not a slam dunk, it's still a blinding act of inconsistency.
The points in consideration of fair use are just that.
Fair use is an affirmative defense. That is: it's not a right to copy, but a defense against copyright infringement.
There are four points to be considered. Generally a successful defense will hinge on at least one, but it may very well fail at others.
And there are other defenses which will also succeed. In Sega v. Accolade, copyright infringement was not supported, because the role of the work in which infringement was alleged was functional: Accolade were copying a verbatim string from Sega in order to provide game-cartridge / player compatibility. Copyright protection does not apply to facts ... or to functional aspects of a work.
Fair use IS a right to copy. Or more accurately, fair use is a limitation of the copyright holder's exclusive rights.
The term "affirmative defense" simply means the defendant "affirms" or acknowledges the action, but defends it on specific grounds (in this case, that the copying was a fair use and thus not a violation of copyright).
"...the fair use of a copyrighted work...is not an infringement of copyright."
The devil (or the lawyer's profits or the danger to user attempting to make fair use of a copyrighted work) is in the details of considering and balancing those four points, and that is done at the discretion of the judge(s) hearing the case.
Other limitations to the scope of copyright:
§ 102. SUBJECT MATTER OF COPYRIGHT: IN GENERAL
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
- Fair use isn't granted by some license-issuing or -exempting authority. It's determined in court. Meaning: you get sued for copyright infringement, you get lawyered up, you get a court date, you defend yourself. You're still out the costs and time, provided your accuser wishes to follow through. Law is very often a battle of attrition and wills. And often stupidity or arrogance among one or more of the parties involved.
- It's a defense. You're still making an unauthorized copy. That is, limiting a copyright holder's "exclusive rights to do and to authorize" reproductions, derivative works, etc. In order to assert the defense, you've got to be challenged at it.
Simply asserting "fair use" is not sufficient, though a reasonable copyright holder (or her legal counsel) might look at this and say "hrm, he's probably got a point".
I'm not a lawyer either, but from what I've read, the courts seem to evaluate all four of these bullet points when fair use is invoked. It's quite possible to be in complete violation of one or even two points and still qualify for fair use.
Mind you, the list is not exhaustive and judges are able to give their own interpretation on questions of substantiality. But very small units of copyrighted material (a few hundred words from a book, a 1 second sample from a 4 minute song) can break fair use. So I don't see how copying the entire work passes the substantiality test.
Furthermore, the NYT could have tracked down the source. They got the copy from Booth, Booth wrote it for the Real Paper, and a bit of legwork of the kind journalists are meant to be good at would have revealed that the Real News had been subsumed by the Phoenix.
Even if it's not a slam dunk, it's still a blinding act of inconsistency.
(Again: IANAL, TINLA).