The "Fair Use" law

Some pirating groups now have this disclaimer on their websites and e-mails:

In accordance with Title 17 U.S.C. Section 107, any copyrighted work in this message is distributed under fair use without profit or payment to those who have expressed a prior interest in receiving the included information for non-profit research and educational or criticism purposes only.

After speaking with our lawyer about this, we have this information to share with you:

Here's what the Federal Law on fair use actually says - and I've highlighted the key parts:

§ 107. Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (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. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

A court is the one that is going to decide if any of the list of 6 purposes apply, and then weigh & apply the 4 listed factors as necessary.  I think there's probably a good argument for extending the "teaching" and "educational" language of this section to other kinds of training, though I don't think these Yahoo groups would ever fall within anyone's definition of an educational group, no matter how you defined it.  I've seen this argument floating around for months about these Yahoo swapping groups, and never thought it was a good one. (i.e., I don't think those terms should apply to these kinds of groups - that's not primarily why they were created, and they're being used as a diversionary tactic). 

Overall, I just can't see any court condoning as "fair use" what amounts to unauthorized reproduction -- digital theft .  Laughing at it, or continuing to do it, after being informed that it is unauthorized reproduction of a copyrighted work only makes their offense more egregious, at least in my opinion. 

I don't think a judge would even get to weighing the factors in these instances, then.  I think those are saved for cases such as newspapers that quote just a bit too much of a copyrighted work, and it is challenged as being more than "fair use", for example, under factor #2.  Or a university that distributes copies of a copyrighted material in teaching a course, and perhaps the professor copies an entire book for the class (I've been in one of those), and the author challenges the use under factors #3 and #4 (because the professor has taken away the market value of the book for class members, by copying too much, when maybe just a chapter or two would have sufficed).  Those are just examples.  I think I also mentioned the other day about running into a university policy online for posting student portfolios and complying with fair use principles, and deleting the material within a fairly short time period.  That university seemed to be very conscious of the possibility of copyright infringement from the student portfolios if they remained online too long.