licensing

I went to a presentation by Wendy Gordon “Circularity in Fair Use: The Puzzle of Foregone License Fees" (http://www.bu.edu/law/faculty/profiles/resume/full-time/gordon_w.html) yesterday. Her presentation was about licensing and Fair Use, and she called our attention to the Graham Archives case. Her position is that the Graham case clarifies the Michigan Document Services case. In Michigan Document Services (MDS), a copy shop in Ann Arbor was sued for producing course packs. The use was held to be not a fair use. Part of the court’s reasoning was that if licensing was available for the material in the course packs, then it should be used, or otherwise, the availability of licensing makes the use less likely to be a fair use. Gordon talked about how that is problematic, because any use potentially impacts a potential market, even if that market does not yet exist. One of her examples was that if someone in your neighborhood had major landscaping done such that your house increased in value by $5000.00, and you gave the neighbor a cut of $2000.00 of that $5000.00 because of the increased value, could the neighbor then sue all the other neighbors because they too had benefited from the landscaping? This is potentially a scenario that could come out of mandatory licensing replacing fair use, she said.