2

When commercial publishers want to claim "fair use" privileges in quoting from various sources, one of the guidelines is the question of whether their usage will somehow affect the value of the medium the quote was extracted from.

As I understand it, the emphasis is on competition. If I write a book about peanuts and extract a couple juicy quotes from a book titled Peanuts, and my book sells more copies than Peanuts, then the author of Peanuts might have grounds to sue me.

But suppose I write a political book that is very critical of another political book. I extract a couple quotes to illustrate just how deceitful this other book is. I then go one step farther and advise readers "Do NOT buy this bum's book!"

Obviously, the author's going to be more inclined to sue me. But would they be able to sue me on the grounds that I hurt their business under these circumstances?

To be clear, my book would not be really similar and therefore presumably would not be considered an example of competition. However, it would be very critical of the other book, going so far as calling the author a propagandist and recommending that people not buy his books.

4

You're looking at two related but distinct concepts.

To determine whether you've infringed, a fair-use analysis considers whether you've created a market "replacement" -- in the most straightforward example, by creating a discounted copy that allows a buyer to acquire the work from you, rather than the author.

But what you're talking about is disparagement, which is a key component of criticism, which is in turn one of the most important ends to be obtained through fair-use doctrine.

The U.S. Supreme Court has basically answered your question in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), where Roy Orbison's publisher sued 2 Live Crew for their cover/spoof of "Pretty Woman." The Sixth Circuit held that because the parody was commercial, it would presumptively result in future market harms to Acuff-Rose. But the Supreme Court reversed, holding that such a presumption was unjustifiable because "the parody and the original usually serve different market functions":

When a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act. Because parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically, ... the role of the courts is to distinguish between biting criticism that merely suppresses demand and copyright infringement, which usurps it."

So you should probably feel free to quote judiciously, criticize forcefully, and advocate loudly against the purchase of other works.

1

You're probably on solid ground. The prohibition is against "copying" or "stealing," rather than destruction.

You are allowed to destroy someone else's work by producing a superior product that "outcompetes" them. You are also allowed to make money by demonstrating the deficiencies of someone else's work and convincing other people not to buy their product. In essence, you are performing a public service by raising these issues.

What you are not allowed to do is to compete with someone using a product that directly derived from theirs. For instance, you may not produce a cheap "knock off" of someone else's product and "undersell" them. In essence, you would be "stealing" someone's product and turning it against them because your "copying" allowed you to save money and produce it at a cheaper cost. That's the prohibited behavior.

Things like parodies are ok if they are judged to be "transformative." It is the "transformation" that provides a defense.

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