[jrm4]

You're strongly and incorrectly implying that "Fair Use" is a clear (and relatively immutable) concept within copyright law, which couldn't be further from the truth. Even if this or that particular case sets out what appears to be solid grounds, one shouldn't take that as gospel by any means.

This mostly has to do with the nature of the wishy-washy nature of the 4 part Fair Use test, which, unlike decent legal tests, doesn't actually have discrete answers. The judge looks at the 4 questions, talks about them while waving her hands, and makes a decision.

Comparing to, e.g., Patent, where you actually do have yes-or-no questions. Clean Booleans. Is it Novel? Is it Non-Obvious? Is it Useful? If any of the above is "No", then no patent for you.

As for the execution of Fair Use, while I haven't gone too deep into Software, I can assure that for music, the thing is just a silly holy-hell mess; confirmed most recently by the "Blurred Lines" case, where NO DIRECT COPYING (e.g. sampling or melody taking) was alleged, merely that the song sounded really similar to "Got to give it up" and that was enough.

So then, I'd say everything either is, or should be, up in the air, when it comes to Fair Use and software.

[cogman10]

Most law is wishy washy. There are very few cut and dry answers in the law (If there were, we wouldn't need lawyers and a court system based on deciphering the law).

All that said, the one thing I'd add about fair use is that it isn't permission to use anything you like, but rather a defense in a legal proceeding about copyright. It's pretty much all about being able to reference copyrighted material with the law later coming in and making final decisions on whether or not that reference went too far. (IE, copying all of a disney movie and saying "What's up with this!" vs copying 1 scene and saying "This is totally messed up and here's why".)

That was a big part of the google oracle lawsuit.

[extra88]

> Is it Novel? Is it Non-Obvious?

Those questions for patents are barely more clear-cut than copyright fair use tests, there is lots of room for disagreement.

It's definitely true that a fair use defense against copyright infringement varies a lot by the field of work and norms can develop which are relevant to court cases. The music field is a mess, the "Blurred Lines" judgement was total bullshit. But the software field is not without its own copyright history and norms so there's no reason to expect everything to go to hell.

[jrm4]

But there's no reason not to either - I suppose my point is, don't take too much as gospel and think about everybody's best "end-goals" and push or pull with or against the law as needed.

[TheSpiceIsLife]

There’s also an aspect of this that varies by size, budget, political clout, etc etc, of the individual or organisation.

The big guns like Microsoft, Google, Oracle, do this sort of thing as a matter of course in their business activities, they have the lawyers, the money, and the ear of members of parliaments, senators etc.

Whereas an individual or small business probably wants to conduct themselves within a more narrow set of adherences.

[nerdponx]

Unanswered question, as far as I know: is a trained model a derivative work? If the model accidentally retains a copy of the work, is that an unauthorized copy?

[zarzavat]

In my opinion, the model would not be an unauthorized copy given that it's primary purpose was for some other task and the inclusion of the work was merely incidental.

The unauthorized copy arises when someone gets the work out of the model.

Of course if you make a model explicitly for the purpose of evading copyright then the courts will see through that ploy.

[MAGZine]

I think it would be pretty easy to stake opinions on those "boolean questions."

Is (was?) a swipe gesture novel? Is it non-obvious?

[Arelius]

I think what the parent is stating is that even though the patent questions can have debate, once you settle the question "Is it Novel" as yes or no you can determine if the item is patentable... wheras for fair-use, the questions themselves aren't yes/no questions, and further, they are just used as balancing factors, so even if everyone agrees on "the effect of the use upon the potential market for or value of the copyrighted work" it's only weighed as a factor for how fair the use is, and broadly left up to the hand-waving of the particular judge.

[jrm4]

Oh, absolutely. Kind of furthers my point. Patent is a silly mess in a lot of ways, but at least there's something like Booleans in it. "Fair use" doesn't even have THAT.